Ethics for Enemies - Terror, Torture, and War

194 Pages·2011·21.973 MB·English

by  Frances M. Kamm, F. M. Kamm

ETHICFSO R
ENEMIES
TERROTRO,R TURE,
ANDW AR
F.M.KA MM
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The USeehriiirnPeo rs a cEttihciacls
{n 2002 the Uehiro foundation on .Ethics and Education, chaired by
Mr :Eiji Uehiro, established the Uehiro Chair in Practical Ethics at the
University of Oxford. The following year the Oxford Uehiro Centre for
Practical Ethics was created within the Philosophy Faculty. Generous
support by the Uehiro Foundation enabled the establishment of an
annual lecture series, 'lbe Uehiro Lectures in Practical Ethics. These
three lectures, given each year in Oxford, capture the ethos of the Oxford
Uehiro Centre for Pn1ctic.al Elhics: to bring the best scholarship in ana­
lytic philosophy to bear on the most si ificant problems of our time.
gn
The aim is to make progress in the anal is and resolution of these issues
ys
to the highest academic standard in a manner that is accessible to the
general public. Philosophy should not only create knowledge, it should
make people's lives better. Books based upon the lectures are published
by Oxford University Press in the Uehiro Series in Practical Ethics.
Julian Savulescu
Uehiro Chair in Pnlctical Ethics
Director, Oxford Uehiro Centre for Practical Ethics, University of
Oxford
.Editor, The Uehiro Series in Practical Ethics
In memory ofmy uncle,
Samuel Kamm,
with thanks for his crucial help at crucial times
CONTE NTS
1 INTRODUCTION
3 TORTURE: DURING AND AFTER ACTION
73T ERRORISM ANDI NTENDEIVN1IG.
119 REASONS FOR STARTING WAR: GOALS, CONDITIONS,
AND PR.0.PORTION.ALITY
16B9IB UOGRAPHY
17IN3D liX
INTRODUCTION
This book is composed of revised versions of the three Uehiro Lectures
that l gave at Oxford University in November-December 2oo8. I am
very grateful to Professor Julian Savulescu, head of the Uehiro C..entre
for Practical Ethics at Oxford University, for having invited me to give
these lectures.
For the most part, the book considers how certain distinctions that
I have explored in my work on ethical theory bear on aspects of the
practicalp roblems ofte rrorism, torture, and war. 1 (I empha.,;ize "aspects,"
as I do not attempt to provide complete discussion of these problems.)
a
In general, after working on certain issues in ethical theory, I often
become aware of how these same issues arise in practical contexts. This
is how, in the past, I came to write on several topics in bioethics, such as
allocation of scarce resources and physician-assisted suicide. My interest
in terrorism, torture, and war arose in the same way. By contra.,;t, others
begin with a deep concern about the practical problems themselves.
may
However, considering the practical problems, I find, can also help
uncover new considerations and distinctions and so lead to revisions in
one's ethical theory.
My method in dealing with both ethical theory and pra<..tical
is.rues
makes heavy use of hypothetical cases. Such cases can be varied at will.
thus test whether a factor is morally significant by comparing the
One can
moral status of a with the factor and a without the factor, hold­
case case
ing all other factors in the constant While the cases may
cases sometimes
unrealistic, they are somewhat artificial, controlled experiments
seem like
in science that eventually yield results for situations.
real-life
Chapter , ," Torture: During and After Action," considers whether those
who are responsihle for creating lethal threats may be tortured during
and after their threatening acts to stop those acts or harm from them. I
consider different conceptions of torture and the different occasions
when torture might occur in order to isolate factors relevant to the moral
status of torturing a wrongdoer held captive. I have previously written on
2 lr-ITRODU(.TION
the inviolability of nonthreatening persons. This chapter considers what
may and may not be done to threatening persons and when.
Chapter 2, "Terrorism and Intending Evil," is primarily concerned
with whether intending to harm a civilian can account for the special
wrongness of terrorism, and also whether such an intention is always an
indication of the presence of terrorism. This chapter deals with a practi­
cal application of the theoretical question, whether the intention with
which an act is done bears on the act's permissibility.
Chapter 3, "Reasons for Starting War: Goals, C'.onditions, and
Proportionality;' is also, in part, concerned with whether having a proper
jntention is ne�y in order to make action pe�ible, in this case,
starting war. It goes on lo consider how the theoretical distinction between
acting in order to bring about a good efef ct and acting on condition that
one will bring it about may bear on the permissibility of causing side-efef ct
harm (sometimes called collater-.tl damage) to civilians in war. The aim is
to determine whether and how bad side effects can be proportional to the
good effects of war so that we may pursue a just cause by means of war.
A recurring theme of these chapters is whether prohibitions that have
been thought to be based on considerations that make an act wrong in
itself may rather he based on consequcntialist considerations, if they are
prohibitions at all. That is, we ask whether certain prohibitions arc justi­
fied on the grouncl that what they rule out is intrinsically wrong or
rather on the ground that the consequences of acting in certain ways,
and features of agents who would act, might rule out certain conduct.
The chapters are self-contained and each may be read on it,; own.
Each has its own conclusion and acknowledgments. However, I am
especially grateful to those who have read all three chapters and also
provided challenging philosophical discussion, including Ruth Chang,
Johann Frick, Shelly Kagan, JeffMcMahan, Derek Parfit, Julian Savulescu,
and Larry Temkin. Lynne Meyer Gay's skills were crucial to preparing
the manuscript. I am most indebted to Derek Parfitand Thomas Scanlon
for their intelligence, kindness, and support over the years.
Note
1. For the theoretical discussion, sec, for example, my Intricate Ethics: Rights, Res­
ponsibilities, and Permissible Harm (New York: Oxford University Press, WO'J) .
l
TORTURDEU:R INAGN DA FTEARC TION
Nowadays when we hear the word torture, we think of wrongful,
