Justified without Justice in the Realities of Warfare

STUDENT VOICES | A Reflection on The 2019 National Conference on Ethics in America at West Point
By Marla Hasin

Imagine being stuck in a coffin-like box, with just enough room to feel the rise of your chest as you inhale. You attempt to look at your chest, but you are halted by the thump of your head hitting the wood of the box. You are alert enough to feel the soreness of your arm, but unable to stretch your arm out to relieve the soreness. You try your best, and your arm moves a quarter of an inch, before banging against the solid wood of the box. You hear someone open the box, and for a split second, you feel hope. Your hope is immediately shattered when you see hundreds of bugs released onto your naked body. On every crevice of your skin, you feel the tingling of thousands of little legs crawling. The bugs are mocking you. They are free to move around your skin, free to bite, free to stretch out their legs. One cockroach pinches you, and your instinct to flick it off is overridden by this stupid box. You attempt to open your eyes, to wake up, only to realize you are already awake.

This terrifying thought experiment is one most of us can only imagine. For Abu Zubaydah, an individual who was tortured while in custody of the CIA, this was reality. Zubaydah was tortured under the guise of “enhanced interrogation” after being captured for his suspected involvement in Al Qaeda following the September 11, 2001 terror attacks. At the National Conference on Ethics in America, held at West Point in October 2019,  John Kiriakou, a former CIA officer, discussed the inhumane reality of this torture program. For Kiriakou, the morality of this question was clear. He felt such practices were abhorrent and a complete violation of individual dignity. Therefore, he spoke out about the torture, leading to his imprisonment under the Espionage Act. Despite the consequences he faced for speaking out, Kiriakou stands by his decision because he believes he exposed a moral wrong. For others, the wrongness of this act isn’t as clear. In this reflection, I explore the arguments on both sides of this moral dilemma. Ultimately, I argue that torture can never be just, but it can be justified. I understand justice to involve  giving people their due, and as always treating them with human dignity. Therefore, torturing someone would never be consistent with this, because torturing them uses them as a means to the end of intelligence, not as a human being who still retains human dignity, despite the evil actions they have participated in. This distinction between being justified and being just is crucial for recognizing the graveness and the nuances of this debate.

The argument against torture stems from an appeal to human dignity. In short, it is the idea that no action of evil completely strips a person of their dignity. Consequently, a suspected Al Qaeda member still has a level of dignity, which would be violated if they were to be tortured. This idea asserts that it is categorically wrong to torture an individual, regardless of what they did, or what the potential outcome of the torture is. This was the position advanced by Kiriakou. The other argument raised against torture was not an objection to the torture itself, but to the effectiveness of the torture. This argument, grounded in a consequentialist perspective, is a weaker argument against the practice because if the only objection to torture is its ineffectiveness, then torture would theoretically be protected if it were proven to be effective irrespective of consideration of the personhood of the detainee or the moral consequences for those who are ordered to conduct the tortured.

The participants at the National Conference for Ethics in America did not all fully subscribe to the consequentialist view. Some in favor of the practice of torture suggested that people lose all human dignity when they commit crimes as grave as involvement in the 9/11 attacks. Therefore, it is acceptable to treat them inhumanely. Closely related to this argument is the idea that torture is a form of punishment that serves as a type of justice for immoral acts committed by prisoners. This form of retributive justice may seem cruel or harsh, but it is also a natural part of human nature to wish harm on those who have harmed us. Although most of the audience ultimately tried to avoid a vengeful account of morality, the majority of my peers at the conference admitted to feeling sympathetic to the desire for revenge in this situation. Another issue raised in favor of torture was the claim that torture is effective when used correctly, and its ineffectiveness stems from an incorrect use of torture.

To help consider this case, Ross’s ethical framework is helpful. In “The Right and the Good” Ross claims that we have certain prima facie duties (Skelton).These duties provide good rules of thumb to help us make difficult moral decisions, but they often conflict with each other. Therefore, the different duties must be weighed and balanced against one another. Ross is committed to an intuitionist view, which means he thinks these principles exist metaphysically in the world, and we are able to discover them using something like a moral compass (Stratton-Lake, Philip). We do not need to accept this metaphysical aspect of the view, however, to see the usefulness of Ross’s view in this case. Ross identifies non- maleficence and the promotion of the maximum aggregate good, as two distinct duties. Clearly, the idea of torturing someone goes against our responsibility to non-maleficence because we are directly harming the individual. But, we have to weigh this with our duty to maximize the aggregate good because in select circumstances, torture may lead to information that will save many innocent people, and maximize good overall. Consequently, this view shows how in certain cases torture may a justifiable practice.

What is integral for justifying torture, without becoming a society that justifies abuse and harm as ethical, is to ensure that proper justification is always met, and each instance is considered holistically. In other words, the cause for torture must be grave, and torture must be an option that serves a vital purpose. For example, the CIA would be justified in torturing an individual who has knowledge of an upcoming attack if the classified information can save 1000 people who would otherwise have been victims. This is justified because torture in this case would allow for the preservation of life. It is worth noting, however, that there must not be any other alternative choices, that would also result in successfully gaining information. For instance, if the individual in custody begins to speak through an interview, or if the information can be accessed from a different party, then torture is not justifiable. Furthermore, the CIA would never be justified if an individual were being tortured as punishment for a crime after the fact because there is no clear reason for or advantage of the torture other than punishment and infliction of anger.

It may seem contradictory to claim that something can be both unjust and ethical, but this understanding of ethics is actually representative of the way people experience ethics on an individual level. This ethical reality is often shown with the trolley problem, where a person has to decide whether to hit four innocent people with a trolley car, or change the course and hit one innocent person. It seems intuitive to prefer the killing of one, because although tragic, this allows for the majority of people to be saved. Here, people are intuitively recognizing that when faced with certain moral dilemmas, imposing harm is justified.

Marla Hasin ’20, is a senior at Fordham University majoring in Philosophy, as well as an accelerated student in the Master of Arts of Ethics and Society program.

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