Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Sunday, January 30, 2005

More on Interrogations

I've received a lot of e-mail in response to my earlier post, and to my question, "is it the case that an appropriate respect for human dignity absolutely rules out all interrogation tactics -- employed, let's assume here, on persons who are being otherwise humanely treated, where there is a reasonable basis to believe the persons have information about potential or past terrorist attacks -- designed to 'break a suspect's reliance on God'?"  I'd welcome more reactions.

I should note, by the way, that Marty Lederman -- a top-flight lawyer who is, I'm sure, already familiar to those in the law-blog world -- has contributed an enormous amount of work over at Professor Jack Balkin's blog on the questions surrounding the interrogation tactics used at Guantanamo, in Iraq, and elsewhere.  Check it out.

I also asked for, and was pleased to receive, Professor John Finnis's thoughts on the matter:

. . . There's nothing per se wrong with trying to shake a person's faith in God, if it is a false faith (and provided one isn't intending to replace it with a false belief such as that there is -- or may well be -- no God or no divine will and providence for human beings). If he thinks God is telling him to blow down the Twin Towers, or that his own scheme to do so has divine blessing or will be divinely rewarded, then trying to undermine and overthrow that faith is not per se wrong. The question then becomes one about means. If women behave towards prisoners with the intent to suggest that fornicating with them would be a good thing, or is an available possibility, that's an immoral means. If women behave towards prisoners with the intent to suggest that the prisoners' faith-guided belief that women are not equal to men, or ought to have no place outside the home, is a false faith, whose falsity is a clue to the falsity of their faith-guided decision to blow down the Towers and to maintain silence about that plan in interrogations, then I don't see anything wrong with their so acting. (I'm talking per se wrong . . . . What I've said has to be qualified by adding that, as always, one has to consider side-effects as well as what's intended, and so, if e.g. atheism and/or lust are likely side-effects, in the prisoner, of what one is doing, one needs to satisfy oneself that bringing about or risking these unintended but foreseeable and bad consequences is not unfair. I don't see why it should be thought to be so in cases where innocent people are at serious risk from the prisoner's or his colleagues' activities and there is a good chance that shaking his false faith will significantly diminish that risk.

Professor Gerard Bradley adds:  "In addition to what [Professor Finnis] says, it might further clarify matters to consider whether it would be right to limit a Muslim prisoner's diet in such a way (mostly pork?) that he is eventually sorely tempted to give  in, eat the forbidden food, recognize that by doing so he is a pretty poor Muslim, and maybe abandon his faith in jihad, and maybe in Allah altogether.  Unlike the case of female interrogators, we would here be going beyond refusing to adjust our practices (which presuppose equality of the sexes) to suit Islam, and acting so as to induce a kind of conversion.  I think this [tactic] -- consciously feeding the guys pork to break him -- might be wrong, as manipulation if not coercion in matters religious."

Professor Larry Solum -- who runs, among other things, the invaluable Legal Theory Blog -- says: "I would think that such tactics [i.e., questioning aimed at breaking a suspect's "reliance on God"] are inconsistent with the liberty of conscience and hence are (prima facie) contrary to the duty of respect for individual dignity owed to all humans.  You can make the usual consequentialist arguments about dire circumstances.  An interesting variant of the question concerns how one ought to treat this issue from within particular religious conceptions, GIVEN the assumption that the particular individual is NOT IN FACT relying on God, but is instead (perhaps unintentionally) relying on evil in religious garb."



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