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Torture and the Problem of Dirty Hands

Published online by Cambridge University Press:  20 July 2015

Tamar Meisels
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Extract

This paper looks at the contemporary debate over investigative torture in liberal democracies besieged by terrorism, from the viewpoint of the state leader, politician, judge or individual interrogator, called upon to make life-and-death decisions. It steers away from the classic debate between utilitarians and Kantians regarding moral justification, and, following Michael Walzer presents the issue as a specific case of "the problem of dirty hands in politics". Contra Walzer, the paper suggests, among other things, that the notion of dirty hands functions not only within moral theories that include absolute prohibitions but also within consequentialist theory, and that it is therefore far wider, practically illuminating and more applicable than Walzer originally assumed. Later it addresses Alan Dershowitz’s controversial suggestion requiring judicial "torture warrants", and argues that this too should be viewed in light of the notion of dirty hands rather than within the conventional debate over justifications. Finally, it suggests that, while torture may be morally unjustifiable on anything but purely consequentialist grounds, circumstances may offer the individual decision maker an excuse, rather than a justification, for resorting to torture under very restricted conditions.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 21 , Issue 1 , January 2008 , pp. 149 - 173
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2008

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References

I am grateful to Alan Dershowitz, David Enoch, Cecile Fabre, Guy Sela, and particularly to Jeremy Waldron, for very useful comments on previous drafts of this paper.

1. Shue, Henry, “Torture” (1978) 17:2 Phil. & Pub. Affairs 124 at 125-26Google Scholar. Ignatieff, Michael, The Lesser Evil—Political Ethics in an Age of Terror (Edinburgh: Edinburgh University Press, and Princeton, NJ: Princeton University Press, 2004)Google Scholar at ch. 5 at 137.

2. Shue, supra note 1 at 130.

3. Sussman, David, “What’s Wrong with Torture?” (2005) 33:1 Phil. & Pub. Affairs 1 at 14CrossRefGoogle Scholar.

4. Sussman, ibid. at 4.

5. Supra note 1 at 143.

6. Cf. Langbein, John H., “The Legal History of Torture” in Levinson, Sanford, ed., Torture—A Collection (Oxford and New York: Oxford University Press, 2004), ch. 5 at 93 Google Scholar. For criticism of the pro-torture arguments voiced by lawyers and officials of the Bush Administration, see Waldron, Jeremy, “Torture and Positive Law” (2005) 105 Colum. L. Rev. 1681 at sec. I-II at 1688-1717Google Scholar. See also Lukes, Steven, “Liberal Democratic Torture” (2005) 36 British J. Pol. Science 1 at 5-9CrossRefGoogle Scholar.

7. Jean Bethke Elshtain, “Reflection on the Problem of ‘Dirty Hands’” in Levinson, supra note 6 at 78.

8. E.g., Shue, “Torture,” supra note 1 at 141. Some justifications are not primarily utilitarian but argue that consequences come in to play a secondary role, at least at some cataclysmic point. See, for example, Moore, Michael’s, “soft deontology” in Moore, Michael, “Torture and the Balance of Evils” (1989) 23 Israel L. Rev. 280 Google Scholar and Nielsen, Kai, “There is No Dilemma of Dirty Hands” in Rynard, Paul & Shugarman, David P., eds., Cruelty and Deception—The Controversy Over Dirty Hands in Politics (Peterborough. ON: Broadview Press, 2000)Google Scholar ch. 8.

9. Waldron, supra note 6 at 1715.

10. There is, as I say at the outset, no shortage of liberal scholars who argue against torture. The issue to be unraveled here is of a different kind and it presupposes, rather than argues for, a moral prohibition on torture. It addresses situations in which upholding what we take to be an absolute moral wrong bears an unbearable price in terms of innocent human life.

11. Walzer, Michael, “Political Action: The Problem of Dirty Hands” (1973) 2:2 Phil. & Pub. Affairs 160 at 167Google Scholar, reprinted in Levinson, supra note 6 at 64-65. References are to this reprinted version.

12. Lukes, supra note 6 at 2.

13. Supra note 11 at 64-65.

14. Ibid. at 63.

15. Nielsen, supra note 8.

16. Ibid. at 140-41. For a specific discussion of torture within a ‘lesser evil theory,’ see Ignatieff, supra note 1 at 135-44. It is interesting to note that Ignatieff, who dedicates an entire volume to his theory of “the lesser evil,” resists justifying outright torture on these grounds.

17. Nielsen, supra note 8 at 143-45. At various points I discuss Michael Moore’s “threshold deontology” alongside his view on torture, which is also a form of “soft deontology.” See Moore, supra note 8.

