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.
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About the Author
Fritz Allhoff is associate professor of philosophy at Western Michigan University and a senior research fellow at the Center for Applied Philosophy and Public Ethics at the Australian National University. He is coauthor of What Is Nanotechnology and Why Does It Matter? and the editor or coeditor of numerous volumes, including Wine & Philosophy, Physicians at War, and The Philosophy of Science.
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TERRORISM, TICKING TIME-BOMBS, AND TORTUREPhilosophical Analysis
By FRITZ ALLHOFF
The University of Chicago PressCopyright © 2012 The University of Chicago
All right reserved.
Chapter OneWhat Is Terrorism?
The debate over torture is deeply embedded in the context of terrorism. Ticking-time-bomb cases, for example, make this link explicit by asking us to contemplate the torture of a detained terrorist in the hope of saving innocent lives. And interrogational torture was, at least in most enlightened societies, widely decried before 9/11; it is these terrorist attacks that have rejuvenated discussions about torture, particularly as pertains to alleviating future attacks. To my mind, this connection is somewhat overextended insofar as there are other contexts wherein we might legitimately wonder about the moral permissibility of torture. Kidnapping cases, for example, are usually going to be nonterroristic and might better approximate some of the structural features of ticking-time-bomb cases than the terroristic contexts in which those cases are frequently deployed; I will return to this issue in §5.1. Regardless, however attenuated some of the epistemic links between torture and saving lives might be in many actual terrorist cases, the potential damages in those cases are unquestionably substantial and probably more substantial than any other context in which we consider torture.
Given the focus—both public and academic—of the relationship between torture and terrorism, terrorism bears privileged discussion. Again, this discussion does not preclude other contexts for torture but recognizes only its most visible. In this chapter, I will develop an account of terrorism that elucidates its conceptual underpinnings and, in the next, will consider why terrorism is wrong and whether it can ever be justified. The third chapter of the first part of the book offers a more general account of exceptionalism wherein the contemporary advent of terrorism is considered as well as how such terrorism bears on more traditional norms inveighing against various practices.
1.1 HISTORICAL AND CONCEPTUAL FOUNDATIONS
Terrorism derives from the Latin verb terrere (to frighten) and through the French terrorisme. It was originally used to characterize the tactics of the Jacobins during the French Revolution, especially their so-called Reign of Terror (La Terreur), which began fifteen months after the onset of the Revolution and lasted from September 5, 1793, through July 28, 1794. During this time, the Jacobins exerted their influence under the ill-named Committee of Public Safety; this committee, under the charge of Maximilien de Robespierre, was meant to suppress counterrevolutionary activity and to recruit soldiers for the French military. The suppression of this perceived counterrevolutionary activity led to the deaths of an estimated twenty to forty thousand people, many thousands of whom died under the guillotine. Once deposed, Robespierre himself was executed on the aforementioned July date.
The primary aim of the Reign of Terror was to eliminate opposition to the revolutionary government, but this aim was accomplished precisely by terrorizing the population (including would-be antirevolutionaries). The message was clear: oppose the Revolution, and be decapitated under the guillotine. Furthermore, the standards for conviction were extremely low, so low that mere suspicion of antirevolutionary sentiment would suffice for execution. Because these standards were low, almost anyone could have been executed, whether they were antirevolutionaries or not. And therein lies a central feature of terrorism: it fails to discriminate—whether adequately or at all—between those who are legitimate targets and those who are not. This is to say, not that anyone could have been justly executed by the Jacobins, but only that, if anyone could have been, it would have been the antirevolutionaries. As the Reign of Terror was practiced, however, everyone lived in fear, not just the antirevolutionaries. This historical example gives us two features that are, therefore, important for our characterization of terrorism: nondiscrimination and the use of violence to promote fear. More will be said about both of these as I proceed, particularly in the context of just war theory, but they bear early mention. It is also important why terrorism is practiced, and, in this case, the aim was political or, more broadly speaking, ideological: the suppression of antirevolutionaries.
Contemporary accounts of terrorism take a wide range of approaches and emphases. C. A. J. Coady, for example, identifies the following six elements of terrorism, all of which play different roles in different accounts: the effect of extreme fear, either as intended or as achieved; an attack on the state from within; the strategic purposes for which political violence is used; the supposedly random or indiscriminate nature of terrorist violence; the nature of the targets of political violence; and secrecy in the use of political violence. On another approach, David Rodin derives a fourfold classificatory scheme for accounts of terrorism: tactical and operational; teleological; agent focused; and object focused. Tactical and operational accounts focus on the type of violence used or the way in which it is deployed; teleological accounts focus on why the violence is deployed. Agent-focused accounts focus on who deploys the violence, and object-focused accounts focus on those against whom the violence is deployed.
