Academic journal article Ethics & International Affairs

Torture and the "Distributive Justice" Theory of Self-Defense: An Assessment

Academic journal article Ethics & International Affairs

Torture and the "Distributive Justice" Theory of Self-Defense: An Assessment

Article excerpt

On August 1, 2002, Assistant Attorney General lay Bybee presented to White House Counsel Alberto Gonzalez a memorandum addressing the question of what interrogation methods were prohibited by the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. (1) The memorandum, widely seen as a rubber stamp for the Bush administration's use of torture, adopted an extremely narrow definition of torture, holding that "certain acts may be cruel, inhuman or degrading, but still not produce pain or suffering of the requisite intensity to fall within Section 2340A's proscription against torture." (2) But while holding that the legal ban on torture "is limited to only the most extreme forms of physical and mental harm," the memorandum also addressed the question of when an interrogation method "might arguably cross the line" and constitute legally prohibited torture. (3) The memorandum argued that criminal liability for such conduct might be avoided by pleading the "standard criminal law defenses of justification and self-defense," where the use of torture was necessary to "elicit information to prevent a direct and imminent threat to the United States and its citizens." (4)

The memorandum provoked widespread outrage both domestically and internationally when it was leaked, as it was seen as permitting the president to authorize the use of torture while denying he was doing so. Especially controversial was the limiting of the definition of "torture" to cases where the pain was "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." (5) What has received far less attention are the defenses to a violation of the torture statute, especially the memorandum's claim that torturing a terrorist could be justified on the grounds of self-defense:

   Under the current circumstances, we believe that a defendant
   accused of violating Section 2340A could have, in certain
   circumstances, grounds to properly claim the defense of another.
   The threat of an impending terrorist attack threatens the lives of
   hundreds if not thousands of American citizens. Whether such a
   defense will be upheld depends on the specific context within which
   the interrogation decision is made. If an attack appears
   increasingly likely, but our intelligence services and armed forces
   cannot prevent it without the information from the interrogation of
   a specific individual, then the more likely it will appear that the
   conduct in question will be seen as necessary. If intelligence and
   other information support the conclusion that an attack is
   increasingly certain, then the necessity for the interrogation will
   be reasonable. The increasing certainty of an attack will also
   satisfy the imminence requirement. Finally, the fact that previous
   al Qaeda attacks have had as their aim the deaths of American
   citizens, and that evidence of other plots have had a similar goal
   in mind, would justify proportionality of interrogation methods
   designed to elicit information to prevent such deaths. (6)

TORTURE AS SELF-DEFENSE?

Why not simply justify the torture of terrorists on the grounds that the benefits (the savings of lives) would outweigh the costs (the temporary suffering of the terrorist)? The answer is that neither morality nor law allows the use of such wholesale consequentialist reasoning; indeed, if it did, the Bybee memorandum could have relied on the straightforward argument for torturing terrorists that the end justifies the means. (7) Instead, the memorandum asserts a far more problematic self-defense justification for torture. It argues that the "doctrine of self-defense permits the use of force to prevent harm to another person," and hence would apply to the case of the use of torture against a terrorist to prevent harm to civilians, where the "threat of an impending terrorist attack threatens the lives of hundreds if not thousands of American citizens," assuming that the necessity, proportionality, and imminence requirements are met. …

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