Torture, terror, and the inversion of moral principle

New Criminal Law Review

Volumn 10, Issue 4, 2007, Pages 613-657

  Haque, Adil Ahmad ^a  

^a NONE

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EID: 40749101712     PISSN: 19334192     EISSN: 19334206     Source Type: Journal    
DOI: 10.1525/nclr.2007.10.4.613     Document Type: Article

References (123)

1. Henry Shue, Torture, 7 Phil. & Pub. Aff. 124, 125-30 (1978).
2. Eric Posner & Adrian Vermeule, Terror in the Balance 191 (2006).
3. See also John Gardner, Complicity and Causality, 1 Crim. Law & Phil. 127, 129 (2007) (arguing that "it is self-indulgent or squeamish to care more about one I s own wrongs than about those of other people").
4. Cf. Charles Krauthammer, The Truth about Torture, Wkly. Standard, Dec. 5, 2005, http://www.weeklystandard.com/Content/Public/Articles/000/000/ 006/400rhqav.asp?pg=1 (describing "no-torture absolutism" as "moral vanity").
5. John Ashcroft, Never Again (2006).
6. Michael Walzer, Just and Unjust Wars 155-57 (1977).
7. Posner & Vermeule, supra note 2, at 262.
8. Cf. Walzer, supra note 4, at 131.
9. Qur'an 4:75.
10. see, e.g., Krauthammer, supra note 2 ("Not only is it permissible to hang this miscreant [Khalid Sheikh Mohammed] by his thumbs. It is a moral duty.");
11. see also id. ("It would be a gross dereliction of duty for any government not to keep Khalid Sheikh Mohammed isolated, disoriented, alone, despairing, cold and sleepless, in some godforsaken hidden location in order to find out what he knew about plans for future mass murder.").
12. See Michael Walzer, Terrorism: A Critique of Excuses, in Arguing about War 53-56 (2004).
13. Cf. Jeremy Waldron, A Right to Do Wrong, 92 Ethics 21 (1981). Waldron argued we have the right to act contrary to the balance of moral reasons but not to violate the rights of others. The authors discussed in this article support the position that we can have a duty to do the latter but not the former.
14. See Gardner, supra note 2.
15. See Cass R. Sunstein & Adrian Vermeule, Is Capital Punishment Morally Required? Acts, Omissions, and Life-Life Tradeoffs, 58 Stan. L. Rev. 703 (2005).
16. See Frances Kamm, Failures of Just War Theory: Terror, Harm, and Justice, 114 Ethics 650 (2004);
17. Jeff McMahan, The Ethics of Killing in War, 114 Ethics 693 (2004).
18. Gardner, supra note 2, at 131.
19. Gardner is quick to add that our reasons to help others conform to the reasons that apply to them are frequently outweighed by the costs of routine intervention into the conduct of others. Id. at 132-33.
20. Id. at 129. Notice that Gardner says one must commit the single wrong, which indicates the moral compulsion of obligation, rather than that one should commit the single wrong, which would place the matter in the realm of the advisory. Similarly, one does not ordinarily speak of being at fault for something other than a wrong. Nor does one typically demand an excuse for an action that is optional rather than mandatory.
21. See Frances Kamm, Intricate Ethics 310 (2006).
22. See Gardner, supra note 2, at 137.
23. see, e.g, id. at 132 ("For the wrong she admits to is a wrong of contributing to the kidnappers' wrongs (by failing to prevent them). It is a secondary wrong. It is her wrong but it is her wrong of failing to minimise the wrongdoing of all."). But see id. at 136 ("The relationship we have to our own actions is direct: We answer for them as such. The relationship we have to the actions of others is indirect: We answer for them only inasmuch as, by our own actions, we contribute to them.").
24. Id. at 142.
25. Id. at 132.
26. For instance, a doctor who asks a passerby to break into a closed pharmacy for medical supplies needed to save a third person's life is complicit in the passerby's offense though both are justified in their actions.
