In your own words, define the following symbols: (a) (b) (c) (d) (e)
WWS 370 Lecture 1: Morality and Rule Absolutism 17/9/15 Important Defend your position in light of the other side’s argument Serious engagement with course materials o Bring to lecture and precept and be ready to discuss it (i.e. take notes) Go in to meet him!! Lecture What counts as a legitimate public concern Not always so clear. o War v Peace o Economic Distribution Ethics o Now thought of as a more personal concept o Rather than Morality with more social implication o What do we owe to each other As citizens What does the state owe us What do we owe to the needy/non-citizens Morality as counterweight to selfishness o BUT: the shape of our moral duties remains undefined Ex. Morality as Absolute Rules Code of inflexible prohibitions and requirements No loopholes, or if, ands, or buts Ex. 10 Commandments (not optional!) Very childlike manner of teaching morality Immanuel Kant (1724-1804) o Moral law: Categorical Imperatives Unconditional, holding in all circumstances Commanding and non optional What we must do to act morally o Moral absolutes: prohibition on lying, even altruistic lying Ex. murderer comes to house looking for victim and telling him he is not there (even if he is) Predictions about the future are always conditional o Don’t look the consequences, look to the intrinsic moral background of your own actions o You’re only responsible for your own will and actions o Treat other people as ‘ends in themselves’ not as means; deception always wrong They are independent beings and should not be manipulated They make their own decisions are responsible choosers who can do wrong and become liable to punishment without losing our respect WWS 370 Lecture 1: Morality and Rule Absolutism 17/9/15 o Beware the ‘serpent windings’ of utilitarianism Attractions: o Clear guidance (i.e. apply always and everywhere, non- situational) o Limits moral responsibility to one’s own conduct; own uprightness Prevents any bending of the rules for selfish reasons o No “wiggle room” – suspicion of exception-making and calculations BUT: aren’t there justified exceptions to rules o Ex. Lying to prevent a murder Importance of the impartial spectator (like a judge) Against o Morality is more complex than rules o Circumstances/consequences matter Why has someone done something o Moral values may conflict, and need to be weighed (Walzer’s moral dilemmas) How do we deal with this Ad hoc Theories and intuitions meant to organize our reflections on these conflicts (i.e. utility theory, Nozick, Rawls etc.) o Nagging problem: anything goes Consequentialism: anything might be permitted, given the right circumstances Even killing an innocent (i.e. to save hundreds of others) One response: No – Note everything can be justified to reasonable others (or an impartial spectator) How do we build a system with certain fail-safes to avoid false positives/negatives and to allow us to navigate these issues Ex. Jim and the Indians (Williams pg. 98) What is the justifiable choice Utilitarian: Kill the one person in order to save the greater whole and maximize utility o What about negative responsibility Isn’t he responsible whether he chooses to or not because the end results are essentially the same What if the one to be killed is a bystander o Dramatically and negatively affects his life o Was never going to be hurt in the first place o Is it justifiable or not WWS 370 Lecture 1: Morality and Rule Absolutism 17/9/15 Jim is also a bystander, so it could easily have been him in that person’s decision Ability to justify the choice to others = vitally important o Need to show that by trading away someone’s rights they are helping the group as a whole Difference between practice and reality Williams on Integrity We are people with our own lives to live Can doing the “right thing” – especially in politics – nevertheless be properly regarded as a wrong o Can you be guilty even when your actions cause good Or is Walzer confused Real life example of Serbian soldier given the choice to kill Muslims or be killed, and later turned himself in o Is the moral duress enough as a defense WWS 370 F.2015 Lecture 2: Is torture ever ethically permissible as government policy 22/9/15 Pay attention to the dates Krauthammer’s canonical case ends up being wrong Should always remember how it is used in practice vs. used theoretically (we KNOW how it has been used in the past) Can we trust the admissions/claims of those people who were involved in the practice o Isn’t this an immediate red flag If someone is trying to hide, or refuses to acknowledge something we know to be true, shouldn’t we begin to think that that there is probably something wrong Today’s Questions: What counts as torture o 2 types offered in memos: US memos Israeli court case Is it ever morally justified o If it is ever justified, if so, when and why Is it a reliable practice CIA vs. FBI beliefs/practices Krauthammer’s ticking time bomb and longer term info Ticking time bomb: no limits Longer term: torture scale Armchair justification If you don’t torture you are letting people die o If it is allowed, can it be controlled o Should those who resort to it be liable to criminal prosecution Punishment Crucial for Israeli case o Do even justified torturers (if there are some), have dirty hands, per Walzer Morally wrong, but “need” the information Historical Perspective: Decline and Resurgence 13 18 century Europe: torture = routine in extracting confessions in legal proceedings 1911 Britannica: “the whole subject is now one of only historical interest as far as Europe is concerned” Current Britathica: “By 1800 most European countries had abolished the use of torture, but in the 20 century it reappeared in unexpectedly high proportions.” o Ex. Nazi Germany and tortures in concentration camps o Ex. Regimes fighting colonial wars (i.e. France in Vietnam and Algeria) o Ex. Argentinian Junta and Pinochet st o Ex. Israel and the 1 intifada 1 Structure outlined by court case have not be implemented/succesful UN Convention Against Torture (RATIFIED BY THE US) Article 1 …torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him… or intimidating or coercing him or a third person… when such pain or suffering is inflicted by or at the instigation of… a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. … Article 2: No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture Article 4: …Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature. US Law Criminal Code outlaws “torture”: “severe physical or mental pain or suffering” The McCain Amendment (“Detainee Treatment Act”) o Prohibits “cruel, inhuman, or degrading treatment or punishment” of anyone in US custody. Passed the US Senate 909 o CIA not covered Bush said he would veto attempts to extend to CIA, based on his obligation to protect Americans from terrorism. Defining Torture: Contrast 2002 Justice Department Memos vs. Israeli Torture Case US Government Policy: (1) “Rendition” Sending captured terrorist suspects to be interrogated in other countries known to torture prisoners (incl. Egypt and Jordan) o Some of those “rendered" by the CIA say they were tortured. Rendition not always to facilitate torture it is claimed o Might provide emotional leverage (2)Torture at US “Black Sites”Abroad Khalid Sheikh Mohammed (KSM). Krauthammer’s claims (2005). Method: “waterboarding”: Are such methods torture Should they be banned Who May be tortured (according to defenders): Soldiers vs. Terrorists 2 Enemy soldiers in uniform vs. Terrorists: lawful vs. “unlawful combatants” practicing indiscriminate violence against civilians. o NOT: Enemy soldiers in uniform respect laws of war, esp. noncombatant immunity; “lawful combatants” (not always true…) o YES: Terrorists = ‘unlawful combatants’ practicing indiscriminate violence against civilians So (Krauthammer): KSM: No right to protection of laws of war and no right to withhold info. that would save innocent lives. o Actice membership establishes complicity Under what conditions does he say torture justified Do we ever know enough to be sufficiently confident Are alternative, legal methods more effective o If know terrorist, with information about planned attacks on innocent civilians, and no other way to obtain information, then torture justified Problem: do we ever have sufficient certainty about each element Are legal methods nearly always more effective o How do we KNOW 100% if a person is part of a terrorist element Ex. Krauthammer on KSM: certainty on involvement in planning of 9/11 and as top al Qaeda planner and logistical expert about future terror attacks We know now: KSM water boarded 183 times Was cooperating, and then just said anything to stop the water boarding o ALSO: What judge in this country