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Speaker: Sanford V. Levinson, W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair and Professor of Government, University of Texas at Austin
The Edmond J. Safra Foundation Center for Ethics began the celebration of its twentieth anniversary with a lecture by Sanford V. Levinson, the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Professor of Law and Professor of Government at the University of Texas at Austin. Levinson, who was himself a faculty fellow at the Center for Ethics in 1991-1992, spoke to a packed audience in the John F. Kennedy School of Government's Starr Auditorium on October 26, 2006. Prof. Levinson spoke on "The Ethics of Torture."
Professor Levinson sought both to define what in particular is bad about torture, and to determine whether, given its harmfulness, torture can ever be morally acceptable. He noted that 2007 is the sesquicentennial of the Dred Scott decision, and argued that that decision shared some of the factors we face in evaluating the permissibility of torture, both in the harm the practice does, and in the justification for nonetheless allowing the practice.
Slavery, like torture, was perceived as an evil, but the question was whether the value of preserving the union was more important than eradicating the evil of slavery, and could thus justify treating some people as having no rights whatsoever. At the time, the decision was made that the preservation of the Union was sufficiently important to justify upholding the practice of slavery. The same situation faces us now: torture, while acknowledged as an evil, may be required for maintaining national security.
Torture is similar to slavery, too, in what its harm consists in. It is not so much the bodily pain of physical torture, Levinson argued, as the deprivation of all control that make torture so bad. The victim is completely subordinated, and so that even in those times when no pain is being applied, the torture victim is identified as a person who has no rights, who is in the complete control of the other. This position of dominance, where the victim has no recourse whatsoever, is an evil central to both slavery and torture.
Can such a practice be morally justified? Levinson argued that, first, the rise of “virtual states” means that older ways of assuring national security are no longer effective: when tensions arose in the cold war, for example, we could use the threat of retaliation to deter attacks. While this was in a sense itself morally paradoxical, since retaliation after a nuclear attack has been launched only compounds the harm done through the initial attack, the threat of retaliation nonetheless brought about a morally better situation, where no initial attack was launched. In the age of the virtual state this is no longer effective: we don’t know who or where the enemy is, and the threat of retaliation is thus moot. Given this, to forestall devastating attacks we need information before the fact, and interrogation is one avenue to securing such information.
Second, Levinson claimed that torture can indeed be effective in providing information necessary to security. If torture is ineffective there could be no moral rationale for engaging it, but Levinson presented two real-world cases where torture, or the threat of torture, did in fact elicit the desired information. We cannot, then, avoid the question of its permissibility by arguing that its inefficacy means it is never really needed.
Third, Levinson argued that given the costs which may be at stake, it would be extreme to argue that torture cannot be justified ever in any circumstance, though the fate of the world should be at stake. He cited Charles Fried’s claim that it is fanatical to do right “even if the heavens will fall.” Such an absolute proscription does, however, seem required by the United Nation’s Convention against Torture, which says no exceptional circumstances whatsoever can be taken to justify torture.
Fourth, Levinson argued that making torture illegal would put us in the situation of spelling out, perhaps arbitrarily, what methods would fall short of torture, and could thus be considered permissible, however inhumane these might be. The proscription of torture places great pressure on us to define what is torture, and what are merely relatively acceptable forms of cruel and degrading treatment. Victims and perpetrators are both likely to misdescribe what has happened between them, emphasizing the need for clarity if we are to proscribe torture but allow other forms of significant interrogation. We would need to consider the nature of water-boarding, sleep deprivation, and hypothermia, to see what should be considered coercive but not torture. We would need to make quantitative decisions as to precisely how much sleep deprivation, how much confinement with loud music, etc. are permissible, and justify what makes these, and not other kinds of treatment, acceptable.
In the end, Levinson said that while he himself is attracted to the absolutist position, he thinks this may nonetheless be a case where political leaders have to get their hands dirty. If we are to have torture, though, there should be a clear delineation of responsibility, and such decisions should be made at the highest levels, where individuals could be held accountable for having decided that torture is permissible in specific cases. This will require that we consider the character structure we want in our leaders, and that we hold them, and those who elect them, to an ethic of responsibility.
A lively discussion followed Professor Levinson’s talk, both as to his definition of torture and his claims about the possible justifiability of engaging in it.
Sarah Conly, Faculty Fellow 2006-07