By In Applied Ethics, NDPR Discussion Forum, Political Philosophy Comments (21)

NDPR Forum: Fritz Allhoff’s Terrorism, Ticking Time-Bombs, and Torture (Reviewed by Chris Morris)

Welcome to another installment of our NDPR Forums, in which we invite both the author of a book reviewed in NDPR, as well as the reviewer, to talk about the review, the book, and anything else related to the topic. We also welcome anyone else to jump in to comment on any of those topics as well. Today we are opening a thread on Fritz Allhoff’s book Terrorism, Ticking Time-Bombs, and Torture: A Philosophical Analysis (University of Chicago Press), which was reviewed last week in NDPR by Chris Morris. Blurbs below the fold.

Book Blurb: The general consensus among philosophers is that the use of torture is never justified. In Terrorism, Ticking Time-Bombs, and Torture, Fritz Allhoff demonstrates the weakness of the case against torture; while allowing that torture constitutes a moral wrong, he nevertheless argues that, in exceptional cases, it represents the lesser of two evils. Allhoff does not take this position lightly. He begins by examining the way terrorism challenges traditional norms, discussing the morality of various practices of torture, and critically exploring the infamous ticking time-bomb scenario. After carefully considering these issues from a purely philosophical perspective, he turns to the empirical ramifications of his arguments, addressing criticisms of torture and analyzing the impact its adoption could have on democracy, institutional structures, and foreign policy. The crucial questions of how to justly authorize torture and how to set limits on its use make up the final section of this timely, provocative, and carefully argued book.

Review Blurb (Morris): Fritz Allhoff’s book presents a careful and thoughtful defense of the limited use of torture in certain situations. His defense is in part motivated by the challenges of contemporary, post-9/11 terrorism. It is narrowly focused on the ethics of torture, conceived of apart from policy and law. And he addresses common criticisms of torture. In all, it is a forceful defense of torture, one that should be taken seriously by all interested in the debates about the topic.

Allhoff is a moral utilitarian, and much of his argument is consequentialist. He bends over backward to make a more general case for “exceptional” torture, considering broader considerations in favor of limited torture. He does a decent job developing the broader case, but I think it still fails. More interestingly, I think it shows the ways in which act-consequentialism in ethics (and rational choice theory) distorts our reasoning. Allhoff situates his argument in contemporary concerns about terrorism, reasonably in my opinion. He focuses on the ethics of limited torture in these special ticking bomb cases. “In all cases (and all else being equal), if we can choose a lesser harm to a greater one, we should. In ticking time-bomb cases, torture is the lesser harm. Therefore, we should torture in those cases.” (116, see also 195) The general principle may seem plausible to some initially, but of course most who appreciate the role that norms, rules, and principles play in our reasoning and our lives will reject it as a general principle. Many opponents of torture have of course raised considerations of principle and policy. Now, Allhoff is not in the first instance interested in policy: “ticking-time-bomb cases are not about torture policy; they are about one-off applications of torture.” (117) But it is not clear that the topic that interests us today is separable from policy. Torture carried out by agents and offices of a democratic state governed by law seems necessarily to concern policy.

21 Responses to NDPR Forum: Fritz Allhoff’s Terrorism, Ticking Time-Bombs, and Torture (Reviewed by Chris Morris)

  1. David Shoemaker says:

    [The following comment was submitted by David Luban. Luban’s book Torture, Power, and Law (Cambridge University Press, 2014) contains a critique of Allhoff’s book. The comment that follows is drawn from Torture, Power, and Law, pp. 80-84. Footnotes are mostly omitted here, because hyperlinks don’t come through in the ‘comments’ thread. For sources, see the original.]

    1. Allhoff takes great care to emphasize that he is not defending “pervasive, institutionalized torture,” but rather focusing “on exceptional cases rather than normalized ones.” (143-44) That is why he wants to study ticking bomb hypotheticals: he insists that “ticking-time-bomb cases are not about torture policy; they are about one-off applications of torture.” (117) He complains that criticism focusing on the evils of torture policy [such as mine] “misses the point of the dialectic since the realm of discourse at this stage is nonempirical; rather, it is about the hypothetical cases.” (117) To this, one might respond that it is Allhoff who misses the point—in Henry Shue’s words, that hypothetical cases of one-off torture in ticking bomb cases are “torture in dreamland.” If the plausible ticking-bomb cases inevitably presuppose policies and not one-off decisions, then dealing with the hypothetical one-off cases nonempirically is a serious methodological error.

