Defensive Interrogational Torture and Epistemic Limitations

Public Affairs QuarterlyVolume 27, Number 4, October 2013

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DEFENSIVE INTERROGATIONAL TORTURE AND EPISTEMIC LIMITATIONS

Bradley J. Strawser

The philosophical debate over the ethics of torture has taken on new vigor of late with the publication of several books on the topic by a handful of

accomplished moral philosophers. In this review essay, I will discuss some epistemic issues surrounding the decision to torture and how those complexities should inform the debate over its moral permissibility in practice. To that end, I will focus on Frances Kamm’s Ethics for Enemies: Terror, Torture, and War; Fritz Allhoff’s Terrorism, Ticking Time-Bombs, and Torture; Uwe Steinhoff’s On the Ethics of Torture; and Stephen Kershnar’s For Torture: A Rights-Based Defense.1 All of these authors defend that torture can sometimes be justified, at least in principle. Most of them also go on to explicitly defend that torture can also be permissible in practice in some actual, real-world cases. At the time of this writing, a comprehensive six-hundred-page report has just been released by an independent, bipartisan review board on the torture practices of the United States government in the years following September 11, 2001.2 Despite President Bush’s protests that “we do not torture,” the report concludes that “it is indisputable that the United States engaged in the practice of torture.”3 It shows that the practice of torture was not limited to a small handful of suspected terrorists, but that torture was widespread and committed against a large number of detainees at Guantanamo Bay and other CIA “black sites” across the globe.4 Further, contrary to the assertions of former Vice President Dick Cheney, who claimed that the “enhanced interrogation” methods produced intelligence that “prevented the death of thousands, if not hundreds of thousands, of innocent people,” the report concludes that there is “no evidence” that these torture prac-tices “produced valuable information that could not have been obtained by other means.”5 While the report concedes that “a person subjected to torture might well divulge information,” it stresses that the information will not only be unreliable but, worse, that torture regularly produces false confessions and faulty intelligence that is actually counter-productive toward the aim of thwarting real threats.6

The considerations I will offer here do not directly refute Kamm’s, Allhoff’s, Steinhoff’s, or Kershnar’s primary arguments regarding the permissibility of

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torture in principle; such an ambitious project would far exceed the scope of this essay. Rather, I aim to show that there are some insidious epistemic limits and hurdles at play in the torture case, in ways that are distinct from other kinds of putatively permissible harm (such as defensive killing). These difficulties count heavily against the permissibility of interrogational torture for the overwhelming vast majority of cases that could ever obtain in the real world. Put another way, the considerations I offer here should be taken to add some support to the claim occasionally made about torture put well by Daniel Statman: “The moral danger of torture is so great, and the moral benefits so doubtful, that in practice torture should be considered as prohibited absolutely.”7

To this end, I’ll advance a form of epistemic moral contextualism and show that many of the probabilistic calculations necessary in any (or nearly any conceiv-able) decision to commit interrogational torture for the purpose of thwarting an impending harm are both more complex and thereby more morally constraining than many of these authors have presumed. First, in § 1, I will briefly discuss one aspect of the torture debate and these four authors’ conclusions therein. Namely, it’s supposedly permissible use as a form of defensive harm analogous to, or borne out of, a right to self-defense.8 In § 2, I will sketch a basic account of moral epistemic contextualism. In § 3, I will then highlight our epistemic limitations as they relate to the torture debate; specifically those defenses of torture that rely on self-defense justifications comparing torture to killing. Finally, in § 4, I will discuss some of the ways Kamm, Allhoff, Steinhoff, and Kershnar deal with these limitations and why I find them lacking.One could be forgiven for being confused, as I find people often are, over what the current state of the debate is among philosophers regarding the permissibility of torture. Many likely believe, as the press release for Allhoff’s book intones, that “the general consensus among philosophers is that the use of torture is never justified.”9 But if that’s the case, one wouldn’t know it from the recent plethora of voices arguing just the opposite. The absolutist “never justified even in prin-ciple” view still has its defenders, of course. Bob Brecher fills this role, as does Richard Matthews.10 But the work of scholars like Kamm, Allhoff, Steinhoff, and Kershnar has made this position difficult to maintain. Many philosophers have demurred and conceded that perhaps torture can be justified in principle for some far-flung “ticking time-bomb” type cases, but that this is “virtually irrelevant in practice,” and that there remain strong reasons for an absolute legal prohibition against torture in practice.11

It can therefore be difficult to outline the present debate without mislabeling various positions. This is because there is no clean, neat division in philosophical circles between those who oppose torture and those who defend it. As just noted, many who say of themselves that they oppose torture, in fact mean by that that they oppose it in practice in “virtually” all cases, whilst admitting that it could be permissible in theory. Yet “true” absolutists like Brecher take such positions

to task, claiming that they are not thereby truly opposed to torture.12 Conversely, those who give the strongest defenses of the permissibility of torture, such as Allhoff, are usually at great pains to say that they take the evils of torture very seriously and do not come to their constrained, conditioned conclusion lightly. Steinhoff criticizes the rhetoric often employed against positions, such as his stressing that he is no “friend of torture” simply for daring to defend the “justifi-ability of torture in some narrow circumstances.”13 Further, many simply set aside the in-principle or in-practice distinction in their work, choosing rather to focus entirely on one over the other. Kamm, for example, focuses almost entirely on the conceptual questions of what torture is and whether it can ever be permis-sible in principle and why.14 This is not to say that such work does not have direct impact on whether torture could be permissible in practice—it clearly does. But, rather, that the author, in analyzing the cases she does, often sets aside a variety of potential difficulties that would arise in actual practice that would make the decision to torture far more restricted. We see this trend across these books: a fallback position of emphasizing the permissibility of torture in principle, while not consistently giving proper credence to the real-world difficulties of ever obtaining such a moral permission.15

I will focus here on some of these real-world difficulties that arise for a particu-lar kind of (supposedly) permissible torture. Namely, I will focus on how certain epistemic hurdles trip up the real-world possibility of interrogational torture as a form of defensive harm. To begin, consider a standard rights-based justifica-tion for defensive harm. On this view, everyone has a right to not be harmed unjustly.16 Derivative from this right is the right to self-defense against the threat of unjust harm. If person A is attacking person B and thereby imposing the threat of wrongful harm to B, and person A is in some way properly responsible for the threat of wrongful harm, then it is said that person A has made himself “liable” to defensive harm in an effort to thwart the wrongful harm.17 This defensive harm can be delivered by person B (self-defense) or by a third party (others-defense). In either case, internal to the notion of liability are various constraints on the defensive harm, such as proportionality and necessity. Importantly, liability is not a matter of desert, but is rather instrumental: one is liable to defensive harm only insofar as said harm will block the unjust threat one poses. The argument for “defensive torture” as derived from a right to self-defense is straightforward. If it can sometimes be permissible to kill a liable person to block a wrongful threat of harm, then it can sometimes be permissible to cause a lesser harm against a liable person to block a wrongful threat of harm. All four authors (Kamm, Allhoff, Steinhoff, and Kershnar) defend some version of the view that torture is not as bad as killing (or, at least, can be so for many cases of torture).18 If the authors are correct that torture can sometimes be a lesser harm than kill-ing, then the conclusion that torture could be permissibly used for the purpose of thwarting an unjust threat quickly follows. The most likely real-world scenarios

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where torture could be plausibly defensive in this way would be interrogational torture: when torture is used in an effort to extract information from a person in the hopes that that information could then be used to block an imminent unjust threat (such as a ticking time-bomb).19 This conception of torture as permissible because it is used in the defense of innocents is precisely the kind of justification used by Dick Cheney quoted at the opening of this essay. It is also, notably, the primary reasoning offered by John Yoo in the infamous “torture memos” used by the Bush administration in its legal defense of its torture program.20

Steinhoff and Kershnar each give explicit, highly detailed accounts of justi-fying torture on this rights-based self-defense model. Kamm also follows such reasoning. On this view, torture is not justified as a lesser evil, because the target of the torture is not wronged by it.21 Steinhoff summarizes the position:

Human beings have a right to self-defensive torture against culpable aggres-sors. As we have seen, this is hardly surprising: since people even have a right to kill a culpable aggressor if under the circumstances this is a proportionate and necessary means of self-defense against an imminent threat, and since most forms of torture are not as bad as killing, people must also have a right to torture a culpable aggressor if this is under the circumstances a proportionate and necessary means of self-defense against an imminent threat.22

