Wednesday, April 12, 2006

Lippardian philippics

As I was going back through the archive I noticed that Jim Lippard did get around to responding to my remarks.

He makes a number of intelligent comments, so his response merits a reply. Here, then, is my own belated reply.

“I'm not assuming that--clearly, any absolute moral principle is going to involve sets of circumstances simply in order for it to applicable at all. Principles about killing are applicable to situations in which killing occurs. Likewise, I think everybody agrees that consequences matter--but for the deontologist, bad consequences are never sufficient to override fundamental rights.”


“But let's go to the specifics of what I was commenting on--particular Christian arguments in the comments of Ed Brayton's blog that slavery was a justifiable, moral institution in some historical circumstances. Do you buy that? If so, then you must not believe in an inalienable human right of self-ownership (or, an alternate formulation for Christians who believe God owns human beings, an inalienable right not to be owned by other human beings).”

i) I’ve not read Brayton’s argument, so my own comments will be irrespective of his argument.

ii) As a Christian I’m naturally committed to Biblical ethics.

iii) I don’t have much use for the Enlightenment paradigm of natural rights or human rights, although this linguistic usage is so entrenched that it’s sometimes easier for me to accommodate to that conventional framework.

But speaking for myself, I see nothing of value in the conceptual scheme of natural/human rights that cannot be better preserved by simply speaking of the right or wrong way to treat people.

This is more fundamental. For unless it’s wrong to deny someone his rights, how have you wronged him by denying him his rights? So it’s more to the point to speak in terms of right or wrong conduct.

This has another advantages as well, such as avoiding the connotations of humanistic autonomy involved with making an individual a locus of rights.

Moreover, it avoids the reductio ad absurdum of saying that someone has the right to do wrong.

iv) Whether slavery is ever a morally justifiable institution depends, in part, on the definition of slavery, as well as the available alternatives.

One form of OT slavery was indentured service for debtors. A debtor would make restitution by becoming an indentured servant for seven years.

I see nothing morally objectionable in this practice. Indeed, it’s a great improvement over our current system.

Another form of vassalage was the enslavement of POWs. This was admittedly harsh, but less harsh than the customary alternative of executing all war captives.

The problem with repatriating POWs is that they might well live to fight you another day.

So I regard this form of slavery as a necessary evil given the practical options at that time and place.

v) Americans naturally associate slavery with the Southern institution, which was raced-based and originally involved kidnapping (a capital offense in Scripture).

For this there is no moral warrant.

vi) As a rule, slavery is wrong. I’d give a couple of reasons:

a) To the extent that a slave master is free to do whatever he pleases with his chattel, the potentiality and reality of abuse is considerable.

b) It keeps adults in the perpetual status of an underage minor. This is wrong, for adults have adult responsibilities.

“At some point, if you water down an absolute principle enough by adding additional qualifications (particularly qualifications that themselves don't seem to have any moral relevance, such as a time index), it becomes indistinguishable from a purely relativistic one.”

True, but it also depends on whether the qualifications are merely ad hoc, or if they are intrinsic elements of any well-rounded ethical system.

“i. I'm happy with the Amnesty International definition here:”

I believe that this is the definition Lippard is alluding to:

“We usually use the term "torture" to refer to the deliberate infliction of severe pain or suffering by state agents, or similar acts by private individuals for which the state bears responsibility through consent, acquiescence or inaction. We also use the term "torture" to refer to deliberate pain or suffering inflicted by members of armed political groups.”

Lippard gets credit for defining his terms.

Contrary to Lippard, I am not happy with such a blanket definition. It allows an interrogator no flexibility or discretion in extracting actionable intel, without which effective counterterrorism is impossible.

What we mean by severe physical pain is fairly obvious. “Suffering” far less obvious, especially in the case of psychological trauma.

For example, does this definition rule out sleep deprivation?

“ii. My position is not a muddle and it does make sense. You should read up a little more on the law, specifically on defenses of justification and excuse, and on the necessity defense. If you think all exceptions can be codified, you don't understand the law or the function of the judiciary.”

This is not a question of codifying every conceivable exception. To the contrary, Lippard takes the position that “torture” should be banned across the board. No exceptions whatsoever.

If he had his way, the interrogator and his superiors would assume all legal liability. They would be vulnerable to indictment for violating such a broad, unqualified law.

Sure, they could attempt to defend themselves in a court of law or military tribunal after having been indicted.

Once again, that’s no way to conduct counterterrorism. Can secular ethics address a real world threat? Or is it a bunch of man-made rules that disarm us and leave us utterly defenseless against an unscrupulous enemy?

