Connor Burne

When is it morally justifiable to inflict physical and/or psychological pain on another human being? Is there ever a morally justifiable circumstance to cause such suffering? According to the United States, the answer is “yes.” American intelligence and military personnel have subjected illegal combatants in the War on Terror to enhanced interrogation techniques for the past 17 years. While the term “enhanced interrogation techniques” has provided legal technicalities and loopholes that have permitted the United States to skirt the United Nations Charter statute banning torture, the road to moral justification is equally complex. Despite the different nature of legality and morality, the outcome is the same for enhanced interrogation techniques. Enhanced interrogation techniques are morally justified. The United States government’s use of enhanced interrogation techniques, within the confines of the War on Terror, has been ethically reasonable, neither violating humanitarian rights nor moral principles. The moral tenets that will be addressed are the Common Good, Sin and Evil, Extrinsic Goods, Rights and Responsibilities, Duty and Obligation, Happiness and Wellbeing, Human Dignity, and Virtue.

The Intelligence Community is tasked with the gargantuan responsibility of safeguarding the United States from acts of terror and foreign aggression. The ability to obtain reliable information in a timely manner is paramount to the success of their mission. The extreme nature of their mission often causes those responsible to take extreme measures and push the boundaries of what is accepted by society at large. This is the contextual framework within which the ethical judgment will be made.

Definitions

Before proceeding further into the moral arguments surrounding this issue, one first must provide a few working definitions of key terms. It is acknowledged that in the ongoing debate over enhanced interrogations, the opposing sides often do not agree on common definitions. For the purposes of this moral analysis, the definitions set forth below will be considered agreeable to both sides. Torture is defined by the United Nations as,

Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity (UN 1985).¹

The Central Intelligence Agency has enumerated enhanced interrogation techniques as including “(1) the attention grasp; (2) walling; (3) the facial hold; (4) the facial insult or slap; (5) cramped confinement; (6) insects placed in confinement box; (7) wall standing; (8) stress positions; (9) prolonged sleep deprivation; (10) the water board.”² Through the course of this paper, the terms enhanced interrogation, torture, and coercive interrogation will be treated synonymously due to their extensive use by various sources in describing the same acts. This is not to equate enhanced or coercive interrogation to torture in moral terms, but only to avoid confusion among the word choice of the references in this paper. It is important to also note the description of Central Intelligence’s Standard Interrogation Techniques, which include “sleep deprivation up to 72 hours, continual use of light or darkness in a cell, loud music, and white noise, approved for use by the CIA.”³

The last definition of importance to the entirety of this essay is irregular/illegal combatant. This is important because the individuals subjected to enhanced interrogation are classified as illegal combatants. The working definition of irregular/illegal combatant is “anyone engaging in political violence (i.e., intended to change a government’s behavior) who is not in conventional military uniform, and/or not obeying unified military command, and/or not in the employ or under the conscription of an internationally recognized nation-state.”⁴ Throughout this paper the terms illegal combatant, irregular combatant, terrorist, and detainee will be treated synonymously to maintain congruity among the various sources.

The Common Good

The Common Good is an important ethical term in establishing the morality of enhanced interrogation. Obviously, obtaining the right intelligence at the right time can help ensure the safety of the general public. But if enhanced interrogation techniques must be used, then does it still serve the common good, or do those acts outweigh the positive benefits to society? There are a multitude of ways of looking at the common good; however, the focus here will be through a utilitarian view.

Utilitarianism presents the ideology of the cost-benefit ratio. In simplistic terms, if the act benefits more than it harms, then the act is justified. From this perspective, the bodily suffering of one individual is less than the deaths of multiple innocents. Thus, even though enhanced interrogation “might incur a relatively low number of negative consequences … these consequences could be outweighed by the successful interruption of one massive plot.”⁵ When saving lives is the top priority, then the discomfort of enhanced interrogation on select individuals does not constitute a violation of morals. In fact, it would be unethical for the government not to do everything it could, including enhanced interrogation, in order to prevent the loss of innocent lives. For utilitarianism, placing the concerns of the individual above those of society at large is immoral.