18. Nielsen, supra note 8 at 150.

19. Coady discusses this approach toward exemptions from profound moral obligations in Coady, C.A.J., “Terrorism, Morality and Supreme Emergency” in Primoratz, Igor, ed., Terrorism—The Philosophical Issues (New York: Palgrave Macmillan, 2004) at 83.Google Scholar

20. Nielsen, supra note 8 at 152.

21. Ibid. at 151-53.

22. Curzer, Howard J., “Admirable Immorality, Dirty Hands, Ticking Bombs, and Torturing Innocents” (2006) XLIV Southern J. Phil. 31 at 46CrossRefGoogle Scholar.

23. “Perhaps we tend to associate dirty hands with politics because in political life the good to be attained tends to be framed in general terms and the wrongs committed highly specific: Spreading freedom around the world social justice, the Defense of the Realm, the Cause of the Revolution, The Glory of the Republic...” Lukes, supra note 6 at 3.

24. Walzer, supra note 11 at 69-70.

25. Curzer, supra note 22 at 46.

26. Ibid.

27. Nagel, Thomas, “War and Massacre” (1972) 1:2 Phil. & Pub. Affairs 123 at 143Google Scholar. (Reprinted in Scheffler, S., ed., Consequentialism and its Critics (Oxford: Oxford University Press, 1988).Google Scholar) All references are to the former.

28. Ibid. at 124-25.

29. Ibid. at 125-26, 129, 136-37, see esp. 143. For his reference to torture see pp. 124, 137.

30. Ibid. at 143.

31. Walzer on Machiavelli, supra note 11 at 69.

32. Curzer, supra note 22, esp. at 31-32, 47-49.

33. Ibid. at 48-49.

34. Nagel, supra note 27 at 143.

35. Ibid. at 125.

36. Walzer, supra note 11 at 66.

37. Lukes, supra note 6 at 5. See also: Walzer, supra note 11 at 66-67.

38. Nagel, supra note 27 at 124.

39. Walzer, supra note 11 at 66.

40. Ibid. at 66.

41. Ibid. at 67.

42. Ibid.

43. See Mackie, J.L., J.L., Ethics—Inventing Right and Wrong (London: Penguin Press, 1990)Google Scholar. See also: Coady, supra note 19 at 82.

44. Cf. Mackie, supra note 43 at 137.

45. ‘The distinction between act and rule utilitarianism is admittedly problematic and depends on a theory of rules which disallows the endless addition of new (kinds of) detail as exceptions which are nonetheless part of the rule itself. How to frame such a rule for rules is probably impossible.’ I am grateful to Richard Bronaugh for this comment. I am nonetheless assuming here throughout that there is a valuable and tenable distinction between Act and Rule Utilitarianism.

46. Mackie, supra note 43 at 136.

47. Lukes, supra note 6 at 12, citing Dershowitz, Alan M., Why Terrorism Works: Understanding the Threat, Responding to the Challenge (New Haven, CN: Yale University Press, 2002) at 137 Google Scholar. Of course it could also be argued that the Washington Post may not have reported the facts objectively, and that one case over the past decade, cited repeatedly, hardly proves the scenario typical or the means employed efficient.

48. Israel Supreme Court Judgment on the interrogation methods Applied by the GSS, September 1999, Statement of court president A. Barak, http://elyon1.court.gov.il/files_eng/94/000/051/a09/94051000.a09.HTM (accessed January 31, 2007). Also cited by Ignatieff, supra note 1 at 140.

49. Shue, supra note 1 at 141, 143.

50. Waldron, supra note 6 at 1749.

51. E.g., Coady, supra note 19 at 82, believes that the indirect utilitarian is ultimately for most, if not all, practical purposes, a bedfellow of the deontologist.

52. Nagel, supra note 27 at 124-28.

53. This is an effect the act-utilitarian can also consider.

54. Ignatieff, supra note 1 at 18, 143.

55. Waldron, Jeremy, “Security and Liberty: The Image of Balance” (2003) 11 J. Pol. Phil. 191 CrossRefGoogle Scholar; Waldron, “Torture and Positive Law,” supra note 6.

56. Shue, supra note 1 at 141, 143.

57. Of course both the absolutist and the rule utilitarian could alternatively opt for changing the “No Torture” rule to a “No Torture, except when the bomb ticks” rule, which would be equally absolute.

58. Shue, supra note 1 at 141.

59. Walzer, supra note 11 at 65.

60. Dershowitz, Alan, Shouting Fire: Civil Liberties in a Turbulent Age (New York: Little, Brown, 2002) at 477.Google Scholar

61. Dershowitz, Why Terrorism Works, supra note 47 at 248.

62. E.g.: Waldron, “Security & Liberty,” supra note 55 at 206. Waldron, “Torture and Positive Law,” supra note 6 at 1713-17, esp. at 1714 with reference to Dershowitz, Why Terrorism Works, ibid. at 143-46. See also: Elaine Scary, “Five Errors in the Reasoning of Alan Dershowitz” in Levinson, supra note 6 at 284.