Allhoff thinks it is a mistake to justify torture in this way. This is because, firstly, Kamm, Steinhoff, and Kershnar each give rights-based deontological arguments, while Allhoff is a utilitarian. Hence, he need not rely on defensive rights to justify torture. Rather, he argues that in some cases, torturing someone would better promote the greater good, or prevent the most harm; that it would be a lesser evil between two wrongs. Secondly, he thinks the attempt to justify torture via self-defense is wrongheaded for more general reasons. He contends that torture lacks what he takes to be two obvious features of standard self-defense cases: the person harmed is the one directly posing the unjust threat to be averted, and the person delivering the defensive harm is the one being attacked. Thus, Allhoff thinks that torture is not a good candidate for a defensive harm-based justification.23 But these are rather simple points easily overcome by a rights-based model for defensive harm broadly (not merely self-defense). If we expand to third party others-defense, then Allhoff’s second objection fails. His first point, about the indirect nature of the threat posed by the subject of torture, similarly fails. As Steinhoff, Kershnar, and Kamm all contend: if the subject to be tortured is morally responsible for the threat in question (perhaps a ticking time-bomb he planted somewhere, or perhaps just a bomb plot he was culpably involved in), then whether the threat is presently emanating from his body or not is irrelevant. What matters, on this view, is that he is properly liable for the threat as an exten-sion of his agency, even if not presently directly posing it.24

However, Allhoff helpfully works through alternative ways of justifying torture aside from his preferred utilitarianism, including rights-based approaches. He there

concludes that “any nonabsolutist” deontology must give some concessions to the permissibility of torture.25 This results from paying proper attention to the rights of those who are threatened by an unjust harm, and not merely focusing on the rights of the potential subject of torture. As he writes, “[h]owever we approach this issue, it cannot be through some myopic (mis)accounting of the rights at stake. . . . [T]he point is that someone’s rights are going to be violated regardless: either the terrorist’s right against torture or else the [innocent people’s] collective rights to life.”26 And he thinks that on such views, it is the terrorist who should be harmed rather than the innocent people because it is he who created the threat to begin with. This sounds similar to the liability-type views of the other authors: the potential target of torture is morally responsible for the impending threat and, hence, must bear the costs to avoid it.27 Thus, although he rests his primary case on utilitarian grounds, it seems that Allhoff can accept the basic notion of “defensive torture” as discussed by the other three authors. That is, torture that is permissible for the purpose of defending innocents against an impending wrong-ful harm.28

Against these “defensive torture” type justifications, my basic claim is this: in the vast majority of real-world cases, we have significantly greater epistemic assurance that killing (or similarly harming) a liable person posing an unjust threat would successfully block such a threat, than any reasonable assurance we can have that torturing a liable person would deliver information to similarly block an unjust threat. Because of this lower epistemic assurance, if some level of epistemic warrant is necessary for permissible action, then defensive torture becomes radically more difficult to morally justify compared to defensive killing. The reasons for this are made clear when we examine many of the epistemic as-sumptions made in defensive torture cases and by paying proper attention to the distinctive feature of torture that it not only often fails, but is regularly counter-productive toward defensive efforts. First, however, I will briefly outline moral epistemic contextualism to show some of the ways in which morality demands that we be properly sensitive to epistemic limitations.

§ 2.

Stepping away from the torture debate for a moment, consider: What standards of epistemic warrant does morality demand of someone before they can justifi-ably undertake a given action? To even ask this question pre-supposes that we are under moral epistemic duties that must be met before we can permissibly carry out certain actions.29 Namely, there is a moral duty to ensure, to some reasonable standard, that one’s beliefs properly line up with one’s available evi-dence when one’s beliefs affect how one treats (or could treat) others. Whether someone believes her act is right or wrong can be separated from whether she should so believe that her act is right or wrong given the evidence available to



her. The question of whether there are moral reasons to believe in accordance with proper evidence is, of course, not a new one. W. K. Clifford argued in 1877 that “it is wrong always, everywhere, and for anyone, to believe anything upon insufficient evidence.”30 But the notion that we can be morally responsible for failing to have certain true beliefs—responsible for our ignorance—is a complex claim. It pre-supposes that there are certain duties regarding our belief regulation, that we can fail to meet these duties, and that at times these duties can be moral and not merely epistemic.31 In my view, if one fails to meet these moral duties regarding certain epistemic investigative standards for some acts, then that fail-ing itself can represent a serious moral wrong, depending on the moral weight of the act in question. Consequently, proper moral risk aversion of that failing can be a legitimate basis for choosing not to act when the stakes are high enough on either side of a moral calculus. That is, erring on the side of caution via inaction can often be the morally sensible decision in order to avoid this particular kind of wrongdoing, even in forced-choice scenarios—the kinds of scenarios so com-mon in the torture literature. When someone commits a failing of this kind—a failure to meet certain moral epistemic duties—then, depending on the context of the case and the act in ques-tion, it can be correct to assign moral responsibility for that failing. Such a failing need not always be a moral failing, but it can be a moral failing if it results in false beliefs that then lead one to act in a way that treats others unjustly. Note that undertaking an act against someone “recklessly,” that is, without proper warrant that it will accomplish the ends one believes it will, can, of course, be a form of treating others unjustly. Just what epistemic standard toward one’s beliefs about a given action we think is fair and proper depends on the kind of act in question. This discussion of changing epistemic standards and correlative investigative demands dependent upon the particular context of belief calls forth the view known as epistemic contextualism.32 Many versions of epistemic contextualism argue that the standards for knowledge shift depending on the epistemic context of a given belief. There is a view that applies this aspect of epistemic contextualism to our moral beliefs in the ways suggested above. Call this view moral epistemic contextualism.33 Although a full discussion of it would take more space than is possible here, the basic idea is simple and intuitive. Most of us upon reflection hold that, as Alexander Guerrero writes, “when making certain sorts of decisions, or preparing to take certain sorts of actions (or to refrain from taking certain ac-tions), what is required of us from an epistemic point of view may be sensitive to what is at stake from a moral point of view.”34

The view holds that the more morally significant or morally risky a given act is that a particular belief will support, justify, or deem permissible, then the more stringent the epistemic demands are on that belief that must be met before one is justified to act on it. That is, the higher the epistemic standard that must be met before one can be said to have met their epistemic duties and reason-

ably claim to be justified in believing a certain belief is directly correlative to the moral significance, or the moral risk, of the act that belief will justify.35 As Guerrero notes, “Importantly, this ‘increase’ in the epistemic demands is required by moral considerations, not epistemic ones.”36 In other words, there are certain moral epistemic demands that adhere to some of our beliefs based on the moral significance of the actions those beliefs will (or will not) justify. To demonstrate this, consider the following case, “Hunter & Photographer.” Paul is a nature photographer, and Mike is a deer-hunter. Each are in separate wildernesses but are in identical evidentiary circumstances: they each see some-thing coming through the bushes toward them. They can’t quite tell what it is yet based on the evidence available—it could be a deer, or it could be a human being. If it’s a deer, Paul wants to take a picture of it, but he doesn’t want to take a picture of a human hiker (he doesn’t want to waste the film, say, on pictures of humans). To get the shot he wants (the deer emerging from the bushes), he’ll have to decide now on whether to start snapping pictures. Similarly, in Mike’s identical evidentiary circumstances, if it’s a deer, he wants to shoot it, but he doesn’t want to shoot a human (of course). Just like Paul, presume that Mike’s best chance to bag the deer is to shoot before it emerges from the bushes and sees him and flees.37

In this case, Mike’s epistemic investigative duty to figure out if it is a deer or a human are far greater than Paul’s. Imagine that to figure out if it’s a deer or human before taking their respective actions, they each yell out, “Who’s there?” in a loud voice. After not hearing anything in response, Paul is convinced that it is a deer and begins shooting his camera. We may think Paul is (epistemically) justified in his belief that it is a deer at this point. But, if Mike took the exact same investigative action and reached the same conclusion and began shooting his gun into the bushes, we would not similarly think that he was justified in his belief that he was shooting at a deer. What is the basis for this difference? It seems clearly that it is the difference in the moral significance of the action that the belief in question will license in each case.38 In this case, it is the risk that the belief may be mistaken thereby leading to Mike accidentally killing a human being instead of a deer. To be clear, it is the possibility that his act, if his belief turns out to be false, will result in a grave outcome, which adds the greater moral significance to his act such that Mike is not justified in his belief. It is the potential downside of his act, if he is wrong, that raises the epistemic bar for Mike; not the moral significance of what he is aiming to do (killing the deer) compared to what Paul is aiming to do (take a photo). Guerrero defines moral epistemic contextualism as follows:

How much one is morally required to do from an epistemic point of view with regard to investigating some proposition p varies depending on the moral con-text—on what actions one’s belief in p (or absence of belief in p) will license or be used to justify, morally, in some particular context.39



This view contends that whether one can act (morally) permissibly in taking her belief in p as (epistemically) justified given the evidence available to them, de-pends on what action that belief will itself give permission to do, and the moral significance of the potential downside of that act, if the belief turns out to be false. I find that some version of moral epistemic contextualism is true, and its truth helps us in our engagement with the present torture debate. So, granting that some form of moral epistemic contextualism is true, then the epistemic duties that people have in various circumstances are driven, in part, by moral demands. And this will mean different things depending on the morally imposed epistemic duties one is under in a given case. In the torture cases, the stakes are usually of the highest sort. Hence, so too are the correlating moral epistemic duties.40

§ 3.

