Stephen Andrew Kovach
Publication year: 2006

The notion that a government possesses the right to torture an individual as a last resort to prevent an imminent terrorist attack assumes that governments possess the legitimate right to claim authority over an individual; that a government can accurately identify an imminent threat; that torture would indeed prevent a terrorist attack; and that is has exhausted all other possibilities.  One the one hand, a government or society adopting a Utilitarian philosophy might argue that the good of the majority is most important because it maximizes happiness and would therefore support torturing one individual in order to save the lives of many citizens.  On the other, however, a government adopting a Libertarian philosophy would assert that a government does not possess the right to torture any individual, indigenous or foreign, because doing so is inconsistent with the fundamental right to life and liberty possessed by all individuals.  Nevertheless, the ability to accurately predict an imminent terrorist attack, or to confirm that torture would indeed prevent such an attack is tenuous, thus any form of torture would likely be based on unsubstantiated evidence.  Although neither the Utilitarian nor Libertarian philosophy provides the means of confirming an imminent attack, Libertarianism supports individual rights, and is therefore by comparison more consistent with democratic values.  For that reason, this essay will argue that in order for egalitarian governments to remain consistent with democratic values they must not engage in the practice of torture under any circumstances because doing so is inconsistent with an individuals fundamental right to life and liberty.

Governments that determine the permissibility of their policies with deontological theories that consider their moral duties, rights, and responsibilities as they pertain to the consequences of a particular act might find favor with a Utilitarian, however, the U.S. government was founded on principles of limited government, and it is from that position that this paper argues against the use of torture.  Thomas Jefferson did not favor the previously mentioned consequentialist’s version of moral reasoning; instead, he applied certain concepts of limited government from seventeenth-century philosopher John Locke’s Second Treatise of Government to the Declaration of Independence.  In particular, Locke asserts that legislative power is, “limited to the public good of the society,”(Locke, 1690, pg. 71) thereby indicating that government does not possess the right to, “destroy, enslave,” (Locke, 1690, pg. 71) or deprive its citizens in a manner that is inconsistent with the public good.  Instead, all governments are limited to and bound by the laws of nature, which entitle all individuals to life, liberty, and property.[1]  Locke’s philosophies contributed to what eventually became America’s political orthodoxy vis-à-vis limited government, and established what might be considered the groundwork for the modern-day Libertarian political dogma.

Although is has been argued that two of the key concepts embedded within the Declaration of Independence, equality and liberty, are, “in conflict” with one another, (Friedman and Friedman, 1980, pg. 128) Libertarianism asserts that all individuals possess a fundamental right to life and liberty, and that both society and government are forbidden to use a person for the benefit of the majority.  Hence, if a conflict between equality and liberty does exist, it is because governments have created it because all individuals possess the right to live his or her life as they desire, providing they permit others to do the same.  Therefore, a Libertarian might argue that no one possesses the right to torture another individual for any reason because doing so violates his or her right to life and liberty.  Conversely, the principles of Utilitarianism assert that human behavior is governed by, “two sovereign masters, pain and pleasure.”  (Bentham, 1780, pg. 1)  Satisfying the, “the interest of the community,” (Bentham, 1780, pg. 2) as measured by the sum of the interests of its many members, is primary to Utilitarian philosophy because doing so achieves its key goal of maximizing happiness.  Therefore, a Utilitarian might argue that torture is an acceptable practice if it results in minimizing pain and maximizing happiness for, “individual persons” (Bentham, 1780, pg. 2) and society as a whole.

Notwithstanding the lucratively of happiness, there are numerous problems associated with the Utilitarian philosophy vis-à-vis torture.  For example, torturing an individual in order to prevent a terrorist attack assumes that torture would indeed be effective at preventing such an attack, when in fact it only guarantees that one person (the one being tortured) will suffer.  More profoundly, however, the rationale of torture indicates that society and governments possess the right to inflict pain on any individual that it deems a risk to the community, and in so doing, it minimizes the undying concepts of democratic values, which is grounded on Locke’s assertion that all individuals are entitled to life, liberty, and property.  Therefore, it can be argued that Utilitarianism, and its support of torture, is undemocratic because it is inconsistent with democratic dogma; consequently, the premise that egalitarian governments must refrain from torture in order to remain consistent with democratic values is sustained by the Libertarian philosophy, which suggests that torture violates an individuals fundamental right to life and liberty.

Unlike the above-mentioned Utilitarian philosophies, which advocate majority rights over individual rights, Libertarians support a minimal state that is characterized by no paternalism, no moral legislation, and no redistribution of wealth.[2]  In fact, contemporary Libertarian philosophy asserts that, “the minimal state is the most extensive state that can be justified,” (Nozick, 1974, pg. 149) because the idea of individual rights is so compelling.[3]  Hence, the only rights that states possess are to provide assistance in public matters such as fraud, theft, and contract enforcement.[4]  That fact, combined with the Libertarian concept of, “self-ownership,” (Nozick, 1974, pg. 172) which supports an individuals right to decide his or her own fate, sustains the argument that limited government is beneficial to individual rights, and it is precisely that fact (that limited government is good for society) that maintains the premise that torture under any circumstances is morally wrong.