    2. What makes Allhoff’s argument noteworthy is that he tackles the empirical arguments as well. In his view, critics who worry about a burgeoning torture bureaucracy are simply overrating the dangers. An effective torture program might need no more than “ten torture sites set up around the world and … only thirty medical personnel worldwide. Not much of an institution.” (148) Scientific research that contributes to torture “need not be originally undertaken for that reason,” and the same goes for technology. (148) As for the corruption of police and military establishments, that would be necessary only if practices of torture become business as usual, not when torture is reserved for exceptional cases. Allhoff is confident that it will be possible to confine torture to the exceptional cases.
    Allhoff’s preferred legal mechanism for confining torture to exceptional cases without routinizing it is strict accountability coupled with a necessity defense in criminal prohibitions against torture. As Allhoff notices, the U.S. Supreme Court has expressed skepticism about whether a necessity defense exists in federal criminal law (U.S. v. Oakland Cannabis Buyers Cooperative, 532 U.S. 483, 490 (2001)); but at least one legal system—that of Israel—does have a necessity defense against accusations of torture. Given Allhoff’s confidence that a permission to torture in ticking bomb cases poses no real danger of metastasizing into a full-blown practice of torture, it is worth looking closely at the case of Israel. I wish to underline that the reason for focusing on Israel is that overall it has a strong commitment to rule of law institutions, including a supreme court that does not hesitate to tackle national security cases, a robust human rights NGO community, and sophisticated public-interest litigation. If banning torture in all but exceptional ticking bomb cases fails in Israel, it seems to me good reason to suspect that it will fail elsewhere as well.

    In 1989, Israel’s Landau Commission approved the use of what it labeled “a moderate measure of physical pressure” by security services against terrorism suspects in extreme cases. (§4.7, p. 80) This included violent shaking, stress positions, painfully tightened handcuffs, and sleep deprivation. (PCATI v. State of Israel, ¶¶8-13). Ten years later, reports surfaced that the security forces were now abusing 85% of Palestinians arrested in national security cases. This is a familiar dynamic: what begins as special treatment in special cases soon overflows the boundaries and becomes the rule. That is what led to the 1999 Israeli Supreme Court decision [PCATI v. Israel] discussed in the present chapter, which outlawed all the General Security Service’s harsh interrogation practices, because they are “degrading and infringe upon an individual’s human dignity.” (¶25)

    As this chapter explains, the Court allowed only one exception: it acknowledged that in a genuine ticking-bomb case, an interrogator who used the forbidden techniques out of desperation could defend himself against criminal charges by pleading necessity. In Israel, the necessity defense is statutorily available for all crimes. (In my view the Court should have held that Israel’s ratification of the Convention Against Torture removed that defense in torture cases; but it didn’t.) But the Court wisely rejected the security service’s request for ex ante permission to use physical pressure in ticking bomb cases, because that would turn the necessity exception into a rule. If the security services wanted to use their banned techniques, they would have to do it case by case and run the risk that their actions would not be judged necessary.

    Unfortunately, even that narrow exception turned out badly. After the Court’s decision, abusive interrogators simply described their coercive interrogations as ticking bomb cases, and the security services’ inspector went along. Out of 550 complaints of torture between 2000 and 2007, only four resulted in discipline, and none were referred for criminal prosecution. Martin Scheinin, the U.N.’s Special Rapporteur on human rights in the fight against terrorism, explained that the security service drastically expanded the notion of a ticking bomb case. Scheinin also reported that the security service began to give advance approval for harsh interrogation in ticking-bomb cases. Scheinin politely noted that “this appears to render the use of special interrogation techniques a matter of policy rather than a case-by-case ex post facto defence in respect of wrongful conduct.”

    In other words, the security services evaded the Supreme Court’s decision. A 2007 survey by the Israeli human rights groups HaMoked and B’Tselem found that 29% of Palestinian detainees reported naked body searches, three-fourths reported insults and humiliations, and a startling 96% reported prolonged handcuffing in one of the forbidden stress positions, the shabach. (Pp. 59-60)
    Furthermore, there was no accountability to hold torture in check; Allhoff emphasizes the need for accountability. As lawyers representing torture complainants explained to me in 2011, the security service’s inspectors demanded that complainants show up in person at the security service’s headquarters, unaccompanied by their lawyers, to give evidence about what befell them. Unsurprisingly, released prisoners who may have been tortured were unwilling to march voluntarily back into the lion’s den; therefore the investigations died. The Public Committee Against Torture in Israel (PCATI) complained that out of more than 700 torture complaints (through 2012), none led to a criminal investigation. A blue-ribbon government commission agreed with the complaint, and in 2013 the government agreed to establish an independent investigator of torture allegations, one who is not part of the security service.

    Allhoff, I should note, is suspicious about PCATI’s factual claims “given the group’s obvious political design” and the likelihood that “a significant percentage” of the torture complaints could be frivolous. (238, n. 29) His skepticism is unwarranted: the government commission that recommended independent investigators confirmed PCATI’s accusation. (¶88, p. 414) Allhoff wrote before this was known, but even so I find it telling that he reserves his skepticism entirely for PCATI because of its advocacy mission, apparently without any corresponding suspicion that the security services might have their own political reasons for not prosecuting their own investigators.

    The lesson seems obvious. Like water seeking a crack, security services will find the loopholes in any prohibition against torture except an absolute one. They will enlarge it: torture and abuse may start small, but they metastasize. And they will do so under the guise of the ticking bomb case – the vastly improbable hypothetical that has turned into the most effective propaganda device ever devised on behalf of torture in the modern world.