With this in mind, let us return to the torture debate, specifically the argument advanced for permissible defensive torture discussed above as drawn from de-fensive harm more broadly. I contend that the epistemic difficulties in cases of defensive torture are radically greater than those in defensive killing (or other defensive harm generally), at least for the overwhelming vast majority of cases. Indeed, there are several different kinds of epistemic limitations that arise in torture cases that do not even occur in the killing cases at all. Moreover, some of these limitations include potential harms that can result from torture that are counter-productive to the original defensive aim. From this, one could be in similar evidentiary circumstances in a defensive harm case and a defensive torture case, yet be justified to act in the harm case, and not justified in the other. To be clear: If I am correct in this claim, it does not, by itself, necessarily de-feat the arguments put forth by Kamm, Steinhoff, Kershnar, and, by extension, Allhoff, for defensive-based torture. Rather, it simply means that, even if they are correct, the epistemic hurdles for permissible defensive torture will be radically greater than those for other forms of defensive harm. In practice, this means that once the many epistemic constraints are recognized, torture will almost never meet the moral epistemic duties for permissible action, while defensive killing routinely will. Further, these considerations have an insidious effect on the kind of position advanced by these authors. If the authors fix the epistemic threshold for permis-sible defensive harm low enough to overcome the kinds of epistemic hurdles for interrogational torture that I discuss, then that will have the result of making far more torture permissible than is morally plausible. This is particularly vexing for these authors, since most maintain that torture will only be justifiable in very rare circumstances.41

To lay out this difficulty, consider a standard case of permissible defensive killing, “Killer.”

Killer is charging through a parking lot, indiscriminately shooting people with a handgun. Bystander happens to have a gun on her and is a pretty good shot. She shoots Killer with the intention of thereby incapacitating him and thwarting Killer’s unjust threat to innocent people.

Now consider a case where (supposedly) a similar kind of defense of others reasoning applies to using torture to block an unjust threat of harm, “Terrorist.”

Terrorist has planted a ticking time-bomb somewhere in the middle of a city; its exact location is unknown. The police have captured who they believe to be the responsible terrorist. The authorities decide to torture Terrorist with the intention of thereby obtaining information about the specific location of the bomb and thwarting Terrorist’s unjust threat to innocent people.

Comparing defensive torture to defensive killing, we see immediately that the stakes are very high (of course) in both cases. In both cases, someone is about to be intentionally harmed. Consequently, according to moral epistemic contextual-ism, the investigative demands are high. After all, we must guard against wrongly torturing or wrongly killing someone. Recall, however, that Kamm, Stienfhoff, Allhoff, and Kershnar all contend that the harm to be intentionally imposed on Killer is worse than that to be imposed on Terrorist. (That is, that killing is worse than torture.)42 But notice an interesting result that comes about if this claim is true. It will mean that (according to moral epistemic contextualism) the epistemic investigative duties that must be met by the authorities in “Terrorist” are actually lower than those that must be met by Bystander. Because (by assumption) the harm Bystander is about to impose on Killer is worse than torture, the moral epistemic duties that must be met before Bystander can permissibly act in self-defense (i.e., be reasonably sure that Killer is properly liable, that the harm is necessary and proportionate, and so forth) will be a higher bar to reach than they will be for the authorities in “Terrorist.” I take this to be a rather surprising and counter-intuitive result.43 Most think that, whatever the epistemic standards are for permissible action in these cases, the quick decision to implement defensive harm against the rampaging killer will be an easier epistemic standard to meet than the decision to torture. Setting that point aside for now, we can agree that in each case the stakes are appreciably high such that there is a significant threshold of investigative bur-den that one much reach before acting permissibly. That threshold need not be certainty, of course, as will be discussed below. But, the thought is, if someone is about to torture or kill someone, they have a moral obligation to do their due diligence to ensure that they are acting permissibly. Granting that, let’s look at just what epistemic hurdles must be overcome in each case before one may act permissibly in imposing each type of defensive harm. Upon investigation, we find rather extreme epistemic differences between the cases. Moreover, these differences are not accidental to these particular cases, but are endemic to nearly



all cases of defense-justified torture as opposed to defense-justified killing (or similar harming for the purpose of incapacitation). In “Killer,” there is a chance that Bystander is mistaken as to whether Killer is actually liable to defensive harm. That is, one can be mistaken by whether or not he is actually an unjust threat. (And therefore be mistaken on whether he is properly liable to defensive harm.) As the many fantastical cases in the self-defense literature show, there is a wide number of ways this could happen. (Take Otsuka’s “Dignitary & Guest” case, for one example.)44 But, in the real world, there is a rather small chance that Killer does not actually pose an unjust threat in these kinds of cases such that he is not liable to defensive harm. It’s true that people do sometimes mistakenly take people to be unjust threats when they are in fact not; but it is a rather rare event. It would be hard to imagine, indeed, how one spraying bullets indiscriminately into children (say) could actually be acting justifiably, at least in the real world. In any case, when one is not reasonably sure if one is actually liable to receive harm, then one should not act against them.45

Consider the same question for “Terrorist.” Whatever reasons the police may have to believe that Terrorist is the right guy, we immediately see that there will be a significantly higher chance that they are wrong that he is, in fact, liable. That is, they could very possibly have the wrong guy; perhaps Terrorist isn’t the terrorist, after all. This is true even if Terrorist confesses to being the person who planted the bomb.46 Notice how much greater the epistemic doubt here is than in “Killer” simply because the unjust threat itself, while imminent, is geographically separated from the suspected perpetrator such that the police do not actually see him posing it (as Bystander does when she sees Killer literally firing his gun at her and others). Indeed, it is a routine fact of the real world that the police oc-casionally get the wrong guy. Moreover, in “Terrorist” as opposed to “Killer,” there will be a radically higher chance that they are wrong even about the threat’s existence itself. Whatever reasons we might supply for the police’s reasonable belief that there really is a real bomb threat—even rather clear ones—these reasons will still be significantly weaker than the obvious, nearly invincible reasons for believing that the threat in “Killer” is real.47

Note that these discrepancies in the kinds of doubt between cases are due to the different nature of the threat posed in “Terrorist.” I contend that this will be the case for nearly all kinds of threats that could be defended against by means of torture. In general, uncertainty as to the liability of the potential target of de-fensive harm will be far greater in cases of interrogational defensive torture than in cases of defensive killing (or other harm) against an active, present threat.48

But we are just getting started on the epistemic differences between defensive torture and standard forms of defensive harm. In “Killer,” we can have rather strong epistemic confidence that killing Killer will thwart his unjust threat of harm. The reason for this is that permissible defensive killing against a liable

party is, properly speaking, not about the killing at all. It is, rather, an instrumental means to incapacitate the liable person to block the continuance of his or her unjust threat. We can only have as much confidence that killing Killer will be successful in blocking his unjust threat as we can have confidence in his being incapacitated.49

Compare that to the epistemic confidence we can have in torturing Terrorist as a successful means to block his unjust threat. It is, again, considerably differ-ent—and this seems to be a difference in kind. The reason is because our efforts to block Terrorist’s unjust threat require not incapacitation, but cooperation. The aim of the torture is to get him to reveal the information we require so as to then go about blocking the threat by use of that information. One can be reasonably confident that if one shoots an attacker that the defensive harm will thwart the attacker’s threat (by incapacitation). But one cannot be nearly so confident that if one tortures for the purpose of blocking an unjust threat that it will be successful in that effort. This doubt is pervasive in the torture case for a large number of reasons. First, the torture may simply be ineffective at getting Terrorist to talk and reveal the location of the bomb. Second, even if the torture does get him to talk, Terrorist may not be capable of calling forth the relevant information because of the duress he is now under due to the torture itself.50 Third, he may produce information due to the torture, but he may intentionally (or unintentionally) mislead the police and provide false information. But the epistemic burden differential for the defensive torture case only gets worse from here. For any given action, we must also consider possible, unin-tended harms that could result from it, and what epistemic standing we have to predict such outcomes. In “Killer,” for example, imagine that there were children nearby in harm’s way that could be hit by Bystander if her shot missed. In such circumstances, it could be that the risk of unintended but foreseeable harm posed by Bystander’s defensive action could be so great that it would be wrong for her to try to stop Killer’s unjust harm by such a means.51 But, even though the risk of unintended harm to innocents can arise in defensive killing cases, it need not. Indeed, there will regularly be cases of defensive harm in the real world where the only person put at any risk by the defensive action will be the liable attacker. By contrast, in most conceivable instances of interrogational defensive torture in the real world, there is the very real chance just noted that false, unreliable, or intentionally misleading information will be obtained from the torture. This could in turn lead the people engaging in torture to act in response to the bad informa-tion in ways that could result in a wide variety of negative outcomes—including, often enough, risking further innocent people’s welfare. This is a conceptual point, but it is also an empirical one. Indeed, there’s a great deal of evidence suggesting that unintended and unforeseen negative consequences are a rather shockingly common result of interrogational torture.52 From at least the time of the Spanish



