When is torture justified?

Three views on when torture is morally justified

1. Whenever an act of torture will maximize total happiness (Act Utilitarians)

2. In ticking bomb scenarios*, provided many conditions met (Dershowitz)

3. Never in real world (Luban)

*Bomb is ticking, explosion Is imminent, millions will die, bomber is in custody, knows where it is

Utilitarianism (Act)—an act is obligatory so long as it produces greatest happiness for the greatest number (GHGN), i.e. maximizes total happiness; otherwise the act is wrong.

A. Only consequences matterB. Only happiness & misery matterC. The total matters, with each individual given

equal consideration

Three views on when torture is morally justified

1. Whenever an act of torture will maximize total happiness (Act Utilitarians)

2. In ticking bomb scenarios*, provided many conditions satisfied (Dershowitz)

3. Never in real world (Luban)

*Bomb is ticking, explosion Is imminent, millions will die, bomber is in custody, knows where it is

Dershowitz’s objection to view #1

Slippery slope: (Act) Utilitarians mandate torture for…

Torture bomber in ticking bomb case

Torture bomber’s innocent child to make him speak

Torture one to save four

RIGHT

WRONG

Torture one child to save four

Dershowitz: we should take rule utilitarian approach

Act Utilitarianism: An act is obligatory so long as THE ACT produces GHGN; otherwise wrong.

Rule Utilitarianism: An act is obligatory so long as THE OPERATIVE RULE produces GHGN; otherwise wrong.

What’s an operative rule?

The minibar problem

What’s an operative rule?

Taking and replacing the oreos is permissible so long as doing so (tonight, here) would maximize total happiness

ACT UTILITARIANISM

What’s an operative rule?

RULE UTILITARIANISM

Taking and replacing the oreos is permissible so long as the operative rule would maximize total happiness.

Take and replace products you want if you can get away with it (everywhere, at all times)

What’s an operative rule?

May I take and replace the oreos?

Act UtilitariansMaybe so, since this one act maximizes total happiness

Rule UtilitariansDefinitely not, since the operative rule would not maximize total happiness

(Think about following it at your local 7-11, at Macy’s, etc.)

What’s an operative rule?

What is Dershowitz’s torture rule?

Should torture suspect if and only if (see p. 468)—1. Ticking bomb scenario AND2. Suspect is guilty party AND3. Suspect knows where bomb is AND4. Suspect is given immunity AND5. Suspect refuses to speak AND6. Torture is non-lethal (e.g. sterile needle under

fingernails)

Dershowitz’s torture rule, applied

RULE Does the rule allow this?

Torture suspect’s child

Should torture suspect if and only if1. Ticking bomb scenario AND2. Suspect is guilty party AND3. Suspect knows where bomb is

AND4. Suspect is given immunity AND5. Suspect refuses to speak AND6. Torture is non-lethal (e.g. sterile

needle under fingernails)

Dershowitz’s torture rule, applied

RULE Does the rule allow this?

Torture one to save four

Should torture suspect if and only if1. Ticking bomb scenario AND2. Suspect is guilty party AND3. Suspect knows where bomb is

AND4. Suspect is given immunity AND5. Suspect refuses to speak AND6. Torture is non-lethal (e.g. sterile

needle under fingernails)

Dershowitz’s torture rule, applied

RULE Does the rule allow this?

Torture in Zero Dark Thirty

Should torture suspect if and only if1. Ticking bomb scenario AND2. Suspect is guilty party AND3. Suspect knows where bomb is

AND4. Suspect is given immunity AND5. Suspect refuses to speak AND6. Torture is non-lethal (e.g. sterile

needle under fingernails)

Why such a restrictive rule?

1. You could say: more respectful of universal human rights

2. But rule utilitarians don’t think in terms of rights3. If Dershowitz is really a rule utilitarian he must

say: this is the rule that will maximize total happiness

4. Do you think a more permissive torture rule would maximize total happiness?

From individual morality to social justice

1. Individual morality—when is it right to use torture? (Dershowitz: If and only if you’re following torture rule.)

2. Social justice—what policies should US have?A. Torture at “black sites”– secrecy, denialB. Torture openly--explicit, public rules; must obtain

warrant from judge (Dershowitz’s view)C. Prohibit torture

Three views on when tortureis morally justified

1. Whenever an act of torture will maximize total happiness (Act Utilitarians)

2. In ticking bomb scenarios*, provided many conditions satisfied (Dershowitz)

3. Never in the real world (Luban)

*Bomb is ticking, explosion Is imminent, millions will die, bomber is in custody, knows where it is

Luban’s Arguments

①Ticking bomb scenario: totally unrealistic—should not think about it

② Torture as a practice: “Once we grant the permissibility of torture in a hypothetical case, we end up in the real world with a torture culture that includes trained torturers and prisons like Abu Ghraib” (p. 477)

① Ticking bomb

Why unrealistic?

What situations do we really confront in the real world?

② Torture as a practice

Professional interrogators

“The person who decides whether this prisoner presents a genuine ticking-bomb case is not the interrogator….The interrogator simply executes decisions made elsewhere.” (p. 481)

② Torture as a practice

Professional interrogators

“The liberal fiction that interrogation can be done by people who are neither cruel nor tyrannical runs aground on the fact that regardless of the interrogator’s character off the job, on the job, every fiber of his concentration is devoted to dominating the mind of the subject.” (p. 482)

② Torture as a practice

Torture in ZDT

② Torture as a practice

Torture at Abu GhraibIMAGES

“Abu Ghraib is the fully predictable image of what a torture culture looks like.” (p. 483)

Luban’s conclusion

“For all these reasons, the ticking-bomb scenario is an intellectual fraud. In its place, we must address the real questions about torture…” (p. 483)

Three views on when tortureis morally justified

Which view is right?

1. Whenever an act of torture will maximize total happiness (Act Utilitarians)

2. In ticking bomb scenarios*, provided many conditions satisfied (Dershowitz)

3. Never in the real world (Luban)

*Bomb is ticking, explosion Is imminent, millions will die, bomber is in custody, knows where it is

Three views on when tortureis morally justified

Which is now law?

1. Whenever an act of torture will maximize total happiness (Act Utilitarians)

2. In ticking bomb scenarios*, provided many conditions satisfied (Dershowitz)

3. Never in the real world (Luban) OBAMA’S EXECUTIVE ORDER

*Bomb is ticking, explosion Is imminent, millions will die, bomber is in custody, knows where it is