    Allhoff concedes that “torture has almost assuredly been underprosecuted in Israel,” but adds that “there is no reason to think that Israel’s failure to prosecute would transfer to other law enforcement or judicial jurisdictions.” (238) I could hardly disagree more. As we shall see in Chapter Ten of Torture, Power, and Law, the United States prosecuted none of the 101 torture cases referred to an independent prosecutor, including four in which the detainee died. No officers were tried much less convicted for Abu Ghraib; and David Passaro, a contract interrogator who beat a detainee to death with a flashlight, was convicted only of assault. In the United States just as much as in Israel, nonaccountability for torture is the rule, not the exception. Allhoff’s sanguine conviction that torture can be confined to the exceptional cases, and that governments can be relied upon to hold their intelligence services accountable, seems rather like wishful thinking.

    3. Allhoff also has a response to the objection that ticking bomb cases require a vanishingly unlikely confluence of conditions: they don’t all have to be met for a case to provide robust moral intuitions.

    For example, consider the condition that one must know that the torture will be efficacious. Allhoff surveyed more than 800 of his students on their intuitions concerning ticking bomb cases, and discovered that there was no statistically significant difference in their responses between cases in which torture would certainly reveal the bomb’s location and cases in which there is only a one percent chance of success. (Allhoff constructed the hypotheticals so that the number of expected lives saved would be the same in both the high and low probability cases: a 100% chance of saving 100 lives versus a 1% chance of saving ten thousand.) By contrast, he did find a statistically significant difference if the torture victim was guilty or innocent (in one of his thought experiments, the terrorist would break only if interrogators tortured his innocent daughter). For Allhoff, the former finding shows that moral intuitions about ticking bomb cases can be robust even if not all the ideal conditions are met; the latter finding shows that subjects’ responses are subtler than straightforward cost-benefit analysis or utilitarianism. (103-110)

    Perhaps he is right, but another interpretation is possible: that the students’ reactions to these hypotheticals are grounded in the desire to punish terrorists as much as in the desire to save lives. After all, the second hypothetical demonstrates reluctance to torture the innocent to save lives, while the first shows that the very small chance that torture will save lives does not much matter if the torture victim is a guilty terrorist. We should never take at face value the intuition that our eagerness to inflict pain on a person we loathe comes from altruistic reasons rather than hate.

  2. Bob Brecher says:

    I’ll keep it brief.

    There are two central claims that are crucial to Allhoff’s case.

    First, as Morris points out, he thinks that “lesser harms are always preferable to greater harms and that, while bad, torture could nonetheless be the lesser harm in exceptional cases”. But even if one accepts some form of consequentialism, the claim requires justification. Yet nowhere does Allhoff offer anything remotely sufficient, something that would require extensive discussion of the institutionalisation of torture. The best that can be said on his behalf is that he is not alone in simply ignoring likely consequences.

    Second, he assumes that torture is an effective way of obtaining the requisite information. But Shane O’Mara has decisively shown otherwise.

    That said, and focussing on a genuine case rather than on Allhoff’s fantasy of omniscience — Gäfgen, for example — there are two further poiints to be made. An anti-consequentialist might use it to illustrate the absurdity of consequentialism no less readily than might an anti-absolutist do the opposite. More importantly, in my view at least, is that it may be argued even of such a case that the consequences of permitting or accepting the use of torture are (likely to be) worse than the alternative.

    In short, like so many other consequentialists (and despite his interesting claim that he’s not really interested in the morality of the matter) Allhoff (1) pays insufficient heed to the likely consequences of the use of interrogational torture and (2) does not properly deal with what I think may be termed “the Dershowitz question”: why not torture the apparent bomb-planter’s grandmother? It is, after all, the sort of practice that may itself be expected to be one of the consequences of using torture. And it won’t do to offer a “Walzer in reverse” argument, namely that ‘other principles of morality’ (Dershowitz) would have at that point to be brought in so as to exclude the torture of innocents. Why not? Because consequentialism is the view that it is the consequences alone that matter. And if there are sound consequentialist reasons not to torture suspects’ grandmothers then those apply no less to torturing suspects.

  3. Fritz Allhoff says:

    Hi all,

    Let me start by thanking Dave Shoemaker for hosting this forum, and Chris Morris, David Luban, and Bob Brecher for this comments. I know David’s and Bob’s work quite well and think highly of it–and their thoughtful criticisms. Bob’s *Torture and the Ticking Bomb* is worth reading, and reaches mostly exactly the opposite conclusions I do. David has made myriad contributions to this debate and others over his career; his 2014 book came out after mine, but his “Liberalism, Torture, and the Ticking Bomb” (2005) is a seminal contribution to this literature. I also wanted to recognize Chris’s excellent review in NDPR: while he disagrees with much of the book, I really respect the review. It’s fair, charitable, and well-sourced. When dealing with such a controversial thesis, I think it’s easier to focus on the conclusions than the argumentation, and I appreciate my interlocutors here taking the arguments seriously, despite their thoroughgoing disagreement with substantial facets of the project.

    The summary from the blurb is fine, and I don’t want to waste too much time describing the book; that’s tedious and there’s substantive issues already on the table. I will just briefly mention the structure, in case that triggers ideas from others, including those who haven’t read it. The book comprises three parts:

    1. Terrorism (chs. 1-3). The goal here is to situate the torture conversation within the broader context of terrorism. The first chapter attempts to develop an account of ‘terrorism’ that differs in critical ways from others prominent in the literature (Rodin, McPherson, Primoratz, etc.). I land at “the intentional use of force against noncombatants or their property to intentionally instill fear in the hopes of realizing some ideological aim.” (p. 5) The next chapter goes on to wonder whether terrorism can ever be justified, paying particular attention to the jus in bello doctrine of noncombatant immunity.