There is no doubt that approaches to understanding terrorism vary widely, though a broad survey of these accounts is not important for present purposes. Rather, let me just offer the conception of terrorism that I will use and then go on to explore and defend some of its elements. For our purposes, let us understand terrorism as the intentional use of force against noncombatants or their property to intentionally instill fear in the hopes of realizing some ideological aim. This definition bears similarities and differences to others. For example, Coady defines terrorism as "a political act, ordinarily committed by an organized group, which involves the intentional killing or other severe harming of noncombatants or the threat of the same or intentional severe damage to the property of noncombatants or the threat of the same." Or consider Igor Primoratz, who defines terrorism as "the deliberate use of violence, or threat of its use, against innocent people, with the aim of intimidating some other people into a course of action they would not otherwise take." Another definition is Lionel McPherson's: "the deliberate use of force against ordinary noncombatants, which can be expected to cause wider fear among them, for political ends." Rodin denies the intentional/deliberate requirement on force, characterizing terrorism as "the deliberate, negligent, or reckless use of force against noncombatants, by state or nonstate actors for ideological ends and in the absence of a substantively just legal process."
I offer this range of definitions, not to be comprehensive, but rather to identify some of the features that are in all accounts of terrorism as well as to indicate those features on which people disagree. In the first category, note that the related concepts of force, violence, killing, and harming occur in every definition. Note also that innocent and noncombatant are similarly in common. While there might be principled reasons for preferring one of these locutions in each of the two shared categories—some of which will be explored below—there is, nevertheless, agreement that something of this sort belongs. Among the differences, note that Coady and Primoratz allow for the threat of terrorism to be terroristic, whereas McPherson, Rodin, and I do not. Coady and I allow that property can be the target of terrorism, whereas Primoratz, McPherson, and Rodin do not include any mention of property in their definitions. Let us now consider some of these features in more detail.
1.2 THE INTENTIONAL USE OF FORCE
Note that some of these conceptions use force while others use violence; Coady's invocation of "the intentional killing or other severe harming" seems pretty clearly to concord with the invocation of violence. I take it that there can be nonviolent force, and it seems to me that such force can still be used in terrorism. The Oxford English Dictionary defines violence as "the exercise of physical force so as to inflict injury on, or cause damage to, persons or property." So imagine that a group of terrorists went around kidnapping people and locking them in rooms for some nonthreatening period of time only thereafter to release them (e.g., for some shortish number of days with food and drink provided); the terrorists do this to spread fear and to realize some ideological aim. While there is not, per the aforementioned definition, any violence perpetuated against these detainees, the act nevertheless seems terroristic. Force, however, is clearly used, particularly whatever force would be necessary to effect the detention. Examples like this make me think that force is more appropriate than violence and that Coady's killing and severe [physical] harm are overstated. This is not to say that terrorism does not often (or even usually) involve violence, just that it need not as a matter of conceptual necessity.
Second, Coady and Primoratz allow for threats of violence to be terroristic, while I reject this; the unqualified notion of a threat has to be too weak. Imagine, for example, that some terrorist threatened to destroy a populated building. At least something else would have to attain in order for this to be anything close to terrorism. Presumably, the threat would have to be credible; otherwise there would be no reason for anyone to be fearful. Even if the threat were attenuated, it seems to me that it could still be a threat, though nevertheless insufficient to substantiate a claim to terrorism. In other words, it does not lose its status of being a threat if the outcome it threatens is unlikely to occur; it just makes the threat less credible. So maybe Coady and Primoratz just mean something like that—namely, that the threat has to be a credible one and one of the sort that could actually generate fear in some population—even if they do not say so explicitly.
Regardless, there has to be a difference between threatening violence and actually perpetuating that violence. If a terrorist threatens violence, then he has not actually committed terrorism but rather threatened to do something that would be tantamount to terrorism. It is true that the threat of violence could create fear, but so could many other things, like earthquakes. To put it another way, the mere creation of fear is insufficient to ground terrorism. Once we recognize that, why say that the (credible) threat to commit violence is to commit terrorism rather than say that such a threat threatens terrorism? If the threat of violence is terroristic, then it would be conceptually impossible to threaten terrorism (e.g., through the threat of violence) since the word threat would, therefore, be redundant. But it does not seem conceptually impossible to threaten terrorism; therefore, the threat of violence is not terroristic.
Putting these two pieces together, let me comment on an account of nonviolent terrorism developed by Carl Wellman. In particular, Wellman argues that terrorism is "the use or attempted use of terror as a means to coercion ... violence is not essential to terrorism and, in fact, most acts of terrorism are non-violent." The examples of allegedly nonviolent terrorism that Wellman gives are judges who sentence criminals to deter future crime, blackmail, and threatening students with failure for submissions past the due date. The sentencing of criminals through incarceration, for example, would satisfy my requirement for force since the state would use force to restrict the liberties of the convicted; execution would obviously count as well. Therefore, it is possible for my account of terrorism to incorporate these cases, but I suspect that they will usually fail the fear requirement detailed in §1.4 below. Blackmail constitutes a threat, as does the threat against students. Depending on the details of the blackmail cases, it is plausible to think that these threats do not involve the use of force, but, per the above arguments, threats are insufficient to ground terrorism. Therefore, Wellman's three counterexamples are disarmed, and we still have no reason to think that terrorism could be effected without force. One of his points might have been that it can be effected without violence, though, of course, I agree and already argued for this above.