27. Note that wrongs involving recklessness and negligence are partly constituted by the absence of justification. Reckless driving involves in part the wrong of imposing unjustifiable risks of harm on others. By contrast, reckless homicide involves the distinct and more serious wrong of killing; the unjustifiable imposition of a risk of death is part of what makes the killer liable for that wrong. Similarly, one can imagine a variant of criminal facilitation which involves the wrong of taking an unjustifiable risk of contributing to the wrong of another. Complicity, by contrast, involves the distinct and greater wrong committed by the principal; the unjustifiable risk of contributing to that wrong, as well as the contribution itself, at most makes the accomplice liable for that wrong. But the wrong of complicity is not among the wrongs that may be constituted by the absence of justification.
28. Id. at 132.
29. Id. at 132;
30. see also id. at 140 ("agent-neutralism throws, in principle, a wider net of complicity than agent-relativism: It allows each of us fewer justified abstentions from preventing the wrongs of others." ).
31. Notice that self-defense and defense of others share the same permissive structure. This is so even though one arguably commits no wrong by repelling an unjustified attack. It would therefore be incongruous if personal defense (the prevention of one wrong by committing no wrong) were to remain a mere prerogative while necessity (the prevention of many wrongs by committing one wrong) is elevated to the status of a requirement. For this reason the strong reading of agent neutrality may conflict with two entrenched features of criminal law rather than only one.
32. Cf. Tom Stacy, Acts, Omissions, and the Necessity of Killing Innocents, 29 Am. J. Crim. L. 481 (2002).
33. See Gardner, supra note 2, at 132-33.
34. See, e.g., Backun v. United States, 112 F.2d 635, 637 (4th Cit. 1940) (Parker, J.) ("One who sells a gun to another knowing that he is buying it to commit a murder, would hardly escape conviction as an accessory to the murder by showing that he received full price for the gun...").
35. See Gardner, supra note 2, at 137 ("Procuring or causing or inducing someone to commit a wrong; failing to prevent or permitting or enabling the commission of a wrong; these are straightforwardly causal modes of complicity.").
36. Model Penal Code §2.06(3) (Proposed Official Draft 1962).
37. Gardner, supra note 2, at 134.
38. Id. at 136-37.
39. Note also that a permissible action generally does not cut off a causal chain initiated by a wrongful action. If a philosophically inclined murderer creates a real-life Trolley Problem, he will be responsible for the one death if someone (permissibly) switches the trolley onto the less-occupied track.
40. Senator John McCain, It's About Us, 33 Hum. Rts. 20, 22 (2006).
41. Both positions generate a number of counter-intuitive implications which cannot be discussed at length. It seems that on either view states may commit wrongs for the sake of citizens who may not commit those same wrongs for their own sake. The prohibition of terrorism would seem to apply to paramilitary groups but not to the states they fight; but the prohibition ceases to apply to those same groups the moment they take control of a state. Finally, constitutional rights would not limit the states they are meant to bind even if the rights in question are meant to benefit the right holders rather than society as a whole.
42. Sunstein & Vermeule, supra note 11, at 709.
43. Id. at 720. See also id. at 722 ("The only interesting or even meaningful question government ever faces is not whether to act, but what action should be taken-what mix of criminal justice policies government ought to pursue.").
44. See Warren S. Quinn, Actions, Intentions, and Consequences: The Doctrine of Doing and Allowing, in Killing and Letting Die 355, 366-67 (Bonnie Steinbock & Alistair Norcross, eds., 2d ed. 1994) ("An agent's most direct contribution to a harmful upshot of his agency is the contribution that most directly explains the harm. And one contribution explains harm more directly than another if the explanatory value of the second is exhausted in the way it explains the first." "Harmful positive agency is that in which an agent's most direct contribution to the harm is an action, whether his own or that of some object [under his control]. Harmful negative agency is that in which the most direct contribution is an inaction, a failure to prevent the harm.").
