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

Published online by Cambridge University Press:  25 March 2011

Whitley Kaufman
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Abstract

The notorious Bybee Memorandum produced by the Bush Administration in 2002 defends the use of coercive interrogation by (among other things) arguing that torturing terrorists in order to prevent future harm could be justified as a form of “self-defense.” This argument relies on a recent and little-known theory of self-defense that I call the “distributive justice” theory. The goal of this essay is to demonstrate that distributive justice is a flawed theory of self-defense and must be rejected, thus undercutting the argument that torture can be justified as self-defense. Harm inflicted on a person who is in custody and no longer able to commit further acts of violence cannot plausibly be considered a form of self-defense.

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Information
Ethics & International Affairs , Volume 22 , Issue 1 , Spring 2008 , pp. 93 - 115
Copyright
Copyright © Carnegie Council for Ethics in International Affairs 2008

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References

Notes

1 United States Code, Title 18, secs. 2340–2340A; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Part 1, Art. 1.

2 Jay Bybee, U.S. Department of Justice Office of Legal Counsel, “Memorandum for Alberto R. Gonzales, Counsel to the President,” August 1, 2002, p. 1.

3 Ibid., p. 39.

4 Ibid.

5 Ibid., p. 1.

6 Ibid., pp. 43–44.

7 The memorandum, in fact, also makes a quasi-consequentialist argument for torture by reference to the legal doctrine of “necessity” or “choice of evils.” This doctrine allows a form of consequentialist reasoning in certain limited cases, permitting taking action otherwise unlawful in order to avoid a greater evil. However, this would appear to be a case of the exception proving the rule (against consequentialism), for the necessity doctrine is highly controversial and rarely applied. Even more important for our purposes, it has never been used (at least in the Anglo-American legal tradition) to justify killing or even harming people: one may pitch property off a ship to prevent it from sinking, but not human beings (despite the attempt by the Model Penal Code to eliminate this restriction); that is to say, it rejects the consequentialist principle that one may use people as a means to the greater good. For this reason, the necessity doctrine cannot be invoked to permit the use of torture, leaving the self-defense argument the essential matter of debate.

8 Bybee, “Memorandum,” pp. 42–43.

9 The memorandum's observation that “nothing in the text, structure or history of Section 2340A precludes its application to a charge of torture” (p. 42) can only be taken as disingenuous, since the idea that self-defense might be used as a defense to torture was not addressed because it has never been taken seriously before.

10 Bybee, “Memorandum,” p. 42.

11 The memorandum cites Moore's article “Torture and the Balance of Evils,” Israel Law Review 23 (1989), p. 280, though Moore developed this argument in more detail in his book Placing Blame (New York: Oxford University Press, 1998). (This essay focuses on the later version of the argument.) Another prominent commentator, Jeff McMahan, has recently also endorsed the principle that self-defense can provide a justification for torture (though McMahan, for complex reasons, argues against a rule permitting torture). See Jeff McMahan, “Torture, Morality, and Law,” Case Western Reserve Journal of International Law 37 (2006).

12 The argument would also presumably apply to cases where the terrorist is even reasonably suspected of having responsibility for planting a bomb, where the torture might be calculated to find out if this is indeed the case.

13 It is standard in the literature to use the term “self-defense” as a generic term to cover cases of defense of self, defense of others, and even defense of property.

14 See Phillip Montague, “Self-Defense and Choosing Among Lives,” Philosophical Studies 40 (1981), pp. 207–19.

15 Ibid., p. 218.

16 Phillip Montague, Punishment as Societal Defense (Lanham, Md.: Rowman and Littlefield, 1995).

17 See George Draper, “Fairness and Self-Defense,” Social Theory and Practice 19, no. 1 (Spring 1993), pp. 73–92; Chesney Ryan, “Self-Defense, Pacifism and the Possibility of Killing,” Ethics 93 (April 1983), pp. 508–24; Kent Greenawalt, “Violence: Legal Justification and Legal Appraisal,” Emory Law Journal 32 (1983), p. 454; Daniel Farrell, “The Justification of Deterrent Violence,” Ethics 100 (January 1990), pp. 301–17; Daniel Farrell, “Deterrence and the Just Distribution of Harm,” Social Philosophy and Policy 12, no. 5 (Summer 1995), pp. 220–40; Jeff McMahan, “Self-Defense and the Problem of the Innocent Attacker,” Ethics 104 (January 1994), pp. 252–90; Jeff McMahan, The Ethics of Killing (New York: Oxford University Press, 2003); Jeff McMahan, “Self-Defense and Culpability,” Law and Philosophy (2005); Michael Otsuka, “Killing the Innocent in Self-Defense,” Philosophy and Public Affairs 23 (1994), pp. 74–94; Reem Segev, “Fairness, Responsibility and Self-Defense,” Santa Clara Law Review 45 (2005), pp. 383–460; Shlomit Wallerstein, “Justifying the Right to Self-Defense: A Theory of Forced Consequences,” Virginia Law Review 91 (2005), pp. 999–1035; Seumas Miller, “Self-Defence and Forcing the Choice Between Lives,” Journal of Applied Philosophy 9 (1992), p. 239; Deirdre Golash, The Case Against Punishment (New York: New York University Press, 2005); Kimberly Ferzan, “Justifying Self-Defense,” Law and Philosophy 24 (2005), pp. 711–49; Moore, Placing Blame, pp. 712–24; and Boaz Sangero, “A New Defense for Self-Defense,” Buffalo Criminal Law Review 9 (2006).