A counterargument to the utilitarian position is that while it may save lives, the act of torture itself would degrade the nation’s moral standing, therefore detracting from the common good. This would occur through the eroding of trust by the “misuse of medical professionals, misapplication of scientific knowledge, loss of honor in the military, and compromised integrity of the legal system.”⁶ A view of the government as “corrupt and corruptible” would result in “irreparable damage to the society that condones or legalizes torture.”⁷ On the contrary, if the government were to “allow the loss of innocent lives when this could have been averted,” then the impact on the society’s view of the government could be more devastating than that of a government that permits torture.⁸ In light of this argument, enhanced interrogation has a positive impact on the common good, as its absence can be more detrimental than its use.

Sin and Evil

Sin and evil are important shaping factors for the ethicality of enhanced interrogation. They are closely related to the aspect of the common good. Two wrongs do not make a right, so it is important to determine that enhanced interrogation techniques do not constitute being sin or evil as a means to their end of the common good. This determination comes down to the intent behind the act. The principle of double-effect deals with the intentions behind the act. Killing in self-defense is justified by this principle. If an individual has the intention of preserving innocent life, and as a subsequent result of their actions the attacker is killed, then that individual is not morally at fault for the attacker’s death. As long as proportionality is followed, then the double-effect, or unintended effect, of death is acceptable.

The principle of double-effect can be similarly applied to enhanced interrogation. One must understand “the rationale for the EITs was that they would be effective in securing intelligence from detainees that were unresponsive to the SITs, thereby increasing the capacity of the United States to prevent future terrorist attacks.”⁹ The intent of enhanced interrogation is to acquire information in order to save innocent lives, not arbitrarily inflict pain on detainees. In fact, according to the manual, pain is not even one of the goals of enhanced interrogations, but rather “disorientation, anxiety, dread, and physical discomfort pursuant to the pliable and child-like state of ‘regression.’”¹⁰ The objective is to erode the individual’s will to withhold information. Enhanced interrogations are protected by the principle of double-effect as they do not intend to cause harm to the detainee, but rather seek to protect innocent life by acquiring information.

Extrinsic Goods

Extrinsic goods are an essential piece of the enhanced interrogation rationale. If the interrogations were not to produce information that could be used for furthering other goods, viz. saving lives, then enhanced interrogations would lack any compelling argument. While morally it is the intrinsic goods typically most essential, in the case of enhanced interrogations the extrinsic goods are equally important.

Numerous assertions and studies claim information obtained under torture is unreliable. However, a report by the Central Intelligence Agency’s Office of the Inspector General revealed “that over 3,000 reports were produced from the intelligence provided by the High Value Detainees subjected to EITs.”¹¹ The report goes further to say,

The detention of terrorists has prevented them from engaging in further terrorist activity, and their interrogation has provided intelligence that has enabled the identification and apprehension of other terrorists, warned of terrorist plots planned for the US and around the world, and supported articles frequently used in the finished intelligence publications for senior policymakers and war fighters. In this regard there is no doubt that the Program has been effective.¹²

There is no clearer statement of affirmation for the effectiveness of enhanced interrogation than in this independent report. The responsibility of the CIA IG is to review the legality, ethics, and effectiveness of activities within the Agency. It is evident that after completing their review of the enhanced interrogation program, the IG found the program to meet the legal, ethical, and effectiveness standards. The information obtained by enhanced interrogations makes a difference in protecting innocent lives, making that information an extrinsic good of such interrogations.

Duty and Obligation

The duties and obligations of the interrogator to their country, fellow man, and to the detainee all come into play when debating the ethics of enhanced interrogations. By nature of the interrogator’s position and oath, it becomes their duty to protect innocent, civilian lives. This duty extends to striving to ensure the safety of all innocent lives around the globe, which is an obligation of all mankind. Yet, while protecting the lives of the innocent, the interrogator also has an obligation to the detainee. The interrogator must not violate morality in the process of questioning the detainee. The interrogator’s duties and responsibilities to the detainee primarily fall within the realm of rights, responsibilities, and human dignity. While there is a “moral duty to treat a terrorist humanely,” it is also true the interrogator must “treat innocent people with respect by taking necessary steps (e.g., torturing the terrorist) to save their lives.”¹³

The interrogator’s duty to the country plays the foremost role of all the obligations. While other duties exist, the “most important duty in this case is to the community as a whole.”¹⁴ Those involved in interrogations “have a valuable and ethical role to assist in protecting our nation, other nations, and innocent civilians from harm, which will at times entail gathering information that can be used in our nation’s and other nations’ defense.”¹⁵ Because the duty to protect the innocents is of higher importance than the obligations to the detainee, enhanced interrogation becomes not merely acceptable but required if necessary to obtain information. If one accepts the adage “doing nothing is doing something,” then “refusing to torture … could be construed as being an agent in the deaths of hundreds of innocent people.”¹⁶ Additionally, this framework supports the principle of double-effect as the interrogator’s “moral duties are to the innocents” and “saving innocent people is a moral act” so “the suffering of the terrorist can be viewed as double (or side) effect.”¹⁷