    2. Torture and Ticking Time-Bombs (chs. 4-6). These chapters are meant to be wholly philosophical. Chapter 4 looks at what torture is and why it’s bad–the book is explicit that torture comprises a harm. (And is even sympathetic to Sussman, who thinks it’s a sui generis harm, though even David Sussman does not deny that torture may be justified in emergency cases.) Chapter 5 looks at ticking time-bomb methodology, defending the use of these thought experiments in our moral discourse. Here I disagree with others, like Henry Shue or Michael Davis–or even Luban’s “intellectual fraud” account–that these thought experiments are worthless (or pernicious). Chapter 6 argues that the thought experiments go through on a wide range of moral theories, and not just my preferred utilitarianism. Rather, it seems to cast absolutism (i.e., never, ever torture) as the extreme view. (Many reviewers have been highly critical of this chapter.)

    3. Torture and the Real World. Chapter 7 looks at how torture might be practiced in the real world so as to minimize many of the worries that critics have about “institutionalization” and other variables that drag down the utilitarian calculus. This is where I generally think critics are strongest: they’re more or less granting my framework and arguing against it on its own terms. Chapter 8 considers the difference between ex ante and ex post justifications, specifically whether we’d proceed by torture warrants (ex ante, cf. Dershowitz) or necessity defense (ex post); I prefer ex post because interrogators are prima facie liable (e.g., to criminal prosecution) as opposed to prima facie exempt. Chapter 9 closes by emphasizing that torture in not a panacea, considers extensions of the view (e.g., to torturing family members), and recognizes that we should focus on eradicating terrorism; there’s nothing good about situations in which we’re trying to decide whether to torture or not.

    Again, thanks for joining, and I’ll work on substantive responses to criticisms throughout the week!

  4. Fritz Allhoff says:

    @Bob Brecher, four things:

    1. You quote me as saying “lesser harms are always preferable to greater harms and that, while bad, torture could nonetheless be the lesser harm in exceptional cases,” but think this needs further defense. I take it that the first part just *is* utilitarianism–though I think it extends to most other moral views–and the second part can just be guaranteed by stipulation. There’s nothing else to show if we’re just talking about philosophical thought experiments; you’re presumably wanting to block there being any implications for the thought experiment to the real world, but I haven’t therein made any claims yet (this is p. ix of the preface).

    2. I think this is an important theoretical point of the book. Whether TTB cases gain any purchase in the real world is ultimately an empirical question, and we have to actually go look out in the world to see what the cases look like. This isn’t just sitting around in an armchair lamenting a priori concepts like ‘humanity’ or ‘dignity’. And so if we’ve moved from the wrongness of torture being contingent upon states of the world, that’s a very different view from the one abolitionists typically espouse. As I say explicitly, “permissible in theory, never in practice” might well be a plausible view. (I doubt it is, but then we’re at burden of proof thresholds.) But that’s an important theoretical concession, and one that could, I think, founder empirically.

    3. I don’t “assume that torture is an effective way of obtaining the information.” In fact, I say the opposite (pp. 140-147). The threshold question, for me at least, is whether it sometimes is necessary to gain information. I think torture could, in principle, be justified even if it usually doesn’t work. Say torture “works” 10% of the time and, absent torture, thousands will die. You can tinker with the details, but you can still get it to come out ahead on the utilitarian calculus. To be sure, the less effective torture is, the less likely it can carry its utilitarian debts; for sure that’s true, but doesn’t change the structural argument. The neuroscience data you allude to is important–though I’m not fully sold on the analysis–but, again, just counts a thumb on the scale. Per previous, if I say torture “works” 10% of the time, that construct can include myriad reasons, including the neuroscience data; it goes into the utilitarian calculus, but is not dispositive.

    4. I also specifically discuss torturing innocents (pp. 104-111, 198-204). In principle, the utilitarian is committed to allowing this, so long as the cases are set up right. So, sure, *in principle* innocents can be tortured. I’m just not to worried about that theoretical commitment given that it has to gain traction in the real world for any innocents to *actually* be tortured, and I just don’t see the calculus reaching that conclusion, particularly given all the collateral consequences. But if tickling the innocent daughter is the only way to prevent aliens from vaporizing the entire world, then the utilitarian’s probably going to be stuck with that outcome.

  5. Fritz Allhoff says:

    @ Chris Morris, as I said above (and to you in email), I really appreciate your review. I think you–more so than others–take me at face value when I talk about restricting torture *only* to emergency situations, and being seriously worried about spillage or normalization.

    Your thoughts about policy are interesting, for example: “If you think that we should always maximize value when making a choice — a choice in ethics or in some other domain — and you think that a policy (or a norm or rule or principle) cannot be more than a summary of individual cases, then **arguably you lack the concept of a policy, norm, rule, or principle,** at least as these are understood in ordinary life and by most non-act-consequentialist theorists” (emphasis added).