Inquisition until its most recent incarnation, what torture has historically proven to be very effective at is eliciting false confessions. But these false confessions often implicate other (often innocent) people or cause authorities to engage in operations that are false starts, or even wholly unjustified acts.53 This, at the very least (and in the very best circumstances) only leads to a loss of resources. Of course, in the cases where defensive interrogational torture is supposedly justi-fied, time will be of the essence, and the waste of resources spent pursuing bad information gained via torture could well be the difference between successfully thwarting the unjust threat or not. But, more often, it can lead to putting further innocent people at risk in trying to respond to the misinformation. This includes the authorities themselves, who may put themselves in harm’s way unnecessarily, or, more often, wholly innocent third parties falsely implicated by the person being tortured.54 It could also lead to the authorities being led into a trap, or overreacting to false intelligence and, say, invading a country that is, in fact, not connected with a given threat.55 Such counter-productive harms produced by torture can be massive—often on entirely different scales of harm than the original harm to be averted. Note that this is a kind of harmful, counter-productive result that can come about from the decision to engage in “defensive” torture that cannot result from a decision to engage in standard defensive harm. Knowing that this is a real possibility for torture, and that historically it has been a common result, gives rise to a stark epistemic difference for defensive torture that does not obtain for standard defensive harm. Call this possibility the counter-productive epistemic problem for torture: defensive torture can (and often does) result in outcomes that are actually counter-productive to the very defensive aims it was originally designed to accomplish. Further, one cannot know whether the information gleaned via torture is good (will aid in the defensive effort) or bad (actually counter to the defensive effort) until at least some of its consequences have already played out. Knowing this—that one is epistemically hamstrung in knowing whether an act of torture will aid in defensive efforts or actually run against such efforts—creates a particularly difficult epistemic bar to overcome for permissible action in the defensive torture case.56

§ 4.

All four authors—Kamm, Steinhoff, Allhoff, and Kershnar—discuss uncertainty as it relates to the permissibility of torture. I will briefly touch on some of their arguments therein and why I find the responses to epistemic uncertainty less than compelling for the permissibility of torture in practice. Kamm offers a series of examples where a potential unjust killer could be incapacitated by means of torture. In the first example, from which the further cases are then developed, she writes: “Person A is trying to kill innocent, non-threatening person B. A is morally responsible for doing this and he will succeed

if he is not stopped. The only way we can stop him is from a distance, by sending electric shocks through him for an hour, deliberately controlling and gradating the level of pain so that it inhibits his movement.”57 In such a case, the “torture” in question is essentially a standard form of defensive harm.58 This is because the “torture” in question is being used instrumentally as a means of incapacitation. As such, the epistemic differences reviewed above between defensive torture and other forms of defensive harm would not apply. Later, however, Kamm considers cases where torture is used in order to elicit cooperation from a liable person to avert his threat. In these cases, the torture is not used to incapacitate, but rather with the goal of leading “to A’s cooperating agency. . . . [T]he pain is not directly incapacitating. . . . [W]e are just trying to get him to give in” and cooperate in a way that will enable the police to avert the threat.59

Kamm considers how her conclusions might change if we had serious doubts about the potential success of A’s unjust threat toward B in defensive harm cases. She points to McMahan’s argument that, as she explains it, “someone’s moral guilt licenses imposing greater risks on him because the guilty party must bear the costs of creating a situation in which we are, in fact, uncertain what must be done in order to make sure that his victim will not die.”60 This is a fairly standard position among rights-based accounts of defensive harm. I agree that any plau-sible account of permissible defensive harm should make room for such license, when liability is clear. She then applies this same reasoning to defensive acts of torture. The key for this move, of course, is the assumed certainty that A was trying to kill B and A’s resulting liability. However, Kamm misses that, for cases of interrogational torture, the certainty over the liability of the target that allows for such license is radically eroded. That is, it is strong certainty regarding the moral guilt of the liable person that she thinks allows for imposing greater risks on the liable party in cases of doubt over defensive harm’s effectiveness or the unjust threat’s potential for success. But doubt over the moral guilt of the target is significantly more problematic, for it brings with it doubt over the person’s liability. Yet when considering uncertainty, Kamm simply assumes that we know that the target of defensive harm is known to be liable. Again, this kind of doubt (over liability) will be endemic to defensive torture in ways that it will not be for standard cases of defensive harm. It is unclear if Kamm recognizes this critical difference in the potential epistemic uncertainties. At the conclusion of her otherwise commendable section considering the moral relevance of torture done ex post, she only reiterates her earlier claim regarding uncertainty that it “may also be permissible to torture a wrongdoer if this is necessary to stop the threat to his victim(s), even if we have some doubts that he was (or still is) trying to kill them, that he will have done (or is doing) something that will succeed in killing them, and that what we do to him will save them.”61 But, again, notice that her conclusion that it may still be permissible to torture in such a case all hinges on her built-in assumption that it



is, indeed, “a wrongdoer.” Once doubt over the target’s very liability is added to these other doubts—as necessarily occurs in torture cases in ways that it does not for standard defensive harm cases—the moral license to impose such risks on the “wrongdoer” evaporates.62

Kershnar approaches the issue of epistemic limitations on permissible defensive harm by denying there even is an epistemic constraint to begin with. He makes this denial because he does not accept that knowledge of a given imminent unjust attack or that the defensive harm under consideration will be successful in block-ing it are required for morally permissible defensive action. Kershnar points out that if certain knowledge is required for permissible defensive harm, then almost no defensive harm would ever be permissible. But, of course, I agree with Kershnar that certainty is not required. Simply claiming that there is some reasonable threshold of epistemic warrant that must be obtained for permissible action need not demand perfect knowledge. But Kershnar goes further. He claims, in fact, that defensive harm can be permissible even when the likelihood of success is known to be low, even very low—or even nonexistent. This is similar to Kamm’s point, but far more ambitious. Kershnar argues that no epistemic constraints on defensive harm (and consequently, on defensive torture as a form of defensive harm), obtain whatsoever.63 That is, according to Kershnar and contra moral epistemic contextualism, there is no reasonable epistemic standard that one must meet before one can permissibly carry out defensive harm. Such a view sounds strongly counter-intuitive on its face, but Kershnar offers a variety of interesting thought experiments designed to back up his claim. Here’s one, “Prison Attack”:

In prison, the Aryan Brotherhood decides to send a message to the Jewish inmates by giving one Jewish inmate a severe beating, thereby showing the rest that they are all vulnerable and should transfer out of C-Block. They attack Morty. He knows that any defensive violence is unlikely to stop the attack and in fact is likely to make it even more savage.64

Kershnar argues that intuitively Morty may permissibly respond with defensive violence even if he knows that it will be ineffective at stopping the attack. Kershnar maintains this even if Morty knows (somehow) that it will be wholly ineffective at even lessening or mitigating the attack.65

I disagree with Kershnar. This is part of a larger debate over defensive harm more generally that I cannot resolve here, but I will briefly show why this issue is so problematic for rights-based accounts of defensive torture. First, I think in such cases there must be some epistemic standard—however minimal—that a given action will do something positive toward the goal of defending the nonliable person. I think that assumption is built into our intuitions for these kinds of cases. That is, we think that there is some chance that Morty’s fighting back might aid

in his defense, however small. (How, one might ask, could Morty know that his defensive violence stands no chance of mitigating the unjust harm whatsoever?) Second, I think there’s confusion here between liability and desert. Recall that on a rights-based account, defensive harm is permissible against a liable person only as an instrumental means to block the unjust harm. In cases like “Prison Attack,” I find it is our beliefs regarding the moral guilt and resulting desert of the Aryan Brotherhood that drives our intuitions over whether Morty can permissibly fight back. If liability is an instrumental notion, wholly separated from desert, then the conclusions Kershnar draws from “Prison Attack” do not follow (unless there is some chance that Morty fighting back might work).66 Indeed, “defensive harm” simply becomes retribution on such a view, since the harm does nothing toward actually defending the attacked person. More importantly for the torture debate, notice that an odd result of this posi-tion will be that torture could be justified even if one did not think it had a good chance of working. Indeed, one could be justified to use torture even if it was very unlikely to work, or even known that it would not work. Since Kershnar rejects any epistemic constraint whatsoever, as long as the torture is committed against a liable person (a rights-forfeiter on his account), then it seems he is committed to claiming that torture would be permissible in any such case. Indeed, it appears his account could even say torture is permissible in a case like “Villain”:

The police have captured Villain. Villain set up a bear-trap somewhere in the city and it will break someone’s leg when they unwittingly step on it. Villain took a memory erasing pill after he set the trap; there is no way he can recall where the trap is set, and the police know this. The police torture Villain, since he is a rights-forfeiter and they want to stop his unjust threat. Yet they know with certainty that torture will be wholly ineffective at thwarting the unjust threat for which Villain is responsible.