The biggest counterargument is the medical professionals present/utilized during enhanced interrogations have a duty to “‘do no harm’ to the detained individual who holds potentially valuable information.”¹⁸ But by their inaction they could be “causing great harm” by subjecting society to a terrorist attack.¹⁹ The medical professional’s duty “extends beyond the interrogation room to also include all of the innocent … potential victims.”²⁰ It is therefore the interrogator’s primary moral duty to protect the innocent lives of society at large.

Rights and Responsibilities

The rights of the detainee are a central theme of the debate over enhanced interrogations that must be balanced with the responsibilities of the interrogators. As enumerated in the above section on duty and obligation, the interrogator’s chief focus must be on protecting innocent lives. Given the extensive treatment of the interrogator in the previous section, this section will focus on the detainee and society. Various ethical approaches exist to the detainee’s rights and responsibilities, but the primary framework utilized here will be consequentialism. This approach analyzes the morality of situations by accounting for the actions’ ensuing effects.

Detainees have a right “not to be harmed.”²¹ However, their rights are extremely limited in scope. They are not able to claim the rights granted by United States laws, as they are not American citizens. Neither are they able to claim the protections of international treaties on warfare, such as Geneva or POW rights, as they are illegal combatants. Legally speaking, detainees have no extended rights beyond those of being a person, which essentially comes down to moral rights. Society at large also has these moral rights, including the freedom from being harmed.

Enhanced interrogations inflict a degree of pain that is a “lesser and more remediable harm than death” where in comparison “the lives of a thousand innocent people should be valued more than the bodily integrity of one guilty person.”²² Through this perspective, “the sum total of pain avoided by preventing [a terrorist attack] is greater and therefore consequentially justified by the experience of pain of the one or more individuals that are tortured.”²³ Enhanced interrogations present a scenario in which “net pain is minimized.”²⁴

One may argue by the very nature of a detainee being detained, that individual no longer poses a threat to society. However, this assertion ignores the fact a detainee’s “silence passively facilitates his group’s actions by not giving others the information to potentially disrupt those actions.”²⁵ The information withheld by the detainee holds the potential to prevent the loss of innocent lives. Furthermore, the information possessed by detainees are “essentially criminal ones to which they do not have a right.”²⁶ Because life is inherently more valuable than bodily integrity, the detainee’s rights are trumped by society’s rights, allowing enhanced interrogation techniques to be utilized in obtaining the necessary information to preserve innocent lives.

Happiness and Well Being

While the happiness and well being of the individual being interrogated is a factor, most debates sidestep this concern. The detainee has already committed acts which, by law, have forfeited that individual’s right to happiness and well being. But from a moral perspective can one truly forfeit one’s right to happiness?

Enhanced interrogations are designed to mitigate the impact on the detainee’s happiness and well being. As stated previously, the intent is to break the detainee’s will to withhold information, not to cause pain or render the detainee incapable of providing information. Enhanced interrogation methods are medically tailored “so that long-term, permanent physical damage or death” is avoided.²⁷ Because of this, the forfeiture of moral rights is a moot point. Enhanced interrogation is not “meted out as a punishment” but only seeks to obtain information.²⁸ In the pursuit of information to save lives, the techniques abide by the principle of proportionality in minimizing the effects on the detainee’s happiness and well being.

In terms of ultimate happiness, it can be argued enhanced interrogations actually benefit the detainee. By refusing to provide information, the detainee is responsible for whatever lives are lost as a result of his group’s actions. By coercing the information from the detainee, the interrogators are “preventing the individual’s participation in the heinous murder of innocents.”²⁹ This reflects not only a respect of the detainee’s rights, happiness, and well being, but also a love of one’s enemies. By saving innocent lives, the interrogator is also saving the detainee from the moral culpability for their deaths.

Human Dignity

Noting the UN Declaration of Human Rights’ prohibition on “inhuman or degrading treatment” due to “the inherent dignity of man,” this concept is of utmost importance to the morality of enhanced interrogations. To what degree must human dignity be upheld under the circumstances in which enhanced interrogations are utilized? The critical question here is have detainees “acted in a manner in which certain of their prima facie human rights can be overridden, that is, the right not to be tortured?”³⁰ If so, then certainly heinous acts of terrorism would constitute the forfeiture of one’s human dignity.