Notwithstanding the previously mentioned facts, which argue that Utilitarianism is undemocratic, its philosophy vis-à-vis torture has its appeal.  Indeed, the concept of merely assessing the costs (one life) and benefits (many lives) of torturing an individual, most likely a stranger, in order to save countless lives, makes the decision easy, and in retrospect, it might be a desirable action to a survivor of a terrorist attack, considering the pain that terrorism typically inflicts on the mass populous.  However, governments facing the moral issue of torture cannot resolve it in the same manner that it might address the dangers of cell phone usage, for example, which result in twenty-three thousand deaths annually, because individuals that use cell phones while driving do so willingly; an individual that is tortured has not, in all likelihood, given his or her consent.  In fact, a Libertarian might support a law that would restrict cell-phone usage while driving because statistics indicate that they are indeed violating the rights of others, and that their actions are inconsistent with an individuals right to life and liberty because the victims merely consent to share the road with other drivers, not to forfeit their lives.  Conversely, governments are limited; therefore, an individual cannot be tortured under any circumstances because doing so exceeds governmental power, and violates individual rights, unless of course, in the highly unlikely event, an individual concedes to torture.  Therein lies a primary distinction between situations where a government can and cannot intervene with society: consent is required for a Libertarian to agree that an act is permissible, and that fact, combined with the unlikelihood that anyone would concede to torture, supports the argument that torture is inconsistent with democratic values, and is therefore morally wrong.  Simply put, neither society nor governments can value one individual’s life over another, even if it results in, “benefit, advantage, pleasure, good, or happiness” (Bentham, 1780, pg. 2) because that decision, according to Locke, belongs to God, not humans.[5]

Nevertheless, that is precisely how a Utilitarian responds to societies problems.  For example, in The Queen v. Dudley and Stephens, 14 Queen’s Bench Division 273, 9 December, 1884, a group of men murdered Richard Parker, a young boy that was, “in a much weaker condition,” (The Queen v. Dudley and Stephens, 1884, pg. 2) in order to survive on their boat, which was cast away by a storm.  Drifting one thousand miles from land for over twenty days without food or water, the men decided to kill Parker and eat his flesh as a means of preserving their own lives, and in so doing, they exercised a Utilitarian-based philosophy vis-à-vis decision making.  The defendants, Thomas Dudley and Edward Stephens, argued that, if they had not killed and eaten the boy, it is likely that they, “would probably have not survived,” (The Queen v. Dudley and Stephens, 1884, pg. 2) thereby insinuating that they possessed the right to decide Parker’s fate, and that their lives were more valuable.  The defendant’s argument is consistent with Utilitarian philosophy in the sense that the community (which is represented by the confines of the small boat), and the members of the community (the three men and the boy), took precedence over individual rights, and their decision was based on maximizing the happiness of the majority.  Notably, Parker did not concede to his own death, which might have made his murder an acceptable act according to contemporary Libertarian philosophy because he owns himself, and therefore possessed the right to determine his own demise.  Lockean philosophy might argue with contemporary Libertarianism in the sense that rights are not transferable, and therefore cannot be used to justify self-murder.  Nevertheless, the above-mentioned case exemplifies that moral philosophy is relevant wherever people exist because people utilize it, consciously or otherwise, when they need to make difficult decisions; hence, it is not reserved solely for governments defined by borders as a means of controlling the public.  That fact is important because the decision to torture an individual in order to prevent an imminent terrorist attack does not belong to any government or society that might base its decision on the aforementioned Utilitarian concepts.  Rather, the idea of torture has no valid place in any democratic society that claims to protect an individual’s right to life and liberty.