How is “Villain” relevantly different from “Prison Attack”? If Kershnar claims that there is no epistemic constraint on defensive harm whatsoever—and he does—then it seems like torture will be sanctioned in wildly implausible cases like “Villain.” The only way to say that “Prison Attack” is relevantly different is to admit that there is some chance that Morty’s defensive harm could be effective. Otherwise, there is little difference between Morty’s violence and banal cases of vengeance—giving someone “what they deserve.” But, again, that is a far cry from liability. Such harm is not properly defensive harm. Hence, Kershnar’s rejection of any epistemic constraints seems to get him far more permissible torture than is normatively plausible.67 But the problems with rejecting any epistemic constraints do not end there. This is because, as discussed above, a further epistemic problem for torture is not knowing for sure that the captured person to be tortured is, in fact, the liable person (or a rights-forfeiter). Kershnar’s many arguments rejecting any epistemic constraint on permissible



defensive harm are all predicated on the certainty of the liability of the target of that harm. In “Prison Attack,” for example, it’s clear that the Aryan Brotherhood is liable—they are presently beating up Morty. But such certainty does not arise in the defensive interrogational torture case, as shown above. If so, then this has to be at least one kind of epistemic constraint that even Kershnar’s account is forced to accept. Hence, because Kershnar’s model is a rights-based theory, problems with uncertainty over the liability of the target of torture are something he cannot escape.68

Several philosophers, Henry Shue most prominently among them, have raised similar points that I am discussing here regarding difficulties with torture cases in the real world. Shue argues that ticking time-bomb cases rely heavily on vari-ous idealizations that add features to the case so as to “make the example better than reality, which lacks those features.”69 But, Allhoff responds, we can do away with these idealizations, and the moral calculus can still come out in favor of torture, in some cases. In Allhoff’s view, “the central point is just that the vagaries of actual experience (e.g., the loss of epistemic certainties) complicate rather than derail ticking-time bomb thinking.”70 Note that this will naturally be true for Allhoff’s utilitarian account, as opposed to the rights-based accounts of the other three authors. Issues over the liability of the target of torture, for example, need not weigh heavily in Allhoff’s model if it can be shown that the harms to be potentially averted are such that they outweigh the costs of imposing torture, even torture upon innocent, nonliable people. Allhoff thinks that for any given real-world concern that could be raised against the permissibility of torture, he simply needs to point to a countervailing harm that could possibly be averted by torture to make it worth it; to make it the lesser evil. As a method for justifying instances of torture, this approach clearly has major advantages. If Allhoff can ratchet up the costs to be potentially averted (make the unjust harm impact a large enough number of people, for example), then he can overcome any uncertainty, so long as there is some chance that torture could work. One perhaps surprising result of his view, however, is that it will require a particularly large imminent threat to be averted by torture to justify its use. The greater epistemic uncertainty Allhoff admits to be the case in real-world instances, the greater in scope the corresponding unjust harm to be averted must be to outweigh it. The rights-based accounts held by Kamm, Kershnar, and Steinhoff, conversely, can justify defensive torture for unjust threats much smaller in scope. This is because, recall, on those views, the torture would not be wronging the liable person. This is a key point for the moral epistemic contextualism account that I am using to judge the practical possibility of permissible torture. Recall above the discussion of ratcheting up or down an epistemic threshold for permissible action as correlative to the moral significance and risk of an act licensed by any given belief. There I discussed how if the potential negative outcome of

an act is particularly weighty, then the epistemic bar for proper justified be-lief licensing that act, and corresponding moral permissibility, goes up (e.g., the risk of shooting a human being compared to the risk of wasting film in a camera in “Hunter & Photographer”). One might here object that the ratchet-ing up or down of the epistemic threshold for justified belief can work the other direction—down—as the moral significance of what is to be gained or averted by a given act is increased. Consider, for example, if we change the scenario in “Hunter & Photographer” such that the hunter Mike is not out for mere recreation but is, rather, responsible for feeding a large group of people who are on the edge of starvation and lost in the wilderness, and this potential deer may be the last chance to feed them. In this case, one might think that the epistemic bar for justified belief (and corresponding permissible action thereby licensed) is lowered as it corresponds to the moral weight of the need the act is aimed to address. If this is true, then, note, this will only help a defense of the permissibility of torture like Allhoff’s, which is solely built upon very high-cost stakes to be averted (the ticking time-bomb type cases). It will not aid the rights-based defenses of torture’s permissibility, such as Kamm’s, Steinhoff’s, and Kershnar’s, because those accounts can, supposedly, justify torture even for the saving of only one life.71

But even given this theoretic advantage, Allhoff’s utilitarianism still falls short when it comes to the practical epistemic problems facing torture. I mentioned above that Allhoff, to his credit, spends a great deal of time examining the real world practice of torture, and he hopes to directly engage criticism designed to target the plausibility of it ever being permissible in practice due to real world limitations. Yet, despite his admirable effort, Allhoff’s treatment of the real-world epistemic limitations of torture is still inadequate. I find his responses to real-world concerns lacking in two primary areas: the danger of false information and the problem of institutionalizing torture. Given the historical record of torture in the real world, Allhoff consistently undervalues the possibility that torture can (and often does) lead to not only un-productive information, but that it can also lead to counter-productive infor-mation. That is, there is not merely the concern that misinformation will come about from torture that does not aid in the effort to thwart an unjust threat—All-hoff consistently claims that such a downside would only result in the waste of resources. Rather, it is that misinformation obtained through torture actually puts further innocent people at risk of being unjustly harmed, as was discussed above. This cost, and particularly the fact that it cannot be known to those carrying out torture of what type the information they obtain is (productive, unproductive, or counter-productive), is a high moral cost indeed. This is the counter-productive epistemic problem for torture. Once this problem regarding the potential costs of misinformation is fully appreciated, it becomes a rather difficult hurdle to overcome, even on Allhoff’s utilitarian account.



So return to the modified “Hunter & Photographer” case where Mike is des-perately trying to feed a large group of people. It’s true that this helps Allhoff’s utilitarianism model overcome the problems pressed by moral epistemic con-textualism. My response, however, is that this modified version fails to capture the difficulty of the torture case, specifically the counter-productive epistemic problem for torture. To properly account for it, we would need to further modify “Hunter & Photographer.” Imagine if in addition to needing to feed the starving group, Mike was also aware that the group had only one source of water, which was provided by one person in the group (the only one who was capable of finding a fresh water source, say), and that Mike knew that this water-sourcing person was presently hiking in the woods looking for water. In such a case, while it’s true the need for killing a deer might lower Mike’s epistemic bar for permissible action to shoot, the possibility that it could be significantly counter-productive to their aims (by accidentally shooting the water-sourcer) easily outweighs that lowering, and, in fact, raises the bar significantly higher. The counter-productive risk is one that he cannot permissibly take. For example, Allhoff engages the excellent work of Darius Rejali, who chron-icles some of the countless ways torture can (and often does) go wrong and wind up being counter-productive toward the ends it was designed.72 In response to the high likelihood of misinformation, Allhoff writes:

The problem with Rejali’s argument is the baseline: it is bad that we might get misinformation, but that does not tell the whole story. Rather, it is better that we might be getting actionable intelligence than that we surely get no intelligence at all. There could be costs of bad intelligence, such as when we move our security forces to the wrong place, thus wasting resources.73

Allhoff makes two mistakes here. First, he assumes that the only way to get in-telligence at all is through the use of torture. This, despite the fact that we have an abundance of evidence suggesting that non-coercive methods are usually better at producing intelligence.74 Second, and more on point, he counts the only downside to obtaining bad information as merely a waste of resources. But, as shown, the downsides to bad information can be far greater; they can actually be counter-productive toward defensive efforts. After undervaluing the dangers of such misinformation, such costs then play out as would be expected in Allhoff’s utilitarian calculus:

But, even if we incorporate those risks [wasting resources] into our intelligence calculus, the options are wasting some resources and having a chance at saving lives or else not having a chance at saving those lives at all; the former could easily come out as superior to the latter.75