I continue to reject the way the whole issue has been framed. The point is not to ban torture, but allow informal exceptions.

Rather, the point is to discuss what is necessary to extract intel from an unwilling informant. What techniques are most effective? How do these techniques range along a spectrum of pain and suffering?

The exceptions to codify would not be exceptions to torture, but exceptions from the more inhumane and ineffectual forms of coercive interrogation.

“iii. I think taking a fuzzy position on this subject is very likely to lead to abuse.”

i)Depends on what you mean by “fuzzy.” You yourself said that every contingency cannot be written into law. Some flexibility is necessary to get the job done.

ii)What is actually right trumps what is potentially wrong.

iii)Moreover, “abuse” is not necessarily the worse case scenario. This admittedly legitimate concern must be balanced against other equally legitimate concerns.

Suppose a terrorist knew about a plot to fly a jumbo jet into a crowded sports stadium? Or poison the water supply?

Also, we’re not talking pure hypotheticals, here. We’ve recovered Al-Qaeda training manuals and hard-drives. We, and especially the intelligence community, have a pretty firm idea of what the jihadis would like to do to us if given the chance.

Both sides in this debate can come up with horror stories and worst-case scenarios. We still need to prioritize.

“Since you offer a "ticking time bomb" justification for torture, you should be able to conceive of similar situations where murder is necessary for the resolution. The difference between you and I is that you think this really provides a justification and the course of action is right, while I think the course of action is still wrong and deserves punishment, even if it's the best (or only) way to prevent some worse consequence from occurring.”

i) Not all homicide is murder. There’s such a thing as justifiable homicide. That’s what the rules of engagement are all about, as a matter of law.

ii) My position is not limited to the ticking time bomb scenario. It is, rather, the more general proposition that we should be able to extract intel from declared enemies of the United States who would do us harm—harm on a massive scale.

iii) To say that a given course of action is wrong and deserving of punishment even though it is the best or only way to prevent some worse consequence from occurring is morally incoherent and a classic example of an ethical system which is impotent to address a real world threat.

You end up punishing the very people who, through their action, prevented a worse consequence. They’re rewarded for saving our lives and our livelihood by…what? Imprisonment?

iv) I continue to reject the framework of “torture” as the controlling paradigm.

“ii. I think the function of law is a bit broader than that, but if you add the proviso that everyone is presumed innocent until proven guilty, I think I can agree with your statements.”

The presumption of innocence is applicable in cases of criminal prosecution, when the objective is to ascertain guilt or innocence and mete out a suitable sentence.

It is not relevant in counterintelligence, when the objective is not to establish whether the informant broke the law, but to extract actionable intel to prevent a future atrocity.

A trial is about a past event (was a crime committed?) while counterintelligence or counterterrorism is about preventing a future event (a plot to massacre the innocent).

“iii. If you're going to advocate originalism, I think you can do that in a reasonable way, but not with originalism of intent. You can't measure original intent except in a very indirect and unreliable way; original meaning is more feasible.”

“Original intent” is a term of art. It doesn’t mean divining the mind of the Framers.

Rather, based on such considerations as what laws were on the books when the Constitution was ratified, as well as the minutes of the Constitutional Convention, as well as the conduct of the Founders when some of them held office, we can block out what the Constitution allows or disallowed in many cases.

“iv-v. I disagree with your interpretation; I think it's best to adhere to these conventions even if one's enemy doesn't, on the basis of respect for basic human rights.”

i)This is not about human rights. This is about the laws of warfare.

To treat a detainee humanly, and to treat him as a POW who can respond to an interrogator by giving name, rank, and serial number, are two very different things.

One side assumes a heightened risk in its methods of detention under the assumption that the other side will assume the same risk, for the benefit of each side’s respective POWs.

If, however, one side does not uphold its end of the bargain, then it would be irrational for the other side to continue to assume a heightened risk. Once you withdraw the original rationale for a certain code of conduct, there is no reason to continue with business as usual.

ii)What is more, unilateral enforcement is a disincentive for anyone to honor the laws of war. For if those who violate the laws of war are rewarded with equal treatment, they obviously have no incentive to do otherwise.

“ii. It takes an extreme case to make anything like a reasonable argument for justifying torture. There are no borderline cases in the middle.”

i)You continue to cling to this simplistic and tendentious characterization of the issue, as if all forms of coercive interrogation constitute “torture,” not to mention a sweeping definition of torture which makes no distinction between physical and mental distress or duress.

ii)It doesn’t take an extreme case to justify coercive interrogation. All it takes is a credible threat of murder and mayhem if our enemies get the upper hand in this conflict.

iii)And there are plenty of borderline cases between, say, sleep deprivation and mutilation.