63. Dershowitz, “Tortured Reasoning” in Levinson, supra note 6 at 265.

64. Ibid. I am extremely grateful to Alan Dershowitz for some important clarifications regarding his proposal, and in particular, for very useful critical comments on a previous version of this paper.

65. Dershowitz, Shouting Fire, supra note 60 at 477.

66. Dershowitz, “Tortured Reasoning,” supra note 63 at 257, 258, 266, 274.

67. Ibid. at 264.

68. Ibid, passim.

69. Shue, supra note 1 at 142.

70. Dershowitz, “Tortured Reasoning,” supra note 63 at 259.

71. Ibid. at 266. Or perhaps Dershowitz, Keyes and Walzer are debating torture not only within an imperfect world and in a non-optimal moral situation, but also in the framework of a totally non-ideal type of moral theory.

72. For all the good reasons to uphold an absolute legal ban on torture see Waldron, “Torture and Positive law,” supra note 6. For Waldron’s critique of Dershowitz and torture warrants, see 1713-17.

73. Dershowitz, Shouting Fire, supra note 60 at 475. Walzer, supra note 11 at 67.

74. Shue, supra note 1 at 141.

75. Moore, supra note 8 at 328: “It just isn’t true that one should allow a nuclear war rather than killing or torturing an innocent person.”

76. Shue, supra note 1 at 141.

77. Moore, supra note 8 at 288.

78. Francis Kamm uses a more specific analogy in order to defend the torture of guilty and knowledgeable terrorists. “Suppose A deliberately takes B’s crucial organs. A is captured and is no longer a threat. However, the only way to save B is to transplant all of A’s organs into B. I think doing so is permissible.” Kamm, F.M., “Failure of Just War Theory: Terror, Harm and Justice” (2004) 114:4 Ethics 650 at 659CrossRefGoogle Scholar.

79. Nagel, supra note 27 at 142-43.

80. Ibid. at 136.

81. Ibid.

82. Ibid. at 136-37.

83. Smart, J. & Williams, B., Utilitarianism: For and Against (London: Cambridge University Press, 1973) 92.CrossRefGoogle Scholar

84. E.g., Nagel, supra note 27, esp. at 143; Anscombe, Elizabeth, “Modern Moral Philosophy” (1958) 33 Philosophy 17 CrossRefGoogle Scholar. See also Michael Moore, who discusses these various views with regard to torture and rejects Williams’ stand, in Moore, supra note 8 at 337-38.

85. Walzer, supra note 11 at 67, quoting Austin, J.L., “A Plea for Excuses” in Philosophical Papers, Urmson, J.O. & Warnock, G.J., eds. (Oxford: Oxford University Press, 1961) 123.Google Scholar

86. Walzer, ibid., 68.

87. Dershowitz, Shouting Fire, supra note 60 at 475.

88. Moore, supra note 8 at 284.

89. Ibid. at 283-86, where Moore raises a variety of arguments against employing the necessity argument as a defense of torture; Dershowitz, Alan M., “Is it Necessary to Apply ‘Physical Pressure’ to Terrorists—And to Lie About It” (1989) 23 Israel L. Rev. 192 at 196Google Scholar.

90. See, e.g., Fletcher, George, Rethinking Criminal Law (Boston, MA: Little, Brown, 1978) at 759, 762, 799-800, 810-11Google Scholar.

91. Moore, supra note 8 at 282. For the report see The Landau Commission Report (1989) 23 Israel L Rev. 216.

92. Israeli supreme court, sitting as the high court of Justice, HCJ 5100/94 May 5 1998, Jan. 13 1999, May 26 1999. http://elyon1.court.gov.il/files_eng/94/000/051/a09/94051000.a09.HTM (accessed January 31, 2007).

93. Dershowitz, supra note 89 at 197. Moore, supra note 8 at 286, makes a similar point about necessity clauses referring to the unusual and unexpected.

94. Dershowitz, supra note 89 at 197.

95. Ibid. at 195-96.

96. Ibid. at 198.

97. I am grateful to Chaim Gans for this comment.

98. Israeli Supreme Court Justice Barak states in his Judgment on the interrogation methods Applied by the GSS, September 1999 that “necessity” can be invoked retroactively by agents of the state defending themselves against charges of torture. http://elyon1.court.gov.il/files_eng/94/000/051/a09/94051000.a09.HTM (accessed January 31, 2007).