would ever allow the submitting of evidence gained via torture b/c = essentially unstable type of information For Absolute Ban: (1) The nature of the act itself Deliberate infliction of severe pain: cruel but also purposive o Against a person who is NOT an active threat (b/c in custody) Invasively manipulative Deep violation of dignity But: not just a case of right and wrong o Also involves culpability of having no right to withhold information that could save innocents o But how do we decide if they are, in fact, withholding information (2) The Consequences: Corrupting. Proposal, Alan Dershowitz: “torture warrants”: corrupting of law Corruption of individuals practitioners society entire rule of law Dilemma of leaving torture outside, or bringing it within the law (ex. Dershowitz ‘torture warrants”) o Good in theory, but what about slippery slope argument 3 Jeremy Waldron: pragmatic (consequentialist) and principled case for absolute prohibition o Would have to institutionalize it, teach it, authorize and train people to do it Could be more corrupting to law than leaving it outside the law. o Use of torture is not a place where human rationality is trustworthy due to some of our natural, human predilections (i.e. basic human depravity cannot be channeled for the common good) Abu Ghraib, while not explicitly allowed, promoted by ‘get tough’ attitude post 9/11 o Often torture techniques are liable to be used under extremely pressured situations (emotionally etc.) i.e. young soldiers filled with patriotism to enlist 3) Uncertainty in nearly all actual cases, Distrust of human capacity to control and limit, 4 Best solution, Waldron and others: Absolute Prohibition: Torture NEVER Permitted, Waldron, p. 171617 How often are we certain of the ticking time bomb Rarely Never Judgment, control, deliberation on these matters not to be trusted: predictable that excesses will result given fear and stress (i.e. 9/11) 4) Unreliability of evidence gained: Intelligence learned under torture rarely reliable, and legal means more reliable and effective nearly always. David Rose, 2008 (recommended), Ali Soufan, Mark Fallon Mark Fallon: o “I was aware of no valuable information that came from waterboarding… Legal, rapportbuilding interrogation techniques = best way to obtain intelligence” o People will say whatever they think the torturers want to say o Often set back investigations due to faulty or just wrong intelligence But, Krauthammer Counterargument: can’t say it is never useful: Israeli case (Waxman) Rose and Obama K’s 1994 Israeli case where torture was vital o Can we really say that we wouldn’t have found out the information w/o torture We can’t really work in hypotheticals (or at least we shouldn’t deal with torture on the hypothetical plane) Attempts to Control With Law: Israeli Court’s Necessity Defense Failed: no actual indictments. Dershowitz torture warrants No nation has them. Lack of judicial expertise. What accountability mechanism is present in this case 4 Torture as Sometimes a Moral Dilemma Very rare circumstances German kidnapping case Walzer & Dirty Hands: Is he right, or is this confused pp. 1678 For Thursday: McMahan, “Torture in Principle and Practice”: read carefully. 5 Lecture 3: Torture (continued) 24/9/15 Remains controversy over whether “enhanced interrogation” = torture Cheney on Enhanced Interrogation and Legal Memos: from 3:20 to 6:17: https://www.youtube.com/watchv=AXwq3cdxQFU Role of interrogation in Bin Laden raid o Early leads (very unspecific) Advocates reinstatement of water boarding o It worked, provided vital intelligence o KSM interrogations a lot of info o ‘It’s not torture’ asked lawyers to look o = Techniques used to train own soldiers = ‘SERE’ (Survival, Evasion, Resistance, and Escape) Techniques Chinese in 1960s exposed U.S. soldiers to harsh treatment (torture) Unreliable b/c saying whatever to make it stop Account of waterboarding in reading seems to constitute torture Are the legal memos clear Were the techniques effective o Different reports are more detailed than others o Did it contribute to Bin Laden KSM: o Was contributing when FBI was using normal interrogation techniques o Stopped cooperating after CIA took over Repeated use of waterboarding – shows that it was working or failing (60 minutes video o Ali Soufan: 60 minutes, PART 2 AFTER BUSH Part 1: 0- :40 or 1:00 https://www.youtube.com/watchv=n1ivoWW1-4U