18 To be sure, the use of torture would likely have gone ahead even without the support of such legal theorizing. Still, it is hard to say what might have happened had Justice Department lawyers concluded that there was no legal basis for permitting torture.

19 See, e.g., McMahan, “Torture, Morality, and Law” n. 4.

20 R v. Dudley and Stevens (1884) 14 QBD 273. This case is discussed in great detail in A. W. Brian Simpson, Cannibalism and the Common Law (Chicago: University of Chicago Press, 1984).

21 See, e.g., Suzanne Uniacke, Permissible Killing (Cambridge: Cambridge University Press, 1994), pp. 18–19; compare David Rodin, War and Self-Defense (New York: Oxford University Press, 2002), p. 119 (“the normative aspirations of ‘a theory of self-defense’ require a grounding in moral theory”).

22 Moral intuitions must of course be used with caution, lest they become simply an excuse for the author asserting his own view. However, there is an increasingly large body of evidence of moral intuitions as actually measured experimentally, including, for example, on the trolley problem. Also, of course, intuitions can be inferred from actual practices and traditions—for instance, the fact that Anglo-American law of self-defense permits self-defense against Innocent Aggressors. There is, in fact, substantial evidence of widespread agreement on these intuitions, even cross-cultural agreement. See Marc Hauser, Moral Minds (New York: Harper Perennial, 2006), pp. 121–31.

23 See, e.g., Michael Walzer, Just and Unjust Wars, 3rd ed. (New York: Basic Books, 2000), p. 58; and Rodin, War and Self-Defense, p. 107. Indeed, the Bybee memorandum uses arguments from domestic self-defense to justify what is presumably national defense—i.e., the use of torture by the government for state purposes.

24 Bybee, “Memorandum,” pp. 42–43. Actually, the memorandum's analysis of the imminence rule is questionable (p. 43), but I will ignore this complication for the purposes of this essay. For a detailed discussion of the imminence requirement, see my “Self-Defense, Imminence, and the Battered Woman,” New Criminal Law Review 10, no. 3 (Summer 2007). It is also noteworthy that several supporters of the distributive justice theory question the proportionality rule as well; see, e.g., Draper, “Fairness and Self-Defense,” p. 79; and McMahan, “Self-Defense and the Problem of the Innocent Attacker,” p. 259, n. 11.

25 See Protocol 1 Additional to the Geneva Conventions of 1949 (1977).

26 The distinction between intended and foreseen harm is also essential to the definition of torture in the international Convention Against Torture, which defines torture as severe pain or suffering that is “intentionally inflicted,” as distinct from pain or suffering arising from “incidental to lawful sanctions.” Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 1.

27 Ibid.

28 See, e.g., my discussion of this issue in “What Is the Scope of Civilian Immunity in Wartime?” Journal of Military Ethics 2, no. 3 (2003), pp. 186–94.

29 See, e.g., Smith v. State, 419 S.E.2d 74 (Ct. App. Ga. 1992), holding that the use of legitimate self-defense that resulted in harm to a bystander did not give rise to legal liability for assault on the bystander, given the absence of any intent to harm the bystander.

30 Montague, Punishment as Societal Defense, p. 40.

31 Ibid., p. 37.

32 Ibid., p. 48.

33 McMahan, The Ethics of Killing, p. 403.

34 Noam J. Zohar, “Collective War and Individualistic Ethics: Against the Conscription of ‘Self-Defense, ’” Political Theory 21, no. 4 (Nov. 1993), p. 611.