Finally, I take it that the use of force must be intentional. As I will discuss further below, terrorism is teleological: the terrorist deploys force in order to bring about fear. Without the requirement of intentionality, the terrorist would not have the requisite end, at least as pertains to the putatively terroristic act under consideration. The terrorist might, for example, intend to bring about fear as a general endeavor while unintentionally bringing about fear in some particular case: consider one who accidentally knocks off a windowsill a bomb that thereafter detonates in a crowded street. This accident does not seem terroristic even if the terrorist would have otherwise (even imminently) used it in an act of terrorism. Or imagine that the terrorist does not knock over the bomb at all; rather, a cleaning person does, failing to notice it. The cleaning person cannot have committed terrorism even though the effects could be exactly the same as if the terrorist (intentionally) did the exact same thing.
Or at least so go my intuitions. Rodin has argued explicitly against this position, allowing that the use of force in terrorism can be intentional, reckless, or negligent. His position stems from, among other reasons, a dissatisfaction with the moral status of intentional action. Rodin takes particular issue with the doctrine of double effect, which, on Frances Kamm's formulation, holds:
One may never intentionally bring about an evil, either as an end in itself, or as a means to some greater good. Nonetheless, one may use neutral or good means to achieve a greater good which one foresees will have evil consequences provided that (i) the evil consequences are not disproportionate to the intended good, (ii) the action is necessary in the sense that there is no less costly way of achieving the good.
This principle dates to Saint Thomas Aquinas and has been often discussed in contemporary literature.
Rodin is skeptical about why intention, used in this sense, is so relevant to the morality of actions. Following Judith Jarvis Thomson's example, consider a bombing pilot who asks about the permissibility of a bombing raid that will destroy a military installation and cause civilian casualties; whether this raid is permissible or not hardly depends on whether the pilot intends to cause the civilian casualties or whether those casualties are unforeseen or merely intended. Rodin extends skepticism about this principle by considering recklessness or negligence, neither of which squares well with the doctrine of double effect. To use his example, consider a motorist who drives across a crowded playground to deliver a sick person to a hospital; the deaths of those on the playground would be foreseeable but unintended, and the case can be developed so that the requirement of proportionality was also satisfied. Nevertheless, we might think that the motorist has behaved impermissibly because "persons have rights against being harmed or used for the benefit of others, rights which can only be alienated in very specific ways, usually having to do with actions and decisions they have freely and responsibly taken." Rodin therefore proposes that we think about the standard of care that is owed in the use of force and not grant a moral pass to operations that (merely) fail to satisfy the doctrine of double effect.
But reconceiving terrorism to require, not intention, but only violations of the relevant standard of care would be a major revision of the notion of noncombatant immunity that just war theory usually prescribes; it would give noncombatants almost absolute immunity from any use of force that could be expected to harm them and, therefore, rule out otherwise just instances of collateral damage. I disagree with Rodin's skepticism about violating someone's rights for the benefit of others' (pace §6.2 below), though I nevertheless maintain that recklessness and negligence can be morally blameworthy. But the way to go here is not to jettison the notion of intentionality from our definitions, at least insofar as there are strong intuitions toward retaining it, as, in the case of terrorism, I think there are. Rather, we can acknowledge that, just because something fails to be terroristic, it hardly follows that it is morally permissible. In other words, we need not expand our conception of terrorism merely so that we can hold those morally accountable who violate whatever standards of care we think appropriate. Instead, we can still issue moral indictments against those, just not under the banner of terrorism.
Excerpted from TERRORISM, TICKING TIME-BOMBS, AND TORTURE by FRITZ ALLHOFF Copyright © 2012 by The University of Chicago. Excerpted by permission of The University of Chicago Press. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Table of Contents
1 WHAT IS TERRORISM?....................1
2 THE MORAL STATUS OF TERRORISM....................19
3 THE WAR ON TERROR AND THE ETHICS OF EXCEPTIONALISM....................35
4 CONCEPTUAL AND MORAL FOUNDATIONS OF TORTURE....................57
5 TICKING-TIME-BOMB METHODOLOGY....................87
6 SHOULD WE TORTURE IN TICKING-TIME-BOMB CASES?....................113
7 EMPIRICAL OBJECTIONS TO TORTURE....................139
8 EX ANTE AND EX POST JUSTIFICATIONS....................175
9 THE LIMITS OF TORTURE....................195