45. Sunstein & Vermeule, supra note 11, at 722 ("It is tautologically true that a [policy] package lacking capital punishment does not include the particular 'actior' of imposing that form of punishment.");
46. id. at 723 ("Those who emphasize intention presumably do not mean to focus narrowly on the actual individual who carries out the final action on the state's behalf");
47. id. ("If we put aside the intentional actions of low-level officials, the relevant policies in either regime will be set by a complex process of democratic and regulatory interaction among voters, legislators, administrators, and judges. In this large-scale process of collective decisionmaking, the concept of intention might be coherent, but it becomes too attenuated to bear the moral weight often put upon it.").
48. Id. at 725.
49. Eric Blumenson, Killing in Good Conscience: What's Wrong with Sunstein and Vermeule's Lesser Evil Argument for Capital Punishment and Other Human Rights Violations? 10 New Crim. L. Rev. 210, 222-23 (2007).
50. See Sunstein & Vermeule, supra note 11, at 725 ("What is the moral importance of this distinction [between acts and omissions]? Individuals, let us suppose, are prima facie obligated not to harm others, but they have no obligation to assist them.").
51. See id. at 722 (asking the reader to "consider a situation in which regulators refuse to adopt motor vehicle or drug-safety regulations that would prevent significant numbers of statistical deaths. Is the refusal acceptable because it leads to deaths that are not, strictly speaking, intended?").
52. Cf. Carol Steiker, No, Capital Punishment Is Not Morally Required: Deterrence, Deontology, and the Death Penalty, 58 Stan. L. Rev. 751, 759 (2005) ("[T]he relevance of purposeful action is clear: Those who purposefully transgress are more blameworthy because they have affirmatively chosen their course of action and its results"). The authors correctly observe that these retrospective considerations do not significantly impact prospective decision making.
53. See Cass Sunstein & Adrian Vermeule, Deterring Murder: A Reply, 58 Stan. L. Rev. 847, 851 (2005) ("[N]o one is talking about the appropriate punishment of governors or about how much to 'blame' individual public officials. The question is how to evaluate official policies."). Moral agents are concerned primarily with acting permissibly and only secondarily with how their impermissible acts will be judged after the fact. Steiker locates the purposeful/non-purposeful distinction within a grading rule, rather than in the content of two different conduct rules, the relative seriousness of their violations, and the conditions for their permissible violation.
54. See 2 F.M. Kamm, Morality, Morality 240-41 (1996).
55. The applicability of a constraint grounded in the relationship between an agent and a victim can be affected by distinctive properties of the agent. For this reason, states may have moral duties to their citizens that they do not have to non-citizens. However, this article deals with victim-focused constraints corresponding to human or natural rights rather than with relationally grounded constraints corresponding to civil and political rights. Citizenship and other relational properties should not affect the analysis.
56. Prerogatives are thought by some to represent morality's accommodation of our natural tendency to reason from a personal point of view from which our projects, relationships, and commitments carry a weight out of proportion to their agent-neutral value. See, e.g., Samuel Scheffler, The Rejection of Consequentialism 20 (Rev. ed. 2003). It might therefore seem to display a different kind of symmetry to rest constraints on features of our own agency. However, prerogatives need not be understood in purely agent-focused terms. The demands of morality-at least that part of morality concerned with permissions, requirements, and prohibitions-can instead be understood in terms of the legitimate demands of others. On such a view, prerogatives represent the limits of how much we can legitimately demand that others sacrifice for our own sake. It is in part for this reason that it is much harder to justify options not to protect the rights or promote the well-being of others than to justify options not to fully pursue one's enlightened self-interest or promote impersonal values such as the appreciation of beauty or the acquisition of knowledge. If agents are always permitted not to pursue impersonal values or their enlightened self-interest then all prerogatives can be accounted for in victim-focused rather than agent-focused terms.
