Kershnar, Stephen - For Interrogational Torture

12/21/2007

International Journal of Applied Philosophy, Vol 12 No 2 2005

This is a relatively quick and semi-technical piece that considers 'interrogational torture' of an 'attacker' from a a consequentialist and deontological position. The author first has to define the term 'interrogational torture':

Interrogational torture: the imposition of great suffering in a short amount of time that is neither willingly accepted or validly consented to, in order to gain information, usually from the person tortured. (IT)

The next definition is that of an 'attacker':

Attacker: a person who performs a gross injustice and is morally responsible for doing so.

With these two matters cleared up, author first quickly considers cases where, from a consequentialist perspective, IT is permissible. (pg 225). Author then moves to the deontological perspective, and argues that IT of an attacker doesn't violate any right of the attacker, either. Also, it is unclear or a toss-up about whether IT of an attacker is a 'free-floating' wrong (i.e. a wrong that doesn't attach to a particular person). Thus because it isn't a wrong to a person and isn't a free-floating wrong, it isn't wrong. The argument goes as follows:

P1 The only wrong to a person is one that infringes on her moral right
P2 moral rights are either natural rights or non-natural rights
C1 Torture must either wrong a natural right or a non-natural right
P3 IT doesn't infringe on a natural right
P4 IT doesn't infringe on a non-natural right
C2 IT doesn't wrong a person

Author first wants to cast moral rights as powers, in a way that provides support for P1. (pg 225-8) Author discusses three wrongs that might be done to an attacker: 1- infringing of rights, 2- exploitation, 3- contemptuous treatment. Author calls 1 object-centered, 2 subject-centered, and 3 falls either into the object-centered or the subject-centered. Author argues that the object-centered account is the best to go with since it makes the respect for others due to powers they have. Author argues that this properly captures what rights are. (226)

The next major move in the paper involves saying that an attacker has given up her rights against IT when she became an attacker. Author construes this as a case of self-defense. (pg 228-31) The objections are as follows:

Objection 1: Waiving a right against extreme suffering is invalid-- you can't waive such a right. Author's reply: the attacker is actually consenting to IT, though involuntarily, since the attacker lacks alternatives-- but this is not the fault of the torturer. (pg 232)

Objection 2: Autonomy-based rights can't be waived. Author: nonsense: we don't want maximal autonomy but narrative autonomy. What is important in autonomy is 'reflexive autonomy', which is something like [I guess]: 'all things considered, how much autonomy do I want in the upcoming events in my life?' (pg 233)

Objection 3: the reply to objection 2 is insufficient-- you shouldn't be allowed to take away someone's narrative autonomy. Author: remember, this is self-defense!

Objection 4: IT will most likely be imposed using an unreliable procedure, and is therefore unjustified. Author: though it might be 'wrong', it isn't 'morally wrong' in the sense of infringing on anyone's rights. This is a reply to Nozick. (233-4)

The next major discussion is author arguing that IT isn't a free-floating wrong. There are three free-floating wrongs: 1- exploitation, 2- indecency, 3- a failure to satisfy a consequentialist duty (pg 235)
1- Author claims it isn't clear that the attacker is being exploited by IT "It is not clear that the attacker receives an unfair share of the transactional surplus. This depends on the relative magnitude of the two parties' gains..." [what?!]
2- Author claims a reasonable person would find this self-defense not indecent.
3- Is IT optimizing good consequences? Author claims this is a tough empirical question that is most likely to be a toss-up.
So, since it isn't conclusive that IT is a free-floating wrong, and since it doesn't infringe on an attacker's rights, it isn't morally wrong.