    For me, it just depends how we individuate the norms. One candidate norm might be “don’t torture, except when…”. Another might be “minimize net harms”. I don’t see why the second couldn’t be a well-formed norm–aside from being pragmatically unhelpful. But even loading exceptions into the norms doesn’t necessarily compromise the norms insofar as the exceptions could be read as being *part of the norm itself*, not deogation thereof.

    I think this is something people like Waldron (“Torture and Positive Law”) are sloppy about, particularly the notion of an archetype that cannot sustain any derogation. Ironically, he talks about habeas corpus protections–besides immunity from torture–as such an archetype, but habeas corpus obviously can be suspended under the Constitution (I.9.2), and, historically, has been when “the public safety may require it.” So is the archetype “always habeas corpus” or “…except…”?

    International law similarly talks about “peremptory norms” or “jus cogens”; these are norms that never allow derogation. But whether the norm is “never torture” or “never torture, but for emergency cases” could be an open question. (Philosophically, I mean; legally nobody would think this norm bears derogation.)

    Also note that no less than Robert Nozick–an ardent defender of rights as side-constraints, regardless of social goods their violation would subserve–was equivocal on this issue. Specifically he adds agnosticism as to whether “catastrophic moral horror” (n.29) could justify infringement of rights. This sort of “exception” is exactly what we’re talking about (i.e., if interrogational torture were necessary to stop a lethal terrorist attack). And so I don’t think it’s particularly problematic to wonder whether, either: (1) the norm itself simply has the derogrations “internal” to it; or (2) even if not, that such derogations are consistent with having a well-formed norm.

  6. Bob Brecher says:

    My problem with what I think is a curiously insouciant position is this.

    Here is what you say to Chris, Fritz:

    In principle, the utilitarian is committed to allowing this [torturing innocents], so long as the cases are set up right. So, sure, *in principle* innocents can be tortured. I’m just not to worried about that theoretical commitment given that it has to gain traction in the real world for any innocents to *actually* be tortured, and I just don’t see the calculus reaching that conclusion, particularly given all the collateral consequences. But if tickling the innocent daughter is the only way to prevent aliens from vaporizing the entire world, then the utilitarian’s probably going to be stuck with that outcome.

    And I have to say that that is a very strange take on the actually existing world. Innocents are regularly tortured. What exactly stands in the way of the extension of such practices to “ticking bomb” cases? What do you think – exactly – that the ‘collateral consequences’ would be? And what on earth has ‘tickling the innocent daughter’ to do with it? Furthermore, why not discuss actual cases (e.g. one reported by Dershowitz of which he claims that it was the threat of torturing Abu Nidal’s mother that “worked” — though he blithely ignores the implications of what he writes for his own position)?

  7. Fritz Allhoff says:

    @Bob Brecher

    I think you’re running together two things I’d keep separate, namely torture in ticking time-bomb cases (i.e., hypothetical cases) and torture in the real world. The argument in Part II is simply to establish that ticking time-bomb cases are enough to show absolutism can’t be right (at least in principle), then to say (in Part III) that we can actually go looking in the real world for actual cases, seeing if we can find ones that have “high payouts” and “low costs”. Maybe we can and maybe we can’t–you and I probably disagree on that–but it’s now gone from a fundamentally armchair inquiry to an empirical one, and that changes the state of play significantly.

    Of course the book does consider actual cases that I think are close to ticking time-bomb ones (pp. 165-173), though also why I don’t think this ultimately matters (pp. 163-165). And most of chapter 7 (esp. pp. 138-162) is specifically about how to think through the “costs” of torture and how they can be lessened (cf., institutionalization, etc.).

  8. I am grateful to PEA Soup for hosting this forum – Allhoff’s book is a timely and challenging book on a topic that, unfortunately, shows no signs of diminishing relevance. Here I won’t discuss objections to Allhof’s characterization of the ticking-bomb hypothetical, or to his proposed torture program. I agree with the criticisms of David Luban and others who have commented on this forum, and I have raised similar concerns elsewhere. Instead, I want to ask a different question about the philosophical section of the book: why make the ticking-bomb argument for torture at all?

    One might argue, as I think Allhoff would, that philosophical discussion of the ticking-bomb hypothetical is valuable because the hypothetical exposes the implausibility of some forms of moral absolutism. I agree that the status of moral absolutism is a legitimate and important topic in moral philosophy. But why use the ticking-bomb hypothetical to make the point (a point which has been made many times before, often using the very same thought experiment)? The philosophical point about moral absolutes could be made using a thoughtexperiment about any atrocious act: rape, the killing of a child, even genocide. One could easily modify the standard ticking-bomb hypothetical to involve rape rather than torture, for example (and let’s not forget that rape and other forms of sexual violence are very common forms of torture, so a defense of torture includes a defense of sexual torture). Yet I am not aware of any books or articles or public debates defending a thought experiment in which rape appears to be permissible. It is worth asking why this is the case, if the use of the ticking-bomb hypothetical is wholly philosophical. Why aren’t there articles and books discussing a ticking-bomb defense of rape, and asking whether we should rethink our prohibition against rape, use trained rapists in extreme cases, or permit a necessity defense against a charge of rape? All these suggestions have been made in response to the use of the ticking-bomb defense of torture, after all.