99. International Covenant on Civil and Political Rights. Adopted Dec. 16, 1966. See http://www.ohchr.org/english/law/ccpr.htm (accessed 3 May 2007).

100. ICCPR, ibid, Article 7.

101. Ibid., Article 4(1).

102. Ibid, Article 4(2).

103. I am very grateful to Jeremy Waldron for pointing all this out to me. See also his discussion of the prohibition on torture in the ICCPR in: Waldron: “Torture and Positive Law,” supra note 6 at 1688.

104. ICCPR, Article 4(1).

105. The United Nations Convention Against Torture and Other Inhuman or Degrading Treatment or Punishment, Part I, Article 2. Adopted by the General Assembly on December 1975 [resolution 3452 (xxx)]. http://www.hrweb.org/legal/cat.html accessed May 4, 2007.

106. Cohen, Meir Dan, Harmful Thoughts, Essays on Law, Self and Morality (Princeton, NJ: Princeton University Press, 2002) at 47.Google Scholar

107. Admittedly, the distinction between justifications and excuses as applied in the case of actions supported by a legal policy to excuse them raises a certain difficulty. Excusing the state official for torturing in extremis is justified as a policy or practice in law, and so, it could be argued that the act of torturing is itself justified legally—it is all right to excuse the wrongdoer, perhaps required. Despite this ambiguity, I hold to the conclusion states in the above text whereby viewing a rare instance of torture under conditions analogous to extreme duress as both morally and legally unjustifiable, while at the same time excusing the culprit from full repercussions of the law, is the best policy solution, as well as the most just. Though I differ with regard to the language of “necessity,” I think this conclusion is in keeping with Israeli Supreme Court Justice Barak’s ruling on torture, see: http://elyon1.court.gov.il/files_eng/94/000/051/a09/94051000.a09.HTM.

108. Moore, supra note 8 at 340-42, with reference to Dan-Cohen, Meir, “Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law” (1984) 97 Harv. L. Rev, 625 CrossRefGoogle Scholar. Reprinted in Dan Cohen, supra note 106 at ch. 2 (references are to the latter).

109. Dan-Cohen, supra note 106 at 37-40.

110. Ibid. at 40-41.

111. Ibid. at 42-43, 46-47.

112. Ibid. at 43.

113. Cf. Moore, supra note 8 at 340-41. Note that Moore, unlike me, actually justifies some investigative torture.

114. Walzer, supra note 11 at 62-63.

115. Dan-Cohen, supra note 106 at 47; Moore, supra note 8 at 341.

116. Dan Cohen, ibid. at 47.

117. Dan-Cohen, supra note 106 at 41-42, on the difference between the model of acoustic separation and the real world. Moore, supra note 8 at 341. For example they can hear the Barak ruling from 1999, cited earlier, which enables interrogators to cite “necessity” as a retroactive defense.

118. Moore, ibid. at 341.

119. Ibid. at 327-34.

120. Ibid. at 342.

121. Note that, aside from his theory of acoustic separation, Dan-Cohen discusses the dilemma of dirty hands within the law, inter alia apropos the advantages (versus disadvantages) of the legal system’s segregating normative messages by means other than acoustic separation, such as selective transmission (e.g. by vagueness), etc. The problem of dirty hands, as he points out, exists not only in politics but also in law. I cannot possibly delve into this aspect of the dirty hands issue in this connection, nor am I convinced that there is reason to do so here. Nevertheless, it is worth pointing out that certain aspects of Dan-Cohen’s discussion of dirty hands in law may have some bearing on the issue of legislation about torture. For Dan-Cohen on dirty hands, see supra note 106 at 68, 75, 259.

122. Cf. Moore, supra note 8 at 284. See also Justice A. Barak, supra note 92, http://elyon1.court. gov.il/files_eng/94/000/051/a09/94051000.a09.HTM. “Necessity” cannot authorize the GSS in advance to use physical methods of interrogation.

123. Nielson and Moore, supra note 8, both believe that, however excruciating the decision; torture would be the right, justifiable action under the circumstances.

124. Walzer, supra note 11 at 69-70. Note that Walzer is not convinced that this is the appropriate reading of Machiavelli, but he does admit that Machiavelli offers no account of the effect of bad deeds on the successful prince’s soul or conscience.

125. Walzer, supra note 11 at 65, 71-72. See Nielson, supra note 8 at 148.

126. Walzer, supra note 11 at 72-73.

127. Ibid. at 74.

128. Ibid. at 65.

129. Walzer comments that Machiavelli’s Prince “must do bad things well. There is no reward for doing bad things badly.” Ibid. at 70.