Although other philosophers, such as John Stuart Mill, attempted to humanize Utilitarianism by incorporating certain humanitarian concepts, such as human rights, and the distinction between higher and lower pleasures, in his reply to Bentham’s ideas, contemporary Utilitarian arguments in favor of the legitimate use of torture still represent the ugly side of moral reasoning.[6]  For example, Alan Dershowitz, the Felix Frankfurter Professor of Law at Harvard University, argues for a government-sponsored torture warrant, or a law that condones the use of, “nonlethal torture” (Dershowitz, 2002, pg. 147) on convicted terrorists as a means of saving many lives.  Under the conditions hypothesized by Dershowitz, a “ticking bomb” (Dershowitz, 2002, pg. 147) is known to exist in New York City, and it is assumed that torturing a particular individual that allegedly holds pertinent information about the location of that bomb would, in a timely manner, help law officials prevent the deaths of many individuals, thereby benefiting society.  Dershowitzs’ argument is based on similar Utilitarian principles used by the above-mentioned defendants in The Queen v. Dudley and Stephens.  For example, Dershowitz cites eighteenth century philosopher Jeremy Bentham’s idea that, “rescuing from torture” (Dershowitz, 2002, pg. 143) hundreds of innocent people by torturing one (or a few) is indeed morally acceptable, and should thereby be applied to modern day international terrorism.  However, Dershowitzs’ argument is flawed for two primary reasons.  First, it assumes that law officials are able to identify immediate threats sufficiently, and in a timely manner, in order to justify a torture warrant, when in fact, most alleged terrorists plots turn out to be false.  Consequently, if the U.S. government had adopted the use of torture warrants immediately after the September 11, 2001 terrorist attacks on New York and Washington, D.C., many innocent individuals would have been tortured unnecessarily.  Second, it assumes that eighteenth century philosophical concepts sufficiently support the complexities associated with modern-day terrorism, when in fact Bentham saw the homeless, not terrorists, as a major threat to society; hence, it is illogical to support modern-day laws vis-à-vis international terrorism with philosophical concepts that were partially influenced by destitute and disadvantaged citizens.  In addition, it can be argued that torture also violates a person’s right to property, because the amount of time involved in torture, including recuperation, is in fact time taken away from pursuing economic interests.  Notwithstanding the fact that Dershowitzs’ theory is morally weak, as based on the abovementioned rights to life, liberty, and property, his theories are based on antiquated philosophies that might be useful at resolving some of societies problems, but are minimally applicable to governmental policies vis-à-vis torture and international terrorism, thus rendering Dershowitzs’ theory both undemocratic and unpractical.

It is reasonable to suggest that Dershowitz, a practicing attorney, argues with the intention of creating laws that might enhance existing policies.  However, because a torture warrant is inconsistent with an individuals right to life and liberty, and therefore morally corrupt, where do the moral philosophies of Locke or Bentham, for example, fit in a world where laws are created not by philosophers, but rather by attorneys such as Dershowitz?  Locke was mostly concerned with ending tyranny in the seventeenth century, and Bentham saw the homeless as a major threat to eighteenth century society.  Both Locke and Bentham were simply unable to address contemporary issues such as international terrorism because it did not exist during their period, hence, their philosophies might be valid for determining the structure of a limited government, or the creation of a homeless shelter, but their concepts loosely pertain to modern-day laws vis-à-vis international terrorism.

The only possible resolution to the moral dilemma of torture, one that this paper argues for, is that the right to torture an individual as a last resort to prevent an imminent terrorist attack belongs to no one.  It is not for government to decide, because it is limited; it is not for philosophers to dispute, because it is not a decision that any human can rightfully claim; nor is it for attorneys to determine through the manipulation of the existing judicial system.  Simply put, contemporary democratic governments and societies should be able to develop a more morally acceptable conflict resolution tool than torture.  Torture violates an individual’s right to life, liberty, and property, and under no circumstances can democratic societies, governments, or individuals permit it to occur, because doing so is inconsistent with democratic values.

 

References

Bentham, J.. Of the Principle of Utility. In Introduction to the Principles or Morals and Legislation (pp. 1-7). Public Domain.

Dershowitz, A. M. (2002). Why Terrorism Works. In The Case for Torturing the Ticking Bomb Terrorist (pp. 142-149). Yale University Press via the Copyright Clearance Center, Inc.

Locke, J. (1690). C. Macpherson (Ed.), Second Treatise of Government. Indianapolis Cambridge: Hackett Publishing Company, Inc.

Mill, J. (2001). G. Sher (Ed.), Utilitarianism and the 1868 Speech on Capital Punishment (Second ed.) Indianapolis/Cambridge: Hackett Publishing Company, Inc.

Milton and Rose, F. (1980). Created Equal. In Free to Choose, A Personal Statement (pp. 128-149). Narcourt Brace& Company via the Copyright Clearance Center.

Nozick, R. (1974). Distributive Justice. In Anarchy, State, and Utopia (pp. 149-164). New York: Basic Books.

Queen v. Dudley and Stephens, 1-6. (The lifeboat case):  Decided 9 December 1884. Public Domain.

 

[1] Locke, J. (1690). C. Macpherson (Ed.), Second Treatise of Government. Indianapolis Cambridge: Hackett

Publishing Company, Inc. pg. 71-72

[2] see Nozick, R. (1974). Distributive Justice. In Anarchy, State, and Utopia (pp. 149-164). New York: Basic Books.

[3] Ibid.

[4] Ibid.

[5] see Locke, J. (1690). C. Macpherson (Ed.), Second Treatise of Government. Indianapolis Cambridge: Hackett Publishing Company, Inc.

 

[6] Mill, J. (2001). G. Sher (Ed.), Utilitarianism and the 1868 Speech on Capital Punishment Second ed.) Indianapolis/Cambridge: Hackett Publishing Company, Inc.