    One response is that it is torture, not rape, that is at issue in debates about fighting terrorism. Yet, since Allhoff states that the purpose of discussing the hypothetical is “wholly philosophical,” the fact that the torture debate occurs in the context of terrorism in the real world is irrelevant. Secondly, as I noted above, rape is often used as a form of torture, so if we are debating the use of torture to “break” prisoners, then sexual violence is one of the methods we are talking about. So, if the ticking-bomb torture hypothetical is judged to be relevant to the debate about how states should respond to terrorism, then so is a ticking-bomb hypothetical using rape.
    I suggest that the main reason why there are no philosophical articles defending a ticking-bomb argument for rape is that, for many people, the idea of publicly defending and debating the moral permissibility of rape in a world in which rape is frighteningly common, and in which rape is being used as a weapon of war and as a form of torture, is abhorrent. We might think, quite reasonably, that the value of making the philosophical point about moral absolutism (a point that, as I noted above, has been made many times before) ought to be outweighed by concern for rape victims, and by the legitimate worry that the publication and defense of a ticking-bomb argument for rape will be used and manipulated by perpetrators, and even states, to justify the real-life use of rape.

    But if it seems wrong to publicly defend a ticking-bomb hypothetical using rape, then these same concerns apply to the public defense of the ticking-bomb argument for torture in a context in which torture is being used by states against thousands of individuals. To say that the ticking-bomb hypothetical is “wholly philosophical” is disingenuous. The ticking-bomb hypothetical has not only been used ad nauseam by philosophers discussing torture, but has been used by states seeking to justify the institutionalization of torture. Reference to ticking-bomb scenarios appears in the infamous US torture memos, for example, and in the Supreme Court of Israel’s 1999 judgment on the interrogation methods used by the GSS. Reference to the ticking-bomb hypothetical in these contexts plays an important role in rationalizing the use of torture, perpetrating the idea that torture is compatible with morally honorable, even noble motives, and creating the image of a reluctant, even noble, torturer. I am not claiming that Allhoff defends the use of the ticking bomb hypothetical in this manner, but we should not pretend that philosophical debates about torture exist in a vacuum. Arguments, debates, and philosophical narratives about torture have real impact on the ability of states’ to defend and justify torture, and on the many victims of torture. That impact should not be ignored.

  9. Bob Brecher says:

    Jessica’s contribution to the debate catches far more elegantly and persuasively the worries I have about Fritz’s (and others’) approach than my own: thank you!

    All I’d want to add at this stage is this. If, as Fritz argues it’s part of his case that the issue is an empirical one (though I’m still at a loss as to how exactly he reaches this conclusion) then why not take on board such empirical evidence as we have about torture’s eliciting information? Shane O’Mara, in his Why Torture Doesn’t Work — informed by his work as a neuroscientist — is conclusive.

  10. Uwe Steinhoff says:

    I am not clear what Bob means by an “effective way of obtaining the requisite information” and by Shane O’Mara having “decisively shown” that torture isn’t. Fritz admits that normally there are better ways to acquire information from a suspect, but he says that sometimes torture might be necessary. And is Bob’s claim now that torture NEVER works? If that is the claim, O’Mara hasn’t shown anything of that sort, let alone “decisively.”

  11. Fritz Allhoff says:

    @ Bob Brecher (h/t @Uwe Steinhoff)

    I agree with Uwe’s move here. The argument you need is that torture *never* works–or never *could* work–and that’s just false. I’m more than willing to grant that O’Mara’s work makes it *less likely* that torture would be justified; it’s certainly relevant for the utilitarian calculus. But it doesn’t show that torture never works. Again, see pp. 165-173 for examples of where torture certainly seems to have worked–whether such cases are rare (which they surely are) is irrelevant for the categorical conclusion you’re trying to reach.

  12. Fritz Allhoff says:

    @ David Luban

    Thanks for posting these; your comments are really good, and I think really highly of your generally as well. You’re also really fair with your quotes and characterization of the argument, which I appreciate.

    We’ve already talked a bit about the theory/practice distinction in the thread, and it’s interesting to see how we (me, Uwe) come at it differently from you (you, Bob). It’s something like a burden of proof dilemma. I think that the ticking time-bomb case goes through as a theoretical construct, and goes through easily. I then find myself convinced that absolutism-in-principle can’t be right, and the conversation gets moved from a theoretical one to an empirical one: now we just go out in the world and look at cases. Of course we might disagree about how to map those onto the utilitarian calculus; or even whether (as you’d say) that’s the right way to go at all. But what’s interesting is that you and Bob want to *start* with practice, noting a paucity of cases, then use *that fact* to argue against ticking time bomb methodology. I don’t think they have anything to do with each other. Rather, I think the mere prospect of justified torture is enough to destroy absolutism. Of course, that alone doesn’t mean there’s actually justified cases in the world, but, again, now it’s an empirical question; I can’t imagine you (or Bob) want to end up debating the x’s and o’s but rather want the debate to end way before that.

