Torture as an institution

Cross posted at Political Arguments.

Via Lawrence Solum, Jeremy Waldron explains—with characteristic clarity—what's wrong with the "ticking bomb" argument for the justification of torture.

[Prof. Debra] Livingston: Let's assume a nuclear device is set to go off in an American city. Are we justified in using torture on 20 suspected terrorists to find out where it is before it kills thousands of people?

Waldron: It's a bad and corrupt question, but I said I would answer it and I will. The answer that law and morality and religion requires that in no circumstances is torture to be used. The law is unambiguous, it's a total prohibition. And for some of us, our morality dictates the same. We would take responsibility for the consequences of the bomb's explosion, for the consequences of our morality.

The question is corrupt for a number of reasons. It is designed to bring the opponent of torture down to the level of the defenders of torture for a single case. The question is corrupt factually; it supposes that torture is capable of getting accurate information. The war on terror is a war of information and intelligence. To think primarily in terms of TV scenarios of massively important pieces of information that we know are there is not realistic. The nature of the relationship between torturer and victim means that the victim will tell the torturer what the torturer thinks he wants to know.

Also, the question assumes that somehow we have the people who are trained to torture, yet who will do it only in this one case. There will be a cadre of torturers sitting around looking for work. There will be a culture of torture developed, changing the politics, training and discipline of the CIA and FBI. Everything we know about torture from the 20th century is that it grows out of control. We unleash everything depraved and sadistic in human affairs. We need to think about the trauma to the legal system, of having it be known that we have concocted room for torture. Everything that's had its reference on respect for human dignity begins to totter and crumble under this response of torture.

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To extend Waldron's argument, framing the question of torture in terms of individual actions corrupts the issue because it decontextualizes the category of action called "torture". There is no way of defining torture—in the sense in which the term is used in the debate over Guantanamo or Abu Ghraib prisoners—outside a complex structure of moral, political, and legal institutions. The subject of our condemnation or defense ought not be, then, the individual who tortures or the particular instance of torture but the practice of torture itself and the institutions in which the practice occurs.

I think that an analogy can explain the distinction. I argued before that the principles that govern justice between generations as a matter of social justice are not the same that govern intergenerational transfers between individuals. Thus, some famous objections to intergenerational justice (such as the "non-identity" problem) make little sense when institutions, not individuals, are taken as the subjects of justice. What defines our duties towards future persons is no that we (individually) had a role in producing a particular individual in the future, but rather that we (generically) occupy the position of present persons with respect to whoever will occupy the position of future persons. The relationship between our positions, not between the particular individuals who occupy those positions, is what defines their respective duties. As Rawls famously put it,

The principles of justice for institutions must not be confused with the principles which apply to individuals and their actions in particular circumstances. These two kinds of principles apply to different subjects and must be discussed separately.

Likewise, the practice of torture is not socially problematic, in the first instance, because of what the person with the scourge does to the one tied to the whipping post, but because of the context of rules that defines, authorizes and gives meaning to the practice. The cruelty of the act may be condemned at an individual level, but is is not politically problematic. The justification of the individual act, in the absence of the category of torture, is remitted to the criminal code or—absent that—to the realm of morality. But if there is such a category, the torturer can refer to the rules of the practice to justify his actions; to argue against the particular act of torture, in that case, is to argue against the practice as it stands.

The justification can no longer be individual, but institutional. The proponent of torture, as Waldron suggests, must then explain the way in which this institution will be set up, who will administer it, and what its relationship will be to the rest of the legal system, both in terms of the positive law and of its underlying ethical norms. This, I presume, is more than what the current proponents of torture are willing to bear.


UPDATE: Via Brian Leiter, the American Constitution Society has the video of the Waldron and Yoo debate.