brutal treatment of people in custody whose use in the "war on ter­
ror" has recently been a matter of great concern. But sometimes we
seem to be tempted to apply the word torture to cases that are unlike
this. We may wonder whether doing this is correct and begin to think
about the characteristics in virtue of which we identify something as
torture. We may also wonder what specific characteristics of wrong­
ful torture make it wrong. Is it just the fact that it is torture? Or is it
possible that we need not be misidentifying behavior as torture if we
think that the behavior is moraUy permissible? This chapter is about
these issues.
In Intricate Ethics,1 I wrote concerning universal human rights:
There are at least two ways in which the claim that there are such
human rights can be understood: (1) AU that is needed in order to
come to have certain rights is that one be a human person. {2) All
that is needed in order to come to have and continue to have certain
rights is that one be a human person. While there may be some
rights that satisfy (2), most rights that are now considered human
rights do not satisfy iL They only satisfy (1). For example, the right
to free movement, the right not to be killed, and the right to free
speech may all be forfeited in virtue of one's conduct. I Ience, if
there are human rights in sense (1), this docs not mean that every
human person always has such rights just in virtue of being a
human person.
Consider some practical implications of this. Some argue against
capital punishment on the ground that it violates a human right
not to be killed. They favor incarceration instead. But in the same
sense (1) in which there is a right not to be killed, there is a right not
to be deprived of liberty. If one can forfeit a right to liberty by bad
4 TORTURE: DURING AND AFTER ACTION
acts and so can be permissibly i�carcerated as punishment, then
it is not dear why one could not forfeit the right not to be killed
(even when one is not presently a threat). Some argue that there is a
human right not to be tortured. Others argue that it would take the
need to stop a ticking bomb that threatens an enormous number
of people to justify torturing even those who set the bomb. But
suppose that a villain is about to set a bomb that will shortly kill
one child. Presumably, the villain has no right that we not kill him,
if only this would stop his setting the bomb. Furthermore, tortur·
ing someone for a short period seems less bad for him than death.
Then why does the villain also have no right not to be tortured, if
torturing him rather than killing him would also stop his setting
the bomb? And if we arc unable to kill him, but only able to torture
him in order to stop his setting the bomb, might he not also have
no righl not to be tortured?
This chapter reconsiders some issues in that short discussion by
examining aspects of two prominent discussions of torture by Henry
Shue2 and David Sussman.3 Their discussions raise conceptual issues-­
that i what torlur,e is--that might help us decide whether we could
s,
correctly apply the term to doing what stops the villain from killing the
child. Their discussions also raise normative issues-that is, whether
there is something morally distinctive about tortrne and whether tor·
ture is impermissible on deontological rather than on consequentialist
grounds. (That is, whether torture is wrong just in virtue of what we
would do, independent of whether it would have further bad effects.)
I shall critically examine Shue's and Sussman's discussions and try to
present an alternative perspective.
In this discussion, I shall focus primarily on cases in which (what might
be) torture wouJd be used on people (a) when evidence arrived at inde­
pendently of torture conclusively shows them to be wrongdoers (e .g., ter·
rorists) and (b) when their being tortured is the only way to get something
we need (c) to certainly stop the imminent succcs.� of their own murder­
ous plot.4 This excludes cases where torture is most likely to be morally
wrong because (i) it i� done to people not known to be wrongdoers in
order to find evidence that they are wrongdoers, (ii) it is done to those
whom one knows are innocent as a means of stopping someone else's
TORl"URE: DURING AND AFT lR ACTION S
murderous plots, (iii) it is done to acquire what is not necessary to stop a
threat or may have only a small chance of stopping a threat, and (iv) it is
done when there is no certain and imminent murderous threat to stop.
There has been much philosophical discussion of why it would be
wrong to deliberately kill one innocent person to stop other innocent
people from being killed bya wrongdoer. My own preferred explanation
of this is in terms of the moral status of every innocent person, which
rules out the permissibility of violating them seriously. 5 I shall as.rume
that the status of such persons would also prevent us from torturing
them to save other innocents from being murdered. The question is
whether this status is retained by a wrongdoer responsible for the immi­
nent murderous plot against those innocents.
As I have said, the topic of torture has been raised for many by the
treatment of prisoners byt he United States and some ofi ts allies follow­
ing the September u, 2001a ttack on the World Trade C'.cnter in New
York City and the war in Afghanistan. My discussion does not attempt
to deal with these actions in particular, as this would require detailed
empirical information. However, it does bear on how these actions
should be evaluated, given full knowledge of what theyin volved, and it
bears on strategies some have used to deny that these actions involved
torture. It is important to remember that even if a discussion of torture
showed that it could be morally permissible in some cases, this need not
imply that any torture that might have been carried out by the United
States or its allies was permissible.6
I. Conceptual Issues
First, let us consider the conceptual issues with only minimal altention
to moral issues theyra ise. That is, let us consider what torture is, by con­
trast to other types of behavior, with only minimal attention to whether
it ( or they) are permissible.
A. SHUE
Shue emphasi1,cs that his characterization of torture is based on torture
as it is commonly practiced (at the time he wrote). He is not claiming
to offer a conceptual analysis and he concedes that there are many types