    Your analysis of the Israel situation is, I think, right on. But I just don’t see why the fact that Israel has had inadequate safeguards or prosecutions need convince us that either is impossible. It’s fair to say that it’s the “closest” regime to the one I’d envision, but I genuinely emphasize the importance of prosecution–that’s not just lip service. Granted, I’m doing more abstract philosophy and you’re doing more law/public policy, and I think that’s why I tend to more sanguine while you’re more pessimistic. On the issue of prosecution, it could just be that any allegations of torture *automatically* trigger such-and-so (e.g., prosecution, review, etc.), which would go a long way to mitigating the worry. This is one reason I prefer necessity (i.e., retaining criminal liability) to torture warrants, which I view as a pernicious blank check. In any case, I certainly understand your worries and appreciate you noting them.

  13. Fritz Allhoff says:

    @ Jessica Wolfendale

    This is really creative, and I think it’s also particularly useful as we approach fatigue on ticking-time-bomb cases. Of course the utilitarian is just going to say that *anything* (inc. rape) necessary to prevent a greater evil is justified. But I think the insight in your comment is that it invites us to step back from ticking-time-bomb cases and think about these broader issues. Part of the issue is probably empirical: it’s hard to see how a rape would stop a terror attack. Whereas, with torture, it’s less attenuated. But, sure, we can suppose that raping the terrorist’s daughter is the only way to stave off the attack.

    I actually like a point you made in one of your papers; it’s a common move now, but wasn’t when you first wrote. And the line was simply that we’re overfocused on terrorism, both in terms of the resources spend against it (not just money, but human resources, moral capital, and so on) and the threats that it actually portends (e.g., you’re more likely to die of a bee sting than a terrorist’s bomb). And the move to rape here partially feels jarring because we’re so down this torture rabbit hole. I do have some thoughts of that in the book–briefly, I think terrorism has a lot more harms than are readily acknowledged–but take your general point.

    Btw, anyone interested read Jess’s “Terrorism, Security, and Counterterrorism,” which is really a nice article.

  14. Bob Brecher says:

    Uwe is being a bit quick, as the saying goes. To claim that something is or is not an “effective way of obtaining the requisite information” is surely quite clear: an effective way in the so-called ticking bomb context is one in which accurate information is obtained very quickly. I’ll not repeat the argument I make tin Torture and the Ticking Bomb. And O’Mara does indeed decisively show why torture is very unlikely to work. Of course neither he nor I claim that “torture NEVER works”: why would anyone suppose this was the claim either of us make?

    The point is this. Given that Fritz does indeed claim that “normally there are better ways to acquire information from a suspect, but [he says] that sometimes torture might be necessary”, the onus is on him — or indeed on anyone else who wishes to defend that position — to spell out the relevant details about the range of “sometimes”; the strength of “might”; and our epistemic position in relation to the alleged necessity. But neither he nor Uwe do that.

  15. Christopher Morris says:

    I have found the notes and comments very interesting and have a few thoughts (too many).

    I am not very confident in my judgments about the likely consequences of policies and practices like those we are discussing. This is one of the reasons for my scepticism about a torture program, however small. And this lack of confidence is increased when I take up the perspective of moral consequentialism and its expanded temporal horizon. I know the problem here is a familiar one, having to do with choice under uncertainty, but I really don’t know what to think about the likely effects of policies over the next thousand years (leaving aside special cases like climate change). Many moral consequentialists think that their favored theory offers better guidance than others, especially those that rely on norm and principles. But given the uncertainty of the future, especially the distant one that consequentialists must consider, I am not so sure.

    In some ways I think the debate about moral absolutism is a distraction. Sometimes, of course, people say the something is “absolutely wrong” and the adverb is merely an emphasis term. Philosophers usually do mean to say that if an act is absolutely wrong it may never be done no matter the consequences. (We often teach our first-year students that ‘never’ does not mean virtually always, at least in our classes.) Some moralists think that some acts are absolutely or indefeasibly wrong, for instance, the intentional killing of the innocent (i.e., non-threatening). But in the case of torture, I think the more interesting position is that torture might be virtually always wrong, at least in our times. That is the position I have come to accept. I concede to Fritz Allhoff that it might in some circumstances be permissible (or not impermissible), but I think it is wrong in our times and probably most others.

    An important part of my disagreement turns on norms, rules, principles, and other deontic creatures. I think we have duties not to torture, and that while these are defeasible, they will suffice to rule torture in the circumstances we find ourselves today. I share Fritz’s concerns about contemporary political terrorism, and worry a lot as well about nuclear threats to our world. I say this because a lot of people in the circles many of us tend to travel in say that the threat of terrorism is exaggerated. So I share many of Fritz’s concerns. But I conclude that we should not have a torture program. Torture is virtually always wrong in our world.

    Fritz asks about the individuation of norms (or principles). It is hard to figure out how to formulate a norm or principle, or for that matters any of the statement of the deontic relations that are important here. Should we build the exception(s) into the rule? This is a topic in law as well as in ethics. In most of law and in common morality it is hard to see how we could anticipate all of the exceptions (except in abstract terms, which raise the same issues at the next level). And parents of course still teach their children that it is wrong to lie or to break their promises, even if they are well aware that there are exceptions. So when I say that our duty not to torture rules it out, I say that I don’t think it is defeated or overridden by any consideration today. My view is very much influenced by recent practice in the Bush years. Our torture practice does not appear to have been very valuable — there seem to have been virtually no ticking bomb situations — and the practice got out of hand quite quickly and easily.

