Religion & Law

MOJ-friend and accomplished philosopher Chris Eberle sends in this:

Rob Vischer asked the following question: 

In response to the release of documents describing our government's interrogation practices, former Vice-President Cheney has asked the government to release documents that "lay out what we learned through the interrogation process and what the consequences were for the country."  Why exactly should the fruits of torture be relevant to our evaluation of torture's acceptability?  Would Cheney want to know the medical fruits of embryonic stem cell research or the (purported) sociological fruits of abortion on demand before condeming those practices? 

It seems to me that there is a sensible answer to this question.  The best argument in favor of the waterboarding of Khalid Sheikh Muhammad is not a consequentialist argument, as perhaps Vice President Cheney has suggested, but one that appeals to plausible claims about personal liability.  The argument is, roughly, as follows.  Suppose, as I think is in fact the case, that the US had compelling reason to believe that KSM played a crucial role in planning that attacks on 9/11 and that KSM was involved in the planning of future but then unknown attacks.  Given that the US government had reason to believe that KSM culpably initiated some realistic threat to innocents, and given that the US could prevent that serious threat by waterboarding KSM, the US government permissibly waterboarded KSM.  That is, KSM?s culpable role in initiating a series of events that would eventually result in the death of innocent persons is what made it the case that the

US

government permissibly coerced KSM into revealing information that prevented the planned attacks.  (This despite the fact that KSM no longer played any role at all in carrying out the planned attack ? he was, at the time of his being waterboarded, not capable of carrying out the attack himself, but only of revealing information about those whom he had sent to carry out the attacks.) 

 

(You can think of many wild analogues here ? Jack poisons Perkin who will much later suffer then die unless we find the antidote which Jack has hidden and will not reveal unless? -- but we don?t need any fanciful thought experiments, since we have KSM himself to reflect on!)

 

You might, or you might not, regard this argument as sound.  Fine.  But if you do, as Cheney and others might, then any evidence that vindicates the US government?s claim that KSM knew about, or played some role in initiating, the planned Los Angeles attacks is relevant to the moral judgment we should render regarding the permissibility of the US government?s waterboarding KSM.  In other words, facts about KSM?s knowledge of some impending threat ? facts initially gained by way of waterboarding KSM -- shed some light on the moral permissibility of the government?s treatment of KSM.