Again, Allhoff continues to press the false dichotomy that the only choice is be-tween torture with the risk of misinformation or no information at all, when there are clearly other choices. But, worse, because he claims that the only downside

of misinformation would be a waste of resources, he misses how devastating the likelihood of misinformation is for the permissibility of torture in practice. Also note that Allhoff misses the epistemic component that is tied to the possibility of bad information. Again, the counter-productive epistemic problem is not merely that we may (perhaps even likely) get bad information from torture. Rather, it’s that we cannot know if it is bad information until the moral costs from such bad information have been delivered, at least in part, and we cannot know fully what those costs will be until after the fact.76

I’ll also briefly note another problem with how Allhoff deals with uncertainty and torture. He takes care to consider cases with uncertainty built in. This is, of course, good. (He even goes so far as to conduct a survey gathering peoples’ intu-itions regarding various cases of torture to test how their intuitions shift with the introduction of uncertainty.) But when he considers uncertainty, he always does so in ways such that the uncertainty itself is known and explicit. (He’ll claim that in a given case it is known, for example, that the torture has a 1 percent chance of working.) Unfortunately, in the real world, we do not have the luxury of knowing just how bad our epistemic limitations are. We do not know, that is, exactly what percent chance we have of torture working, or that we have the right person, or that it will not produce counter-productive information, and so forth. Moreover, in his work, he usually isolates one source of uncertainty. But, in the real world, all of these epistemic limitations will occur simultaneously. Steinhoff will likely claim that throughout my essay I am attacking a straw man. It is an accusation he makes of all who criticize ticking time-bomb arguments by pointing to real-world limitations. Steinhoff writes, for example:

There are countless other critics of the ticking-bomb argument. They all re-peat the same themes over and over again, fiercely and relentlessly attacking a straw man. The result is little insight and much boredom. True, there might never have been a real ticking-bomb case, but that is not the issue. The issue is whether such a scenario, as actually advanced by its proponents is possible. Obviously, it is.77

But, in my view, Steinhoff’s endless assertions that such a scenario could possibly arise shed little light on the issue. This may be because Steinhoff’s engagement with many of the epistemic limitations facing defensive torture are primarily confined to his dealing with the work of Richard Matthews.78 Unfortunately, while I find sympathy for Matthews’ efforts, his objections against the ticking time-bomb case are at times muddled and weak. Matthews tends to overplay the difficulties that epistemic limitations create for the permissibility of torture in principle. In principle, of course, such limitations can be controlled for through the “idealizations” that Shue discusses. Thus, Steinhoff’s quick dismissal of such concerns, as they are elucidated by Matthews, is unsurprising. Although Stein-hoff is likely correct on his various points against Matthews as it relates to the



possibility of permissible defensive torture in principle, it would be better to see Steinhoff engage a strengthened version of these epistemic concerns. That is, not as direct rebuttals against the claim regarding torture’s permissibility in principle but, rather, against the plausibility of someone ever being in an epistemic position to have proper warrant to permissibly engage in torture in practice. For such warrant to obtain, all of the epistemic limitations I’ve discussed above would have to be overcome, and these seem endemic to interrogational torture in ways that they are not to standard forms of defensive harm. Steinhoff is correct that a case like “Terrorist” is possible and that, moreover, therein it is possible that the authorities could have a high (enough) degree of certainty that Terrorist is actually liable, the threat of the bomb is real and imminent, that that torture will result in Terrorist’s cooperating agency such that he gives good, reliable information with which to thwart the bomb, and that they know (with reasonable certainty) that he is giving good information and not giving, say, false informa-tion that would further risk even more innocent lives. All of that may well be possible. But simply insisting on this point endlessly results in “little insight and much boredom,” to use Steinhoff’s own words. Overcoming the real-world epistemic limitations for defensive interrogational torture discussed in this essay would be exceedingly difficult. But one way to attempt to do so would be to “institutionalize” torture. That is, to study its effects scientifically, to have professional torturers who are experts in applying it, perhaps have “torture schools,” and so forth. This kind of claim has been the source of many objections against the permissibility of torture in practice.79 Allhoff and Steinhoff both explicitly argue against institutionalizing torture. But, in so doing, I think they miss the full force of the epistemic angle this rejection brings with it. That is, such a position (rejecting the institutionalization of torture) runs directly against the hope of having reasonable epistemic warrant to commit defensive torture. This is because the more institutionalized torture is, for the reasons given above, the greater confidence one could have in the efficacy of torture. I’m not, of course, suggesting that torture should thereby be institutional-ized—far from it. I’m simply showing that the strong position taken against institutionalization of torture by these torture defenders runs contrary to their ability to claim that the epistemic constraints on permissible torture in the real world could plausibly be overcome. That is, the epistemic hurdles seem nearly intractable for torture cases in the real world, yet the kinds of things that would ameliorate them are precisely the kinds of things that many of these authors expressly do not want. Allhoff and Steinhoff both take time to deny that torture must necessarily lead to the institutionalization fear so often raised about torture. For example, Allhoff writes: “It is most certainly false that torturers have to be ‘real pros,’” and he goes on to deny that any of the other professional apparatuses of torture must necessarily come about, if it were ever to be used in a permissible instance.80

And perhaps Allhoff is right. I’m not here offering this objection anew. Rather, I’m showing that if he wishes to deny this—the professionalization of torture objection—then it makes the epistemic burdens I am pointing to above, in cases of real-world torture scenarios, just that much harder to overcome. Steinhoff is at pains to make clear that he finds torture to be only permissible in exceedingly rare cases.81 But ever overcoming the epistemic limitations I’ve discussed, which are unique to defensive torture as separate from standard defen-sive harm, will be incredibly difficult in practice. One way they could realistically be overcome would be to set the epistemic bar for permissible action for all cases of defensive harm quite low. The trouble is, if we set the bar low enough to re-alistically overcome the epistemic hurdles present in the torture case, the result will be that far more torture than is normatively plausible becomes permissible. We saw this as a rampant problem for a view like Kerhsnar’s, which admits of no epistemic constraint. But the same problem will arise more generally for the likes of Steinhoff, even with a rather low epistemic constraint on defensive tor-ture. The reason this is so problematic for Steinhoff’s view is precisely because he wants to maintain that torture would only ever be permissible very rarely, in extreme circumstances allowed for by his form of threshold deontology. In other words, to make it the case that torture could ever be justified in actual practice in the real world (that the epistemic burden for permissible action will actually be met) will end up making it the case that it is often justified—which is precisely what Steinhoff denies.82

Recall the general point of this essay is not that these authors’ arguments fail to show that defensive interrogational torture could ever be permissible, in principle. Engaging that claim is a far bigger project. Rather, my claim here is more modest: that the epistemic difficulties one would have to overcome in order to permissibly engage in it will, in practice, be far greater than the epistemic difficulties that arise in standard defensive harm cases. It is not merely that the epistemic investigative duties are more difficult to meet in the torture case over the standard defensive harm case; it is that the duties are more numerous and different in kind. Further, I’ve tried to show that these differences are endemic to interrogational torture because of the ways in which it is fundamentally different as a form of defensive harm compared to standard forms of defensive harm. (One example of this is the counter-productive epistemic problem for torture.) This means that, granting moral epistemic contextualism, torture will have far greater epistemic burdens to overcome for permissible action. Yet, because these authors hold torture to be a lesser harm than killing, it will on their view to have the counter-intuitive result of actually having a lower epistemic bar to meet. Finally, if one tries to lower the epistemic bar needed for permissible action in order to meet these epistemic challenges in the real world, this has the insidious effect of sanctioning far more torture than most of these authors would find acceptable. Nothing I’ve discussed here provides a definitive argument against the likes of Kamm, Allhoff, Steinhoff,



and Kershnar; but these considerations do count in favor of an absolute prohibi-tion against torture in practice. This suggests that more work needs to be done by torture’s defenders to show just how the epistemic constraints unique to torture as a form of defensive harm could be confidently overcome in any place other than the fanciful world of philosophical thought experiments.

Naval Postgraduate School

NOTES

1. Kamm, Ethics for Enemies; Allhoff, Terrorism, Ticking Time-Bombs, and Torture; Steinhoff, Ethics of Torture; Kershnar, For Torture.

2. Report of the Constitution Project’s Task Force.

3. Riechmann, “Bush: ‘We do not torture’”; Report of the Constitution Project’s Task Force.

4. The Bush administration, for example, has long maintained that it only “water-boarded” three al-Qaeda prisoners; this report shows that claim is false. See Shane, “U.S. Engaged in Torture.”

5. Report of the Constitution Project’s Task Force, 244; Shane, “U.S. Engaged in Torture.”

6. Report of the Constitution Project’s Task Force, “The Danger of False Confes-sions,” 275.

7. Statman, “Absoluteness of the Prohibition,” 161, quoted in Gross, Moral Dilem-mas, 146.

8. Allhoff is the only author of the four discussed in the essay who does not hold a rights-based account for the permissibility of torture; Allhoff gives a utilitarian account. Still, as I show below, his model broadly accords with torture for the purpose of defending innocents from harm.

