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.

Thursday, April 23, 2009

Redirecting harm through torture: the information gap

Villanova law student Casey Khan responds to Chris Eberle's post regarding torture as the distribution of harm:

Prof. Eberle gives one of the most sophisticated arguments I've seen for a limited instance of justified torture.  The reason the argument fails, however, is the same reason all consequentialist ethical arguments ultimately fail, it is reduced to a state of incalculable contingencies. 
Prof. Eberle argues that since KSM culpably set in motion a plan that is going to potentially kill innocents, it is permissible distribute the harm away from the innocents, and redirecting the harm to KSM by torture.  The option is binary according to Prof. Eberle, waterboard KSM stopping the plan to kill innocents, or LA's innocents are destroyed. 
The major error with this binary option is that it is a complete fiction since there is no way of knowing, ex ante, whether or not the waterboarding would actually would help thwart the plan.  The KSM problem will never fit on a neat binary scale, and each contingency's conditional probability is necessarily incalculable.  Each of these potential actions cannot be reduced to a risk, but are rather what Frank Knight observed as uncertainties which are estimates of a "crude and superficial character" based on the behavior of an indefinitely large number of objects.  In the KSM case they are: probability that waterboarding KSM actually yields the right info, probability that those who use torture induced info actually stops the plan (this will have to take into account probabilities of the particular police or military unit's effectiveness), probability that the KSM plan is doomed to failure for a whole host of reasons (terrorist unit effectiveness, unexpected events stopping the plan).  In fact, there is a real possibility that you could get the double whammy of torturing KSM and LA is destroyed (doing evil and evil came anyway).   If we are going to have a scientifically certain methodology of harm distribution based on a binary option, these are the probabilities we will have to quantify in order to make the consequentialist decision, otherwise, there is no way to know ex ante, whether torturing KSM or not is the right consequentialist decision to make.  Since each of these probabilities is unknowable ex ante the consequentialist ethic is quite useless in determining where to distribute the harm.   (For more on this, see the works of Anscombe, Finnis, Grisez, and Boyle).
Warfighting (and using torture to stop KSM is a form of warfighting), like the other professions that deal with uncertainty and the human person (medicine & law) is an art, not a science.  While science can help in certain ways, scientific principles, while seductive to the modern mind, do not govern effectively in making such ethical decisions, primarily since these arts deal with the incalculable uncertainties created in the human dignity of free will.  God did not create us to be binary automatons, but, irreducible, incalculable.  [It seems to me that even the most powerful and elegant consequentialist arguments, ala Judge Posner & Coase, are still reduced to this incalculable state.]
Therefore, the ethics of torture cannot be justified based on Prof. Eberle's formulation, as there is no possible way to make a decision.  We can, however, look for other ways that are not evil in stopping plans by KSM.  Restricting ourselves from torture frees the human imagination to other possibilities, good actions where we know in our hearts God will say, "well done, my good and faithful servant."  If you look deep into your heart, and really consider what torture is, you will know that God is saying "you brood of vipers!" 


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