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.

Friday, February 26, 2010

Tollefsen on double-effect and "enhanced interrogation"

Christopher Tollefsen discusses here the recent effort by Marc Thiessen to evaluate, in Catholic terms, the "enhanced interrogation" of those suspected of having knowledge of planned terrorist attacks.  Here is the concluding paragraph:

[T]he upshot of my discussion is this: if, as the double effect defense presupposes, waterboarding or some other interrogation technique is done in a way that is expected to cause harm to the suspect, then that harm is most likely intended as a means by the interrogator and double effect will not justify it. And if such techniques are performed with the intention to cause pain, but not either direct physical harm, or psychological disintegration, then they are likely to be ineffective. Either way, it is, in my view, a good thing that United State’s policy has moved (as it did in the second Bush term) beyond the grim, if understandable, policies of the first few years after 9/11.

Read the whole thing.  And, since Public Discourse does not have comments-boxes, this might be an appropriate post for which to open them here.  I am particularly interested not only in Tollefsen's conclusion regarding "enhanced interrogation", but also the "structure" of the double-effect reasoning that he employs.

https://mirrorofjustice.blogs.com/mirrorofjustice/2010/02/tollefsen-on-doubleeffect-and-enhanced-interrogation.html

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Tollefsen makes a good point about intentional action that is worth remembering, because it dissolves some of the "Sophie's Choice"-style scenarios that are produced by critics of the principle of double effect (PDE) as alleged counterexamples to PDE's coherence. Tollefsen says: "But in the case of interrogation, what is envisaged—-the end pursued by the interrogator—-is, in fact, something that is to be done by the suspect. This is a difficulty, because what I do ends, under most circumstances, with the choice of another agent to do something. I can, of course, establish conditions under which others will be motivated to do something, but its being done is still their doing, not mine."

When the goal of your action includes influencing the will of someone else, the freedom of that other person's will limits the scope of your intention. You can't intend someone else's performance of an action; at most you can intend to encourage someone else to act. This is why "Sophie's Choice" dilemmas are false dilemmas. If the terrorist says pick one of your children to die or I will kill them both, you needn't cooperate out of fear for being responsible for two deaths if the terrorist follows through on his threat. Indeed you shouldn't cooperate, because if you did then you would be intending the death of one of your children, not merely intending to save one of them. Your omission from cooperation might cause the terrorist to kill both (or it might not -- he might lose his nerve or he might just have been testing you), and although your omission is intentional (and indeed just), the terrorist's own free response is not something you can intend.

But Tollefsen's broader formulation of double effect is vague and doesn't really strike at the heart of Thiessen's confusion in invoking PDE. Tollefsen says that PDE "has its primary application in the domain of what one is doing, where what one does, including the consequences of what one does, will encompass both good and evil effects." True, but this is unhelpful because it doesn't reveal Thiessen's real mistake.

I would rather characterize PED as a two-stage decision procedure: first, you determine what the nature of your action is by considering the ends you are seeking and the means you choose for the sake of those ends. Intentional actions are means/ends composites and one's intention includes both chosen means and sought ends. Second, assuming that the nature of your action is good, you evaluate whether its goodness is proportionate to any evils that are foreseeable side-effects of your intended action. If so, then the action is permissible, if not, then not.

The hardest and most controverted feature of PDE is determining what is included in a means, that is, what the agent's object of choice is, in which he proposes to embody his sought-after ends when he acts. Thiessen's mistake, like many others, is to think that an agent's means are determined by whatever sincere little speech he gives to himself: thus, for Thiessen, a soldier need not 'intend' to kill the enemy whose head he is obliterating with a bazooka because the soldier tells himself that he's just defending his country and he'd rather his enemy merely be incapacitated, and there's nothing wrong with incapacitating unjust aggressors to defend one's country; thus a torturer who is brutalizing his captive terrorist need not 'intend' the brutalizing, because the torturer sincerely tells himself that he only wants to encourage his captive to produce vital information, and there's nothing objectionable about encouraging someone to produce vital information, so described.

But this is absurd and it makes a hash of PDE. Soldiers, like executioners, do kill intentionally and the may do so because "the magistrate wields the sword" and they are agents of public authority. Interrogators who use brutal techniques to get information intend those techniques. The real question, then, is what sort of treatment counts as brutalizing torture, not whether using such techniques is intentional.

Posted by: M. O'Brien | Feb 26, 2010 10:59:12 AM

Under a four part test for double effect you have:
1) The act cannot be evil in its object.
2) The bad effect cannot be desired, i.e. no formal cooperation.
3) The good cannot be a result of the bad.
4) The good must be proportionate to the bad.

He argues pretty convincingly that (3) is violated. I don't think he adequately addresses (1). The violation (1) is what defines an intrinsically evil act. Admittedly, he states that arguing that is beyond the scope of his article.

Posted by: M.Z. | Feb 26, 2010 4:07:58 PM

The Catholic Church unequivocally condemns torture. Since the ends cannot justify the means, torture can't be used for any reason - no matter how compelling.

But nowhere have I been able to find an authoritative definition of torture. To some, taking away their iPod would be considered "torture."

The essence of torture can't be in the infliction of pain. Corporal punishment has NEVER been equated with torture. In fact, it was routine in American Catholic schools for quite some time. The bible itself warns against "sparing the rod."

Thus, what must make the intentional infliction of pain "torture" must the circumstances in which it is done.

If done to abuse someone - out of some sadistic pleasure - that would be torture.

If done to degrade or humiliate someone - that would be torture.

Thus, to inflict pain on a child (via a spanking, let's say) in order to "remind him" not to play with matches, is not "torture" in my opinion, but rather, correction. It's not being done to degrade or humiliate its target, and it's not being done to please the parent.

Similarly, if done to extract information out of someone - I wouldn't call that torture. I'd call that interrogation.

+Pax

Posted by: RJames | Feb 26, 2010 10:31:46 PM