35 Ibid., p. 610.

36 Ibid.

37 Ibid., p. 611.

38 McMahan, The Ethics of Killing, p. 516, n. 123.

39 Phillip Montague, “Self-Defense and Innocence,” Utilitas 12 (2000), p. 69.

40 McMahan, “Self-Defense and the Problem of the Innocent Attacker,” p. 264.

41 See, e.g., Draper, “Fairness and Self-Defense,” p. 84; Montague, Punishment as Societal Defense, p. 228; and Segev, “Fairness, Responsibility and Self-Defense,” p. 458.

42 Montague, Punishment as Societal Defense, p. 36; see also Segev, “Fairness, Responsibility and Self-Defense,” p. 390.

43 See, e.g., Montague's uncertainty regarding the trolley case, Punishment as Societal Defense, p. 46.

44 Farrell considers it a “very interesting question” whether one is “justified in imposing harms on admittedly innocent individuals in an effort to deter other individuals from imposing harm” (“The Justification of Deterrent Violence,” p. 316, n. 9), under the deterrence principle, which he thinks is “exactly the same principle” that justifies self-defense (p. 302). Presumably, it is also an “interesting” question for him whether one may harm an innocent bystander as a means to defend oneself.

45 Moore, Placing Blame, p. 714.

46 See, e.g., Uniacke, Permissible Killing, pp. 188–89.

47 McMahan, The Ethics of Killing, p. 406.

48 Draper, “Fairness and Self-Defense,” p. 82.

49 Segev, “Fairness, Responsibility and Self-Defense,” p. 430.

50 McMahan, The Ethics of Killing, p. 406.

51 David Wasserman, “Justifying Self-Defense,” Philosophy and Public Affairs 16 (1987), pp. 371–72.

52 Jean Hampton, Political Philosophy (Boulder, Colo.: Westview Press, 1997), p. 122.

53 Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), p. 149.

54 See, e.g., Montague, Punishment as Societal Defense, chap. 3; Segev, “Fairness, Responsibility and Self-Defense,” p. 421 (the principle “represents a distributive consideration … and not a retributive notion”); and Draper, “Fairness and Self-Defense,” p. 66 (the justice principle of self-defense “should not be interpreted as a retributive principle”).

55 McMahan, “Self-Defense and the Problem of the Innocent Attacker,” p. 259.

56 Draper, “Fairness and Self-Defense,” p. 66.

57 Compare Montague, Punishment as Societal Defense, p. 39.

58 Segev, “Fairness, Responsibility and Self-Defense,” p. 422.

59 See, e.g., discussions in Otsuka, “Killing the Innocent in Self-Defense,” pp. 87–88; and Segev, “Fairness, Responsibility and Self-Defense,” pp. 428–29.

60 Segev, “Fairness, Responsibility and Self-Defense,” p. 429.

61 Indeed, some hybrid theories of self-defense argue that consequentialist principles should be invoked only as regards innocent persons. See Lawrence Alexander, “Justification and Innocent Aggressors,” 33 Wayne Law Review (1987), p. 1186.

62 Moore, Placing Blame, p. 714.

63 Ibid.

64 Ibid., p. 715.

65 Ibid.

66 McMahan, “Torture, Morality, and Law,” p. 40.

67 Bybee, “Memorandum,” p. 44.

68 That defensive force must be distinguished from instrumental force (force used as a means) is a position I defend in my “Self-Defense and the Doctrine of Double Effect” (manuscript in progress). But clearly self-defense must presuppose some such distinction, for not all sorts of force are permitted even against a present Culpable Aggressor (e.g., using him as a shield or throwing him on a grenade).

69 Uniacke, Permissible Killing, p. 187.

70 Thomas Nagel, The View From Nowhere (New York: Oxford University Press, 1989), pp. 176–80. Note that it is the nature of the harm, not the fact of the child's innocence. Nor is it relevant that the child is tortured to influence the mother; it would be just as wrong to torture the mother to get her to release the keys.

71 Note also that the analogy with the case of killing the kidnapper who has indicated he will kill you in the near future is not relevant, for the kidnapper who has a present intention to cause harm (even if the harm is relatively distant) is a present aggressor (indeed, he is an aggressor simply by virtue of his holding you hostage). I discuss this case in my “Self-Defense, Imminence, and the Battered Woman.”

72 Bybee, “Memorandum,” pp. 42–43.

73 Moore, Placing Blame, p. 715.

74 Ibid.

75 See Farrell, “The Justification of Deterrent Violence,” p. 316, n. 9. Farrell also uses self-defense to develop an effectively consequentialist theory; he finds in self-defense a basic principle of “deterrence,” i.e., the causing of harm in order to prevent greater harm.

76 Moore, Placing Blame, p. 716.