“i. The checks on the judiciary are that the executive appoints the judiciary with the advice and consent of the legislative, and the legislative authors and the executive signs into effect the laws they interpret. What further check do you think there should be?”

It matters not what laws Congress can pass and the executive can sign if the judiciary can invoke the unconstitutional right to strike down laws that are passed by the voters duly elected representatives.

“ii. I agree with your first sentence, but I believe the actual effects of the Yoo/Gonzales positions have been demonstrably immoral.”

What are you alluding to? Abu Graib? GITMO?

“In answer to your question, I tend to lean towards a rule utilitarian position, with basic values being evolutionary (biologically and socially) in origin (cf., Axelrod on evolution of cooperation), though I'm not entirely decided about what's the best meta-ethical framework. I have Erik Wielenberg's Value and Virtue in a Godless World on my to-read list, as I've heard that it is quite good.”

I don’t see how your utilitarianism is consistent with your position that “torture” is always wrong and deserving of punishment.

“In my opinion, most ethical and epistemological issues can be productively debated even without agreement on metaphysics, because there is often common ground on enough of the relevant basic facts and principles regardless of their source.”

That depends on how consistent an ethicist is with his worldview.

A self-conscious secularist may be amoral because his worldview is unable to ground or generate moral absolutes.


  1. Just a few quick answers and clarifications (numbers don't correspond to yours):

    1. I grant a distinction between indentured servitude and slavery (and between types of indentured servitude such as convict labor or a contracted term of mandatory employment that doesn't give the employer property rights in the employed, just in the product of the employed's labor).

    2. I was referring to both Abu Ghraib and Guantanamo Bay abuses (the former included physical beatings and killings, the latter included denial of medical treatment and resulting loss of body parts of individuals who were later released for lack of evidence of wrongdoing).

    3. I disagree that extreme physical interrogation techniques are a necessary condition for counterterrorism to be at all effective; the evidence is that 9/11 could have been averted had intelligence leads in hand been properly investigated (see Gerald Posner, _Why America Slept_ for some particularly egregious examples).

    4. There are different forms of originalism in constitutional interpretation, of which original intent is but one (and the least plausible, IMHO).

    5. "It matters not what laws Congress can pass and the executive can sign if the judiciary can invoke the unconstitutional right to strike down laws that are passed by the voters duly elected representatives." Your view is inconsistent with the original meaning of the Constitution's description of "judicial power" in Article III, which included the power of nullification of law, as demonstrated by the arguments and statements in the Constitutional Convention (specifically by Roger Sherman, James Madison, Gouverneur Morris, Luther Martin, George Mason, and James Madison). The arguments in the Convention for rejecting a proposed council of revision (a separate body composed of representatives from the executive and judiciary to revise laws) were primarily that this council's power was redundant with the powers already in the judiciary.

    John Mercer was the sole voice in the Constitutional Convention who "disapproved of the Doctrine that the Judges as expositors of the Constitution should have authority to declare a law void."

    See pp. 132-142 of Randy Barnett's _Restoring the Lost Constitution_ for quotes and citations supporting the judicial power of nullifying unconstitutional laws.

    5. "I don’t see how your utilitarianism is consistent with your position that “torture” is always wrong and deserving of punishment." I think you missed the significance of the "rule" modifier on the front--rule utilitarianism is a view that is distinguished from "act utilitarianism"--the former judges sets of rules based on their consequences while the latter judges individual acts based on their consequences. BTW, while I lean in that direction I'm sufficiently agnostic on meta-ethics that I wouldn't call myself a utilitarian. I do lean towards consequentialism over deontologism, I see merit in both, and it appears to me that a rule utilitarian view allows for justification of rights in terms of consequences.

    From what you say, it sounds to me like your view may be a form of virtue ethics. I don't think I agree that talk of rights easily reduces to or is eliminated by evaluation of agents and actions; empirical evidence suggests that using rights as a framework for moral and legal evaluation is indispensable (or at least seem to function as "Schelling points"--see David Friedman's justification of property rights:

    Certainly the logical structure of rights has been worked out (e.g., by Wesley Hohfeld in the legal context and Carl Wellman in the moral) in a very elegant and useful manner.

  2. 1. With regard to judicial review, here are some online resources which give the other side of the argument:

    2. I have not taken a position on what interrogation techniques are necessary.

    Rather, my position is that we should start with that question, however we answer it, rather than framing the debate in terms of "torture."

    3.I don't see the relevance of "empirical evidence" in choosing a theory of value, which is a metaethical question, and not an empirical question. Given a theory of value, empirical evidence may be relevant in its application, but not in the choice of a ethical system, per se.