57. See, e.g., Quinn, supra note 37; Kamm supra note 15.
58. See, e.g., Stephen L. Darwall, Agent-Centered Restrictions from the Inside Out, 50 Phil. Stud. 291 (1986).
59. Gardner, supra note 2, at 129.
60. See Kamm, supra note 15, at 28-29.
61. Blumenson, supra note 40, at 220.
62. But see Stacy, supra note 25. Stacy argues that deontological categories break down in cases involving conjoined twins, and that this implies that these categories are not valid in other contexts. These cases are exceptional in a number of respects, including the affirmative duties of the parents of the twins to preserve their lives and the fact that the twin who dies as a result of separation would have died shortly had the twins remained conjoined. Perhaps most importantly, the twins share a number of vital organs. Hence the assumption that each person has an exclusive claim over her own body does not apply. Rather, conjoined twins present an allocation decision which differs from ordinary organ distribution only in that their claims to the shared organs trump those of third parties. In choosing which of several equally valid claims to a resource should be satisfied, it is acceptable and indeed advisable to ask which claimant will benefit most from that resource. Nothing appears to follow about the rights of persons inhabiting separate bodies.
63. See, e.g., Rome Statute of the International Criminal Court, art. 8.2(b)(i) (recognizing as a war crime "[i]ntentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities").
64. See id. art 8.2(b) (iv) (recognizing as a war crime "[i]ntentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects... which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated").
65. Cf. Frances M. Kamm, Terrorism and Several Moral Distinctions, 12 Legal Theory 19, 36 (2006) ("That one wrong is a more serious wrong than another need not mean that it is more wrong. Some hold that all wrong acts are equally wrong. However, murdering someone is a more serious wrong than breaking his arm, other things being equal.").
66. See Joseph Raz, Practical Reason and Norms (Rev. ed. 1999).
67. Threshold deontologists hold that the DNI only excludes causal consequences of killing noncombatants that fall below a qualitative or quantitative threshold. See section II. C below.
68. The relationship between the causal component of the DDE and the no-means principle explains why it is sometimes permissible to inflict a lesser harm on a person that prevents a greater harm to the same person when the person consents or is incapable of consent. In these cases the person is not treated as a means to the ends of others but is rather assisted in pursuing her own actual or imputed ends.
69. Cf. Robert Cryer & A.P. Simester, Iraq and the Use of Force: Do the Side-Effects justify the Means? 7 Theoretical Inquiries L. 9 (2006) (invoking justificatory intent to argue that the invasion of Iraq cannot be justified by considerations which did not motivate the relevant actors). Cryer and Simester argue that when a wrong (such as aggression) is justifiable in light of its causal consequences, the wrong is justified only if it is committed in order to bring about those consequences. By contrast, this article uses the concept of a protected reason to elaborate the claim that some wrongs (such as killing noncombatants) are rendered justifiable not by their causal consequences but by the causal consequences of the act which causes the wrong which are not consequences of the wrong itself.
70. See, e.g., John Gardner, Justification and Reasons, in Harm and Culpability (Andrew Simester & A.TH. Smith eds., 1996).
71. See Adil Ahmad Haque, Group Violence and Group Vengeance: Toward a Retributivist Theory of International Criminal Law, 9 Buff. Crim. L. Rev. 273, 313-15 (2005).
72. Jean Hampton, Correcting Harms versus Righting Wrongs: The Goal of Retribution, 39 UCLA L. Rev. 1659, 1673 (1992).
73. See Meir Dan-Cohen, Harmful Thoughts, in Harmful Thoughts: Essays on Law, Self, and Morality 172 (2002).
74. The authors also attack a final distinction between authorizing and forbidding wrongdoing. They argue that the state is responsible not only for the wrongdoing it authorizes but also for the wrongdoing it forbids but fails to adequately deter. Echoing Blumenson, we may agree that the state must create the strongest permissible deterrents to wrongdoing while denying that wrongdoing is a permissible deterrent to further wrong-doing. See Blumenson, supra note 40.
75. Judith Thomson denies that wrongs can be justified by the prevention of a greater number of comparable wrongs to others. She argues that since wrongs cannot be aggregated across persons, a wrong to one person can be justified only by the prevention of a substantially more serious wrong to at least one other person. Killing and torture can never be justified because there are no wrongs substantially more serious than these which their commission might prevent. See Judith Jarvis Thomson, The Realm of Rights (1990). It is not clear if her view is properly described as a form of threshold deontology.