9. Allhoff, Terrorism, Ticking Time-Bombs, and Torture, dust jacket.

10. Brecher, Torture and the Ticking Time-Bomb; Matthews, Absolute Violation.

11. Jeff McMahan is perhaps the most notable proponent of this view, and I quote him here. McMahan, “Torture in Principle,” 111. Most moral philosophers writing on the topic, it seems, have given up the “never, even in principle” stance, and instead hope to argue against the use of torture as never permissible in practice. Hence, the predomi-nant position now (if there even is one any longer) seems to be to argue that we have an absolute moral prohibition on torture in practice, even if not in principle. As I understand their views, further examples of this position (with various different takes on it) include the likes of David Rodin, Henry Shue, and Daniel Statman, amongst others.

12. See Brecher, “The ‘Ticking Bomb.” Brecher’s basis for the admonition is because, in his view, granting that torture could ever be permissible, even if only in principle in

exceedingly rare cases, already gives up the game since (he thinks) this admission would lead to its rampant abuse by unsavory political leaders. As he writes:

How is it possible for a serious thinker, which McMahan certainly is, to make the sub-stantive claim he does here, namely that although torture is (in his view) morally justifiable, the fact that it is justifiable “is virtually irrelevant in practice”? McMahan thinks that the circumstances in which it really is morally justifiable will be very rare. But that’s not the point. Even if such cases were extremely rare, they wouldn’t remain rare, as the slightest acquaintance with the history of torture makes clear. Torture’s being even rarely morally justifiable would be all too relevant, not least to the politicians who want it used

13. Steinhoff, On the Ethics of Torture, 139. Here Steinhoff is responding to the claims of David Luban in “Unthinking the Ticking Bomb.” Given Steinhoff’s usual style, however, he should perhaps be the last to complain about overly sharp rhetoric. In this case, he gives as good as he gets, questioning whether Luban’s defense of just war theory would thereby make him a “friend of killing and mutilation.” To Steinhoff’s credit, he does stress that he does not “object to his sharp tone and rhetoric” (140) but rather what he takes to be the use of rhetoric in place of a clear argument.

14. While Kamm stresses that her conceptual work does “bear on how these [real-world] actions should be evaluated,” she makes it clear that her discussion of torture “does not attempt to deal with these [real-world cases] in particular, as this would require detailed empirical information.” Kamm, Ethics for Enemies, 5.

15. Allhoff, to his credit and perhaps more than any other defender of torture’s per-missibility, gives a great deal of attention to the empirical “in practice” questions, and he recognizes the important relation such issues have to the “in principle” questions. I still think, ultimately, that he too suffers from this problem, as I will discuss below.

16. Or, on some versions of the view, a right to not be harmed, period; a right that people can then forfeit.

17. It is controversial just what is required for one to be responsible for an unjust threat of harm. On some views, it is enough if the threat merely emanates from one’s body. On other views, the person must be morally responsible for the threat in order to become liable to defensive harm.

18. These arguments are made explicitly against the view of David Sussman. In Suss-man’s view, torture “bears an especially high burden of justification, greater in degree and different in kind from even that of killing.” The four authors discussed here all reject such an intuition regarding the particular or special badness of torture over other kinds of harm. Although my intuitions are generally with Sussman, I will not defend the point against these authors here. See Sussman, “What’s Wrong with Torture?”

19. As the authors make clear, such defensive torture would fall under the same con-straints of proportionality and necessity that other forms of defensive harm fall under.

20. Yoo, “Memorandum.”

21. The person is not wronged because that person is liable to such defensive harm to block the threat for which she is responsible.

22. Steinhoff, On the Ethics of Torture, 53.



23. See Allhoff, Terrorism, Ticking Time-Bombs, and Torture, 186.

24. This difference between the views of these authors—the requirement that the target of torture be liable—will be crucial for the considerations I offer below.

25. Allhoff, Terrorism, Ticking Time-Bombs, and Torture, 119.

26. Ibid., 119; emphasis in original.

27. Of course, Kamm, Steinhoff, and Kershnar all find that the terrorist in such a case—since he is liable—would not have his rights infringed by defensive harm at all; that is, he would not be wronged.

28. I am, admittedly, over-simplifying Allhoff’s view a bit. He offers a good discus-sion and criticisms of the defensive-type reasoning used by John Yoo, for example. See Allhoff, Terrorism, Ticking Time-Bombs, and Torture, 186–87.

29. Note, the majority of my discussion in this section on moral epistemic contextual-ism is drawn from chapter 2 of Strawser, Bounds of Defense. Both there and here, I draw heavily on the work of Alexander Guerrero, as cited.

30. Clifford, “Ethics of Belief.”

31. See Guerrero, “Don’t Know, Don’t Kill.”

32. Such as, most prominently, Keith DeRose. See DeRose, Case for Contextualism; “Contextualism and Knowledge Attributions”; and “Assertion, Knowledge and Context.” For a good primer on the vast topic, see Rysiew, “Epistemic Contextualism.”

33. I am again indebted to Guerrero, “Don’t Know, Don’t Kill,” (particularly at 68) for applying his version of epistemic contextualism to moral cases, particularly to cases of harm and defensive harm. I lean on his work for the remainder of this discussion, as noted.

34. Guerrero, “Don’t Know, Don’t Kill,” 68. To my knowledge, Guerrero offers the most complete discussion of moral epistemic contextualism.

35. Ibid.

36. Ibid., 69. Guerrero notes that we may think the stakes move along another axis as well: “We might also think that what is at stake, morally, in believing p actually alters when one is justified in believing p, but I am primarily concerned just with the question of when one is justified in acting as if one is justified in believing p.” Ibid.

37. It must be imagined for this case to work that we still live in the long ago era where actual film was required for photography. This case is my own, but Guerrero gives a different helpful case of two different people inspecting a house—one for the purpose of demolition and the other for the purpose of census taking.

38. As Guerrero explains of such distinctions in these kinds of cases: “The obligations regarding epistemic investigation go up, precisely because of what is at stake, morally.” “Don’t Know, Don’t Kill,” 68.

39. Ibid., 69. Another important point is where the locus of contextualism falls. It is not on the belief itself, per se, but on when it is morally permissible for the individual holding the belief to act as if he or she is justified in the belief in order to act on it. As Guerrero explains: “Importantly, it is contextualism not about when it is true to say that

some individual S knows or is justified in believing something or not, or whether that individual can justifiably assert p, but rather when it is morally appropriate for S to act as if S possesses justified true belief or certainty with regard to some issue.” Ibid., 69.

40. There is, of course, a great deal more to say on this score, but it exceeds the scope of this essay. I am particularly interested in how moral epistemic contextualism helps us understand liability attribution for defensive harm. See Strawser, “Defense of Evidence-Relative Liability Attribution,” unpublished paper.

41. With one exception: Kershnar explicitly bites the bullet on this point, admitting that his view may commit him to deeming torture permissible in a surprisingly wide number of cases. I’ll discuss why this is so, below.

42. As noted above, however, my intuitions on the matter tend to follow David Suss-man’s, though I will not contest the point here. Sussman argues that torture has a distinctive feature of wrongness that makes us hesitate (rightly) in considering to commit defensive torture in ways we do not for other forms of defensive harm. All four authors discussed in this essay engage Sussman on this point and disagree with his conclusions. See Sussman, “What’s Wrong with Torture?”

43. Steinhoff, and presumably some of the other authors, do not find it surprising at all, of course. Allhoff, however, being a utilitarian, grants that torture is a moral bad to be avoided. Perhaps surprisingly, this gives him more latitude to only justifying torture when the countervailing stakes are particularly high (that is, when a large number of people are threatened) than the rights-based theorists have. As such, Allhoff perhaps has room within his account to avoid this conclusion and to conclude, rather, that the epistemic burdens are greater for the decision to torture.

44. See Otsuka, “Killing the Innocent.” The case runs roughly as follows: Guest extends his hand to shake the hand of foreign Dignitary at a reception. Unbeknown to Guest, a third party projects a stunningly realistic holographic image of a pistol onto Guest’s hand. Dignitary, who is accustomed to threats on her life, sees the hologram, forms the justified belief that Guest is about to assassinate her, and coolly draws a pistol in order to shoot Guest down in self-defense. In such a case, Dignitary has mistakenly taken Guest to be liable to defensive harm when, in fact, he is not. (See Otsuka, “Killing the Innocent,” 91.)

45. I am not here making a claim on how strict, exactly, that bar of “reasonably sure” is before one can permissibly act. That’s a much longer conversation. But, at a minimum, such a bar will include something like: one must think one is genuinely being unjustly threatened and that the person against whom one will initiate defensive is properly liable. I am here setting aside larger debates over liability attribution itself.