o Part 2: Bush at 5:00 – 7:40 https://www.youtube.com/watchv=X0iaNMRjkno If you don’t reject torture as a moral wrong, then you have to think about the practicality McMahan: o While wrong morally, can sometimes justify it principally o Lesser evil principle Lecture 3: Torture (continued) 24/9/15 Is it worse to let people die or to torture someone and save lives o By murdering innocents, do terrorists give up their rights o Culpable once you’re culpable, you’re no longer protected by the rights given to a non-culpable individual o Distributive justice Terrorist is liable to be tortured, but doesn’t necessarily deserve to be. The people the most likely to turn to torture are the least likely to feel the moral issues Obama news conference: http://www.youtube.com/watchv=OPpXIhoZVB0 Milgram experiments: https://www.youtube.com/watchv=yr5cjyokVUs Deirdre Ely WWS 370 Reading Notes Intro Week/Week 1 Smart and Williams, Utilitarianism – For and Against, pp 93-100 Consequentialism focuses on most basic cause and effect relation (i.e. the fact that something is the consequence of one’s actions) Sometimes: vital link of someone else’s actions helping to cause a situation o BUT: consequentialism doesn’t recognize the difference in actors Gives value to ‘states of affairs’ negative responsibility o i.e. I am just as responsible for what I cause as what I allow or fail to prevent, because they are both brought about by my own actions Principle of impartiality o No difference in me producing vs. other person bringing about an outcome (i.e. abstract identity) Questions Arising o 1: Examples “arbitrarily cut off and restrict the range of alternative courses of action” o 2: “Situation as a ‘going concern’, and cut off questions about how the agent got into it”/moral questions produced Concrete Examples o 1: George desperately needs a job, but the only one available is researching WMDs, which he is against o 2: Kill 1 person to save 10, or Kill them all o Utilitarianism says obviously take the job and kill the 1 BUT: there are moral issues, cut out by utilitarianism, that need to be regarded Utilitarianism v Integrity o U doesn’t understand integrity (“cannot coherently describe the relations between a man’s projects and his actions”) o Should we forget I for the general good Or reject U Michael Walzer, “Political Action: The Problem of Dirty Hands” Do moral dilemmas (i.e. rock and a hard place) exist o = The problem of ‘dirty hands’ Refusing absolutionism w/o denying reality of moral dilemma o Something (ex. a Government action) can be right given the circumstances, but still be a moral wrong But if the moral choice is taken, one doesn’t fulfill one’s obligations as an office holder Deirdre Ely WWS 370 Reading Notes Intro Week/Week 1 Dirty Hands problem = constant problem in politics o Politicians claim to act (hustle and lie) on our behalf (unlike entrepreneurs) o Politicians = “visible architect of our restraint” for greater good Willing to put us in danger for greater good (i.e. threaten war etc.), but shouldn’t do it all the time Politicians seek a type of power over us which is oftentimes violent o In order to be successful politician, must “learn how not to be good” This is incredibly cynical Moral politician = has dirty hands but acknowledges guilt o Machiavelli: Overcome moral inhibitions but NOT commit crimes 3 examples of making a decision from dilemma o 1: All political choices made solely in terms of particular/immediate circumstances Ignores morality and long term consequences can’t ever commit a crime (although a bad mistake can occur) = Attractive but improbable o 2: Moral guidelines exist but don’t prohibit wrongful actions Just follow examples of the past for the best decision No guilt Improbable Doesn’t capture reality of daily life Bad can lead to greater good (i.e. Hamlet example) o 3: Recognize guilt’s usefulness and plan for it i.e. Rational to overvalue and sometimes break rules BUT: if a person breaks a rule for a good reason, can he still feel guilty utilitarianally w/o believing that he really is guilty SHOULD he still feel guilty I.E. killing terrorist but feeling guilty for killing a person As utilitarian belief increases, sense of usefulness decreases Guilt can be tricked away BUT: beliefs and rules are much more painful to get rid of b/c have to weigh what evil you are willing to do in order to do good 3 explanations