76. See, e.g., Walzer, supra note 4, at 254, 268.
77. Cf. Kevin Jon Heller, The Rhetoric of Necessity (or Sanford LevinsoiA Pinteresque Conversation), 40 Ga. L. Rev. 779 (2006) (arguing that a president may only violate the Constitution to protect the constitutional order from complete destruction but not to save many lives). Note that on the quantitative view there is a constant ratio between the wrongs committed and the wrongs prevented; on the qualitative view the preservation of a community can justify many wrongs while a single wrong cannot be justified by the prevention of many wrongs that do not result in the destruction of a community.
78. Posner and Vermeule are therefore incorrect when they write that threshold deontologists are "already in the business of aggregating harms across persons." Eric A. Posner & Adrian Vermeule, Should Coercive Interrogation Be Legal?, 104 Mich. L. Rev. 671, 677 (2006). Defenders of qualitative thresholds need not aggregate the claims of individuals to recognize the supervening and irreducible value of groups.
79. Sunstein & Vermeule, supra note 11, at 740-41.
80. Id. at 727 n.68.
81. see, e.g., id. at 727.
82. Id. at 706, 708, 719, 731.
83. See Jonathan Bennett, Morality and Consequences, in The Tanner Lectures on Human Values II, at 110-11 (Sterling M. McMurrin ed., 1981).
84. Judith Thomson, Self-Defense, 20 Phil. & Pub. Aff. 283 (1991).
85. Sunstein & Vermeule, supra note 11, at 723.
86. Kamm, supra note 12, at 668-69 nn.26-27;
87. Kamm, supra note 54, at 41-42, 41 n.21.
88. Kamm, supra note 15, at 23, 119.
89. Cf. Jonathan Dancy, Practical Reality 127-30 (2000).
90. Kamm distinguishes the Loop Case from the Bystander Case, in which one person is thrown onto the tracks thereby producing rather than sustaining the good consequence of saving the five.
91. Cf. David Enoch, Ends, Means, Side-Effects, and Beyond: A Comment on the Justification of the Use of Force, 7 Theoretical Inquiries L. 43, 50-51 (2006).
92. Cf. Kamm, supra 15, at 117.
93. McMahan, supra note 12, at 722.
94. Id. at 719-21 (imagining a scenario in which one person controls the mind of another).
95. Id. at 726. Importantly, Osama Bin Laden has argued that American citizens are responsible for deaths caused by U.S. military strikes and economic sanctions because they elect U.S. leaders and finance U.S. foreign policy and are therefore liable to direct attack.
96. See Osama Bin Laden: America's Enemy in His Own Words ch. 9 (Randall B. Hamud, ed., 2005).
97. McMahan, supra note 12, at 727.
98. Id. at 728.
99. See id. at 721 ("Because the Initiator is the one who is morally responsible for the fact that someone must die, he should, as a matter of justice, bear the costs of his own voluntary and culpable action.").
100. It is true that just war theory traditionally requires a reasonable probability for success before pursuing a just cause through war. However, the efficacy requirement exists precisely because the cause must justify not only harm to those who produce the threat resisted but also collateral harm to civilians on both sides who ought not to die for nothing when surrender would save their lives. It would be perverse to read the efficacy requirement to support a view that would permit the killing of civilians as a means or chosen end. Note also that the permissibility of futile resistance against combatants suggests that the applicable requirements of necessity and proportionality have an important nonconsequentialist dimension.
101. McMahan suggests a shallower, consequentialist foundation for the DCI but his arguments are inconclusive. See McMahan, supra note 12, at 731 (arguing that the DCI prevents selective prosecution and victors' justice and encourages surrender). Selective prosecution is an inevitable feature of any legal response to mass violence. Victors' justice is a threat to impartial adjudication irrespective of whether domestic or international criminal law is applied, a threat only recently ameliorated by the creation of a standing international criminal court. Finally, soldiers always have an incentive to surrender when doing so substitutes certain death for uncertain punishment. Eliminating the DCI might result in politically motivated prosecutions of soldiers for their government's foreign policy; but this concern is widespread even under current law.