    I stressed in my review that I thought that act-consequentialist reasoning of the kind ably developed in Fritz’s book has a hard time accommodating the way norms and principles function in our deliberations. When discussing the individuation of norms above, he says that “One candidate norm might be […] “minimize net harms”. I don’t see why the second couldn’t be a well-formed norm–aside from being pragmatically unhelpful.” The norms and principles I am thinking of don’t ask us to maximize or minimize a value. But suppose we think we do accept a norm requiring us to minimize net harms. We presumably also think we should maximize net benefits. What to do when these two norms offer different guidance? We might combine them into one principle, much like Bentham’s greatest happiness for the greatest number — two values in one principle. This works if the two values are commensurable and we are able to assign weights to them. But notice that the norm above vanishes — Fritz mentions that it is “pragmatically unhelpful”.

    The norms, principles, and other deontic notions I am thinking of are different and are much like our everyday ones: don’t kill, keep your commitments, respect others. Most of these are directed duties of justice, the virtue regarding what we owe to others. The way these notions all work in our everyday reasoning in morals and law is to settle what is to be done, as I said in my review. Torture is wrong — defeasibly so if we can think of circumstances where it would not be impermissible. So we should not torture or set up a torture practice in our world. That settles it; we should remove these options from our choice set.

    The controversy about this understanding of these deontic notions concerns the possibility that it might be beneficial to violate or disregard the norm or duty in a particular setting. And many are driven to act-consequentialism by the thought that one might be required to do something that might be beneficial. But this is what our norms and duties do ask; if you are required to do something, then you should do it even if there are more beneficial things for you to do. I formulate this worry broadly as I think the same concern comes up in decision or rational choice theory; it’s a quite general problem with norms or principles or similar notions, not something limited to ethics or law. There are many stories as to why we want to have norms that do this and why we should follow them. Some norms make us the fact that we may be better off, individually or collectively, if we follow them even when we thereby forego more beneficial options.

    These are big topics. But I think that the errors (????) Fritz makes are connected to them.

  16. Christopher Morris says:

    An addendum. The wrongness of torture can sometimes be hard to see when the potential subject is a villain. Some think that people who commit serious crimes deserve punishment. Some also believe that those who commit very serious crimes also forfeit some of their rights. The latter is important as the rights forfeited no longer block torture or other kinds of ill treatment. As I said in the review, I think that one does not wrong someone like Saddam Hussein or Eichmann by hanging him (to wrong someone is a “directed” notion). Indeed, one may not wrong some mass murderers by boiling them in oil. So some may be tempted to endorse torture when their attention is focused on (genuinely) evil terrorists.

    But even if someone has forfeited most of his or her rights, some rights may be retained. And even if someone forfeits all of their rights, other virtues such as benevolence or charity remain. And, more to the point of the question of the practice and institutions of torture, a host of other considerations are still in play: the effects of the practice on the torturers and on the community, the encouragement given to the practice around the world, the corruption of institutions.

  17. Uwe Steinhoff says:

    To Bob: Actually, I spell all of these things out in my book, just have a look at the index. But I have it much easier than Fritz, of course, since I am not a consequentialist. On my deontological self-defense argument for torture, the necessity requirement is very lenient (and I explain how lenient) and does not imply a success condition (so self-defense, including torture, can even be justified in cases where it will finally not work); and while the defender has to know that the lenient necessity requirement is fulfilled, knowledge does not demand certainty. Now, if you want to show that torture can never be justified (in the real word) by my account, you would either have to show that my account of self-defense is wrong, or that the conditions that on my account justify self-defense can never obtain (in the real world). You have not shown that, nor has anyone else.

  18. Bob Brecher says:

    To Uwe

    Yes, of course: but what you do in your book and the argument you make here are not one and the same.

    As for your argument in the book, I’m afraid I remain unconvinced that you in fact address the issue, let alone offer a conclusive argument, since your characterisation of torture is so broad as to build your conclusion into the argument’s premise. As Michael Neu puts it, the argument amounts to is something like “Beating someone up, or even just threatening to beat them up, is sometimes justified.” And with that I have no quarrel. But to base an argument about the use of actual torture in the real world on that is — at the very least- disingenuous.

    I think, by the way, that you, and also Fritz, will find the chapter on torture in Michael’s Neu’s book (Just Liberal Violence, out in October from Rowman and Littlefield International) extremely interesting.

  19. Fritz Allhoff says:

    @everyone

    Apologies for missing these past two days; I’ve been traveling. As we hit the end of our second week and wind up, though, I did want to drop a quick note thanking everyone for their thoughtful comments. A lot of these have been really good, but I especially wanted to thank Bob for his persistence. And, again, Chris for the original review and Dave for generously housing us.

    I wish you all the best of luck with your projects and look forward to seeing you in print and at conferences!

  20. Bob Brecher says:

    Thanks for your kind words, Fritz.

    And yes, hope our paths cross.

  21. Bob Brecher says:

    PS Thanks, too, to David for the invitation and to colleagues for all their thoughts.