of ‘dirty hands’ o 1: Machiavelli – Good men must do terrible things to achieve their goals Deirdre Ely WWS 370 Reading Notes Intro Week/Week 1 I.e. Evil acts can be excused by the good they bring about Must do bad things well But doesn’t address consequences of not doing the good thing o 2: Weber – Good men who do bad things are heroes, but tragic ones Entirely centered within the human conscience/inner life possible Or masochistic to continue to do things you know are wrong for the common good VS. Machievelli’s conscience lacking prince Politicians w/ dirty hands need a soul o 3: Catholic Church – hope of reconciliation always exists A price is paid for evil acts, but once paid, the slate is clean Requires close observance of the crime and creation of an adequate punishment = getting our own hands dirty in the process = Walzer’s favorite view w/o this, there are no stakes to our actions, moral or otherwise Dirty Hands vs. Civil Disobedience o CD: broken against the state and the state punishes o Dirty Hands: broken for the state and no one punishes Committing a crime that ought to be committed Dershowitz “Want to torture Get a warrant” Argues for creation of ‘torture warrant’ o ‘Ticking bomb’ terrorism cases where information is needed to prevent the death of many How, in a court of law, will this need be proven beyond all doubt Because I assume that that is the standard the Courts will use. Don’t know what the information you need is until you have it, don’t even know if that person HAS that information Is immunity from prosecution a great enough incentive Seems unrealistic Overturned by courts/rejected by society due to our common sensibilities Cruel and unusual punishment o Torture is inevitable Deirdre Ely WWS 370 Reading Notes Intro Week/Week 1 Better to have torture be visible and (supposedly) controlled, or under the radar Not for confessions, but to prevent terrorist acts o Contrast in self-incrimination vs. saving others Charles Krauthammer “The Truth about Torture” 3 types of war prisoners: o Soldiers o Terrorists o Terrorists with information Moral duty in ticking time bomb or longer-term situation (ex. KSM) to use torture to save lives = utilitarian argument Torture is degrading to society but it is also sometimes desperately necessary o To ban it outright ignores moral calculus Must be heavily regulated o Specific authority granted by president or cabinet members to specific, non-sadomasochistic agents Torture isn’t always reliable, but that doesn’t mean it isn’t useful. o REALLY Cruel and unusual standard could point to sliding scale of torture where the punishment gets ‘harsher’ as the violation becomes more heinous Sullivan Response to Krauthammer “The Truth About Torture, Revisited” (Dec 10, 2014) Idea that torture is a moral evil is lacking in current political discourse o = evidence that it’s use has morally degraded US society Issue of torturing mistaken identities o If we can’t even capture the right people for sure, how do we know that those people have the information we need o 1 innocent DIED CIA contracting out torture to people w/o training or area knowledge (‘sadists’) o Violates one of K’s key arguments (‘the trained interrogator’) Water boarding abuses and CIA operatives questioning legality and morality Threatening family members (including children) Report PROVES the nightmarish quality of U.S. torture Deirdre Ely WWS 370 Reading Notes Intro Week/Week 1 Double standard of Abu Ghraib lackeys vs. CIA higher ups Before 9/11: torture wasn’t even considerable, or a question “When you start to torture, the sheer evil of what you are doing requires that you believe ever more in its value. You can never admit error, because it would mean you have committed crimes against humanity without even the defense of acquiring any useful intelligence. You are revealed as monsters…” o What are our values if we don’t follow them “Torture’s Loopholes” Matthew Alexander (Jan 10, 2010) Lack of torture, lack of abuse, and lack of international human right abuses are not the same o Would still be allowed to abuse prisoners in Iraq “torture or even harsh but legal treatment never got us useful information” but did the opposite Army Field Manuel = standard for interrogations across all agencies/government (incl. CIA) o While better, still has loopholes: Indefinite solitary confinement Scientific studies show past 30 days = abuse/torture No explicit prohibition on stress positions, close quarters, environmental manipulation (excl. hypothermia/heat injury) 4/24 hours for sleep Abuse through ‘resetting the clock’ Was meant to stop ‘monstering’ (i.e. interrogations over 20 hours long) o In many ways = contradictory to humane treatment standard it espouses Al Qaeda using U.S. torture as recruiting tool ‘Golden Rule’ should be used o ‘what would we consider inhumane treatment if one of our own soldiers were captured by the enemy’ Next manual should prohibit all above (solitary max 2 weeks) Public Committee Against Torture v. Israel (1999) Security issues inherent to Israel’s nationality o General Security Service = main body fighting terrorism Issue: use of torture by GSS to prevent terrorist attacks o Petitioners: use of torture against them helped prevent major terrorist plots Deirdre Ely WWS 370 Reading Notes Intro Week/Week 1 Requires internal regulations/higher up approval o Shaking Can cause brain damage etc. through forceful movement of torso Major regulations governing when, where, and who Also said to observe the seriousness of the potential harm and seek other ways of preventing danger o Shabach position o Frog crouch (use stopped before court date) o Tight handcuffs o Sleep deprivation Petitioners o What is the standard for torture o Do GSS investigators have authority Necessity defense = post factum (Therefore not good enough reason to DO something) – hindsight is 20/20 o Setting up bureaucracy only regulates torture of human beings o Ticking bomb Even if the situation existed, the practices are used outside of it Government trustworthy enough to have even an exceptional power State o GSS investigators authorized to investigate all threats against the state (incl. interrogation) o ‘moderate physical pressure’ = last resort (but is it really) o If we don’t say it’s a crime, then it’s not a crime Viability of ‘necessity defense’ under ‘stringent conditions’ Protect dignity vs. uncover the truth o Values ≠ absolute o Need to fight crime in general could allow for ‘reasonable interrogation’ o Important to define ‘legal’ and ‘illegal’ investigation in order to show what violates human dignity Reasonable investigation = free of torture, inhumane/cruel/degrading treatment o = ABSOLUTE prohibitions o There are other manners of extracting info/investigating o Torture practices listed = surpass what is necessary unreasonable Deirdre Ely WWS 370 Reading Notes Intro Week/Week 1 There are non-violent/non-torture manners of achieving the same goals Idea of a ‘fair’ interrogation (page 14) ‘Degrading’ standard o Also: ‘reasonable/necessary’ standard Ex. Shabach head covering ( suffocation) w/ purpose to cut off eye contact can be achieved through blindfold Sleep deprivation = reasonable expectation of extended questioning o BUT: when SD = main goal, not side effect, then it is prohibited GSS officers with permission are authorized to conduct interrogations ‘Necessity defense’ is available to all, including in ticking bomb/immediate need situations o BUT: Necessity defense = post facto and therefore ≠ source of prior authority to carry out an action o Defense implies reacting from a set of facts – necessity defense implies lack of facts until after the fact o Just because an act ≠ crime because of the ‘necessity defense’ doesn’t negate its human rights violation Conclusion: “Neither the government nor the heads of the security services have the authority to establish directives regarding the use of physical means during the interrogation of suspects suspected of hostile terrorist activities, beyond the general rules which can be inferred from the very concept of an interrogation itself” (23) o Investigators who act against this will be prosecuted o “Just as the existence of the ‘necessity defense’ doesn’t bestow authority, the lack of authority doesn’t negate the applicability of the necessity defense or of other defenses from criminal liability” (23) AG can establish standards for court procedures under ‘necessity’ defense ‘Necessity defense’ doesn’t give authority This isn’t a James Bond movie, where the villain tells us there’s a bomb and then won’t tell us where it is. We very rarely are faced with the ticking bomb scenario. More often than not, no one knows if something will happen, and it is that unknown that makes modern life all the more frightening.