102. McMahan, supra note 12, at 700.
103. Id.
104. Id. at 704-08.
105. The DCI grants combatants qualified rather than absolute immunity. For this reason, the DCI may not protect soldiers whose political leaders openly announce that an ordered invasion is motivated exclusively by a naked desire for territorial expansion.
106. McMahan, supra note 12, at 704-05.
107. 1 Trial of the Major War Criminals before the International Military Tribunal 171, 186 (1946).
108. See Samuel Pufendorf, De Jure Naturae et Gentium 66, 88 (C.H. Oldfather & W.A. Oldfather trans., 1935).
109. Cf. Kamm, supra note 12, at 676 ("This is because sometimes it may be right for one to act as the agent of a state, especially a generally just democratic one, even when the act one does is unjust, without one being held accountable for the injustice of what one is doing.").
110. See Henry S. Richardson, Institutionally Divided Moral Responsibility, 16 Soc. Phil. & Pol'y 218 (1999).
111. Id. at 716.
112. Id. at 716-17.
113. See U.S. State Department Legal Advisor John Bellinger, Unlawful Enemy Combatants, Opinio Juris, at http://www.opiniojuris.org/posts/ 1169000173.shtml.
114. See Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006) (holding that Common Article 3 of the 1949 Geneva Conventions applies to the armed conflict with al Qaeda and Taliban fighters in Afghanistan).
115. See Bellinger, supra note 98 ("POW status is perhaps best seen then as an incentive to follow the rules in armed conflict.");
116. Krauthammer, supra note 2 (arguing that the "deeper purpose" of the Geneva Conventions was "to deter the abuse of civilians by promising combatants who treated noncombatants well that they themselves would be treated according to a code of dignity if captured - and, crucially, that they would be denied the protections of that code if they broke the laws of war and abused civilians themselves").
117. Krauthammer, supra note 2 ("Breaking the laws of war and abusing civilians are what, to understate the matter vastly, terrorists do for a living. They are entitled, therefore, to nothing. Anyone who blows up a car bomb in a market deserves to spend the rest of his life roasting on a spit over an open fire.").
118. HCJ 769/02 Pub. Comm. Against Torture in Isr. v. Gov't of Isr. [Dec. 11, 2006] slip op. paras. 25, 31, available at http://elyon1.court.gov.il/ files_eng/02/690/007/a34/02007690.a34.pdf (holding that unlawful combatants are civilians and can only be directly killed during direct participation in hostilities). Interestingly, both sides deny captured unlawful combatants the same treatment as POWs based on the same legal ground: The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions: 1. To be commanded by a person responsible for his subordinates; 2. To have a fixed distinctive emblem recognizable at a distance; 3. To carry arms openly; and 4. To conduct their operations in accordance with the laws and customs of war. It is plausible to argue that those who fail "[t]o conduct their operations in accordance with the laws and customs of war" should not receive the "rights" of POWs. It is absurd to hold that the "laws" and "duties" of war apply to those who obey them but not to those who violate them. Yet the two readings stand or fall together.
119. See Geneva Convention III, Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 75 U.N.T.S. 135,
120. 6 U.S.T. 3316, T.I.A.S. No. 3364 art. 3 ("Persons taking no active part in hostilities ... shall in all circumstances be treated humanely...").
121. See also Larry May, War Crimes and Just War (2007) (arguing that humane treatment rests not on the past conduct of detainees but on their status as vulnerable human beings in the power of the detaining authority).
122. Of course, not all terrorists are unlawful combatants because many terrorist groups are not parties to an armed conflict. Paramilitary groups like al Qaeda are distinguished from criminal gangs like the Ku Klux Klan by their command structure, strategic objectives, tactical training, and operational scope.
123. Colin Powell, Letter to Senator John McCain, Sept. 13, 2006, available at http://i.a.cnn.net/cnn/2006/images/09/14/powell.article.pdf.