In light of the ongoing debate over torture, we sent a few serious interrogatories to some of
NRO’s ethical experts: Assuming your war is a just one, and countless lives hang in the balance, is “justice” a flexible concept? What should be the ground rules for a civilized society? Can there be ground rules?
GERARD V. BRADLEY
The requirements of justice really do vary with the severity of the circumstances facing the decision maker, so much so that one may — justly — cause the death of many to save an even greater number. But there are some things that are never morally justifiable, no matter what the foreseeable consequences might be. I think that some acts which today are called “torture” fall into this category, but that others said to be “torture” do not. In other words: I think that “torture” is always wrong; it is not to be done, no matter what. But I also think that some acts commonly labeled “torture” are not.
Let me explain, starting with the claim about things that are not to be done, no matter what the consequences. I think we all agree on this basic point, even if we disagree about whether torture (or some form of “torture”) is one of these things. Certainly we say that there are some exceptionless moral norms, even in warfare. Targeting innocent women and children for death is one example. Has anyone on either side of the torture debate proposed that we put a gun to the head of some al-Qaeda operative’s wife or child, in order to extract a confession from him? I do not recall any such proposal.
One might respond by saying that the torture question is different because we propose in that case to do unusual things to the operative himself, to someone who is not an innocent bystander. But has anyone seriously proposed that there are no moral limits on what might be done even to a combatant? Would we say that sodomizing an al-Qaeda terrorist is morally permissible in order to obtain information about a ticking bomb? And then quartering the guy, if the sodomy does not make him talk? I say that we should rule out these and other acts because they are immoral, no matter what may follow from our moral restraint.
It is true that American citizens have a moral right to the protection of their lives by our government. But no one has a moral right that anyone else do something which is immoral. And this is why the very real prospect of “saving American lives” is not a debate-stopper in this context.
Now to the first point. Let’s take off the table any option that would be wrong in itself. The question of justice is mainly the question of fairness. And the fairness question is mainly about considering all the consequences of our acting in this way or that or choosing to do nothing at all. Figuring out what is fair in this way calls for very clear-headed, and even cold-hearted prudential judgment. By “cold-hearted” I mean that we must not let sentiment or queasiness deter us from doing what should be done. So, if bin Laden is, right this minute, attending a wedding feast in Peshwar, and the only way to get him is to launch a missile that will kill everyone present, we should probably do so. We would not be targeting the innocent guests. We would instead be accepting their certain deaths as side effects of targeting bin Laden. If we knew that an innocent person had been saddled with a suicide belt to be remotely detonated in a crowded bazaar, it would be right to shoot that human mule dead in order to save those in the bazaar.
— Gerard V. Bradley is a professor of law at the University of Notre Dame.
E. CHRISTIAN BRUGGER
The rule of law rightfully tolerates actions in times of national crisis that would not otherwise be morally justified (e.g., curfews, quarantines, incarcerations, coercive force, etc.). The question then is whether severe interrogation measures are ever justified in times of crisis, such as during wartime. Unfortunately, some think all severe measures are tantamount to torture; and the term “torture” is so loaded with opprobrium that even to ask the question can place one on the losing side of the argument. But given our day’s challenges, the question has to be taken seriously.
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