Regardless of the despicable acts of the detainee, they still retain a degree of human dignity that must be respected. One tenet of upholding the detainee’s dignity is “to use the least harmful interrogation techniques.”³¹ This acknowledges the detainee is a human being and, while the information needs to be obtained, there still must be a consideration for the detainee. This leads to the implementation of proportionality in the techniques utilized to obtain the information.

The concept of limiting human dignity is not incompatible with morality. It has been recognized throughout history individuals “fairly convicted of a crime and sentenced to prison” have “abrogated their prima facie right to freedom.”³² This implies “there are situations in which fundamental human rights legitimately can be overridden.”³³ It is therefore morally defensible to argue a detainee has “placed himself outside the moral community and has forfeited duties others have toward him,” thus making enhanced interrogation “not morally wrong.”³⁴ While human dignity cannot be destroyed entirely, it is morally permissible to restrict it based upon the terrorist acts of the detainee.

In addition to the human dignity of the detainee, one must also consider the human dignity of society at large. While the detainee’s dignity must be upheld, the dignity of society must be preserved as well. Admittedly “it is morally impermissible to torture” under general circumstances; however, “in extreme cases where torture may be the only means by which to save lives” it becomes morally necessary to utilize such measures to uphold the human dignity of society.³⁵ Although most arguments of human dignity center on the human rights of the detainee, it is important remember the innocent “have the right not to be horribly mangled, maimed, traumatized, torn limb from limb, or killed” as a result of a terrorist attack that could have been prevented.³⁶ Violating the human dignity of the detainee, in abidance with proportionality, is morally acceptable in order to uphold the dignity of the potential victims.

Virtue

It may seem counterintuitive to address virtue as a moral term relating to enhanced interrogation. However, virtue plays a major part of enhanced interrogations on the personal level of the interrogator. Despite enhanced interrogation techniques being morally acceptable under the given circumstances of terrorism, carrying out the interrogations does entail causing the detainee to suffer. In order to conduct enhanced interrogations, “there is a price to pay” and that price is typically the interrogator.³⁷ Utilizing enhanced interrogation techniques on a detainee can be morally taxing for those facilitating the interrogation.

For the interrogator, “overcoming these feelings of revulsion in the service of saving the lives of your fellow human beings is morally admirable … courageous.”³⁸ In fact, an unwillingness to carry out enhanced interrogations is “admirably immoral…. It is admirable because this person is acting as a virtuous person but is acting immorally because torture is morally the duty involved in averting disastrous harm to others.”³⁹ Enhanced interrogations are difficult to digest for the interrogator’s moral conscience. Ultimately, exhibiting the courage to carry out the interrogations reflects a virtuous nature in properly ordering one’s morals to protect the lives of the innocent before the temporal integrity of the detainee’s well being.

Conclusion

The United States has been morally justified in its use of enhanced interrogation techniques in the War on Terror. The proportionality with which the techniques are employed ensures they do not violate the human dignity of the detainee. It is this proportionality and extensive efforts to avoid severe pain that legally establish enhanced interrogation techniques as not amounting to the United Nation’s definition of torture. It is in fact the legal duty and moral obligation of the Untied States to subject detainees to such techniques when necessary in order to best provide for the security and wellbeing of innocent lives. The information obtained through enhanced interrogation is paramount to providing for the common good, fulfilling the government’s moral and Constitutional responsibilities.

The use of enhanced interrogations is unfortunate. In the ideal world such harsh methods would not be utilized. But there is evil present in the world and that evil must be repressed. In pursing the fight against evil, one must be chary of devolving into justifying the use of evil to fight evil and rubber-stamping whatever acts need be committed along the way. Enhanced interrogations are not morally justified by a rubber-stamp. They are justified by a complete analysis of their intent and effects. As the above moral tenets have described, enhanced interrogations serve to provide for the defense of innocent lives through a proportional degradation of the detainee’s defrauded rights. Similar to the use of deadly force, the principle of double effect serves as the clearest cut justification for enhanced interrogation. The intent is not to cause harm, but rather to prevent harm from occurring to innocent lives. The incidental, minute suffering of the detainee is a small price to pay for the protection of millions of lives around the world. Enhanced interrogations are morally justified, and morally mandated.