Wednesday, April 09, 2008

Torture and Walzer's Sliding Scale

So here's a thought that occurred to me recently. Chapter sixteen of Michael Walzer's excellent Just and Unjust Wars offers the argument that violations of just conduct in war (jus in bello) have been justified in some historical circumstances where the moral emergency of losing was sufficiently great.

His first example of this is the bombing of Dresden. In this case, because the threat of Nazism's victory constituted a supreme moral catastrophe, and because the British seemed genuinely in danger of losing the war at that moment, the British bomber command was justified in destroying Dresden in spite of the fact that the attack's intent was to terrorize the civilian population and restore British war morale. Walzer suggests that this justification is not absolute, but that there is a "sliding scale" that can justify normally prohibited actions (bombing civilians) when the moral emergency represented by losing the war is sufficiently high.

Walzer's contrast case is Hiroshima. At that point in the war, Japan's navy was essentially non-existent and her ground forces had been beaten back to their home islands. Walzer argues that dropping an atomic bomb on Hiroshima was not justified in the way that bombing Dresden was because America was in no danger of losing the war at that moment. (I realize that there are lots of reasons why we dropped atomic weapons on Hiroshima, and I think the most compelling ones are utilitarian arguments based on casualties to the Japanese had we invaded their mainland. However, I wish to bracket these other reasons, and for the purposes of this essay assume that civilian non-combatant immunity is sufficient to overrule them.) Walzer claims that we owed the Japanese an experiment in diplomacy given our position in the war in 1945, and that dropping the bomb was not the right thing to do.

Now we come to an interesting question. Suppose that Walzer's right. If the test case is not bombing civilians in wartime, but torturing terrorists who know the location of a weapon of mass destruction, can Walzer's sliding scale be used to justify such actions? Both are thought to be violations of jus in bello, and I can imagine cases in which there might be imminent threat and supreme moral emergency. Suppose that we knew there was a nuclear device disguised as a vending machine somewhere in Washington D.C., and that we had a man in custody who knew its location. If the weapon goes off, then all at once we lose the White House, the Congress, the Supreme Court, the Library of Congress, and the Smithsonian Institute, effectively decapitating our country. (This is not an exhaustive list of what would be lost, and we might have the upside of losing a few special interest lobbies, but let this case stand as a sufficient example of moral emergency.) In this case, can we make the claim from this Walzerian argument that torturing the prisoner is morally justified?

I can think of at least two objections. The first is that this is a veiled utilitarian argument, and so just losing the lives of a few people would be enough for Walzer's argument, but not enough for our intuitions about torture. Against this charge, I suggest that the aggregate value of life is problematic to policy-making mainly because to the extent that it's an absolute value, it can stall any policy making that has that value on each side of the equation, and simply aggregating that value can justify policies of majority tyranny that we historically reject. In other words, one need not be utilitarian to take the view that it may be the right thing to do to perform a little evil to prevent a lot of evil.

The second objection is that we might reject the reasoning in the last objection and take a strong Kantian line: we say that the value of life is absolute, and that moral responsibility for the chaos that ensues following the destruction of our government in the above example attaches exclusively to those who perpetrated the act. We should not engage in further wrongdoing. Against this objection I suggest that the objection seems less intuitively plausible the greater the degree of moral emergency one stacks on the other side. One's imagination can run wild here, but I won't turn this post into a Stephen King story; I simply reject the intuition as an intuition when the moral stakes are high enough.

So what say you all? Shall we torture to prevent moral catastrophe?