46. As a variety of recent research has shown, it turns out that false confessions are actually surprisingly common. See Rejali, Torture and Democracy.

47. I say “nearly invicible” only because of the possibility of fantastic thought ex-periment cases like Otsuka’s “Dignitary & Guest” obtaining in the real world. There are certainly other cases of doubt over the threat’s existences itself in standard defensive harm cases that can (and do) obtain in the real world, but they are few and far between and on a different epistemic level of doubt than in the torture cases.

48. This will be true across such cases, even non-ticking time-bomb cases. Steinhoff, for example, gives the very powerful example of a person who has kidnapped a young



child and locked him in a wooden box. The police have captured the man, and the child will starve to death and die a painful death if they do not discover the box’s location. In this case, just like the ticking time-bomb case, the same doubts just discussed (the exis-tence of the threat itself, the correct identity of the liable person) obtain in ways that they would not in standard defensive killing cases. That difference in the kind of doubt that obtains across such cases is what I am focusing on here.

49. This is why, importantly, the constraints of necessity and proportionality limit defensive harm to that act that we can be reasonably sure will block the unjust threat. Hence, in some cases, some lesser defensive harm, such as tackling an unjust attacker, or using a taser gun on him, and so forth, will be the permissible action, rather than killing.

50. For some empirical data on just how significant of a problem this is for inter-rogational torture, see Fein, “Intelligence Interviewing.” Also see Rejali, Torture and Democracy.

51. Moreover, if one holds that the difference between killing and letting die is morally relevant, this can add further reason for Bystander to refrain from shooting due to moral risk aversion.

52. See Fein, “Intelligence Interviewing”; and Rejali, Torture and Democracy. Also see Biderman, “Communist Attempts to Elicit False Confessions.”

53. False information obtained via torture under the Bush administration in the im-mediate aftermath of September 11, for example, was used to (falsely) connect Saddam Hussein to al-Qaida, and thereby support the case for the United States to invade Iraq. Needless to say, the unjust war in Iraq resulted in countless harms to innocents. See note 54 below.

54. For one historical example, consider the Battle of Algiers in the Algerian War. In this brutal battle, the French army used torture on captured enemies. Torture had a long history of use from the beginning of colonization of Algeria in 1830. But throughout the Algerian War, and particularly throughout the Battle of Algiers, its use was widespread. What this torture led to was not, as was later admitted by the French government, the acquisition of information that led to the blocking of terrorist threats. Rather, the tortured individuals regularly accused (falsely) their enemies or other people against whom they held a grudge of various threats, upon which the French army would then act, often leading to the killing (or capture and further torture of) countless innocent people. See Lazreq, Torture and the Twilight of Empire. Also see Branche, Torture and the Army [in French].

55. As noted above, the most recent example of this kind of massive counter-productive harm coming about from supposedly defensive torture is found in the US case for war in Iraq. Of particular poignancy is the case of Ibn al-Shaykh al-Libi, who expressly lied about a supposed connection between Iraq and al-Qaida under torture. This “evidence” was then used by Secretary of State Colin Powell before the United Nations in making the case for an unjust war. See Jehl, “Qaeda-Iraq Link.” Also see Isikoff and Hosenball, “Al-Libi’s Tall Tales.” Also see Finn, “Detainee Who Gave False Iraq Data.”

56. This is, again, presuming (as we are) that some reasonable level of epistemic war-rant must be met before one can permissibly commit an act with high moral significance and risk, when the potential negative outcomes are so grave (e.g., when the risk is that one might kill a person compared to simply wasting film, as in “Hunter & Photographer”).

57. Kamm, Ethics for Enemies, 7.

58. I will not here argue over whether such cases should properly even be considered torture or simply an odd version of defensive harm since the aim is merely incapacitation. But this could be one line of response, depending on how torture is defined.

59. Kamm, Ethics for Enemies, 13. One of my points above was to focus on the shift in epistemic limitations that occurs from the first case, when harm is delivered purely for the purpose of incapacitation, and the later cases, where torture is used to gain cooperation. As discussed, the later case brings with it a host of further epistemic difficulties that do not exist in the first. It is far easier to confidently predict that a given action will incapaci-tate someone than it is to predict that a given action will lead to someone’s “cooperating agency,” and, moreover, cooperate in such a way that is not actually counterproductive to the aim of the defensive act in the first place.

60. Kamm, Ethics for Enemies, 29. She references McMahan, “Torture in Principle,” who makes a similar point.

61. Kamm, Ethics for Enemies, 47.

62. Very early in the book, Kamm seems to recognize this by ruling out even discussing cases of torture that are “most likely to be morally wrong.” In that set she includes cases where torture is “done to people not known to be wrongdoers,” and when torture is “done when there is no certain and imminent murderous threat to stop” (Ethics for Enemies, 5). Of course, these kinds of cases, as the report on torture discussed above (Report of the Constitution Project’s Task Force) are in fact the most common uses of torture in recent real-world cases. They are also the most common historical uses of torture. And, as I demonstrated above in § 3, doubt as to the liability of the target of torture and doubt as to the unjust threat itself will nearly always arise in defensive interrogational torture for the purpose of cooperation in ways that it will not for standard defensive harm.

63. See Kershnar, For Torture, 52–53.

64. Ibid., 53.

65. Ibid.

66. There is an interesting debate over whether or not desert should be internal to the notion of liability or not. See Gardner and Tanguay-Renaud, “Desert and Avoidability.”

67. In personal correspondence with Kershnar, he bites the bullet on this point. He writes: “I think you are correct in that I am committed to torture in many cases that appear defensive but are not the most effective due to forfeiture.” He admits that “this sounds incorrect,” but defends it as a necessary result of forfeiture theory, to which he is com-mitted

68. Kershnar writes: “[T]he assertion that torture must work, is known to work, and so on is not true. Given the considerable moral leeway for defensive violence against an unjust attacker, it is hard to see why torture done to defuse an attack is wrong.” Kershnar, For Torture, 63.But one reason there will routinely be great moral leeway for standard cases of defensive harm is precisely because there will be less epistemic doubt regarding the attacker’s liability itself. But, again, this is not true for the vast majority of defensive torture cases. Rather, endemic to such cases is doubt concerning the target’s liability.

69. Shue, “Torture in Dreamland,” 231.




71. Thanks to an anonymous reviewer for discussion on this point.

72. See Rejali, Torture and Democracy.

73. Allhoff, Terrorism, Ticking Time-Bombs, and Torture, 144; emphasis added.

74. See, again, Fein, “Intelligence Interviewing.” Also see Toliver, Interrogator.

75. Allhoff, Terrorism, Ticking Time-Bombs, and Torture, 144–45.

76. Again, as noted above, recall how false information obtained via torture about the supposed connection between Saddam Hussein and al-Qaida was used in the fallacious case for the US war in Iraq. It was not clear that this was bad information until well after the war was already underway.

77. Steinhoff, On the Ethics of Torture, 147.

78. See Matthews, Absolute Violation.

79. Indeed, it is perhaps the most common objection to the permissibility of torture in practice. McMahan makes this case, in various ways, in “Torture in Principle and in Prac-tice.” After drawing on the long history of abuse of torture by governments and exploring the dangers of its institutionalization, McMahan concludes that“[a]ny legal permission to use torture, however restricted, would make it easier for governments to use torture, and would therefore have terrible effects overall, including more extensive violations of fundamental human rights. The legal prohibition of torture must therefore be absolute.” McMahan, “Torture in Principle and in Practice,” 125.


81. As he writes, “nearly all torture currently being undertaken on our planet is immoral. There are very few cases of defensive torture or torture justified in light of a justifying emergency.” Steinhoff, On the Ethics of Torture, 157; emphasis in original.

82. Interestingly, the line of argumentation I am attempting to employ here as a general problem against these accounts of defensive torture has been used against a more general view of defensive harm, particularly as it pertains to war. Seth Lazar made this kind of argument against McMahan’s rejection of the moral equality of combatants thesis as he describes liability to be killed in war. (See McMahan, Killing in War.) Lazar presses his argument against McMahan in “The Responsibility Dilemma.” I attempted to defend the revisionist view against this argument and show that I think it fails to obtain for such rights-based accounts of killing in war in “Walking the Tightrope” (Strawser, “Walking the Tightrope”). Some might object to my argument here, then, simply for consistency’s sake. In the torture case, however, precisely because the epistemic constraints on permis-sible action for defensive torture are radically more difficult to overcome (and different in kind), I think this kind of general argument form holds. That is, if one sets the epistemic bar low enough to overcome these problems for torture, then it will be the case that torture will end up being regularly justified in far more cases than is morally plausible. This need not be the case, however, for liability-based defensive killing, even in war, as I explain in that article.

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Defensive Interrogational Torture and Epistemic Limitations

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