Tuesday, November 21, 2017

The moral backdrop of interrogations

Hanns Joachim Scharff was, by all accounts, a profoundly humane interrogator. The prisoners he interrogated described his demeanor as friendly and empathic. He didn’t use torture, threats, or intimidation. Instead, he engaged captured airmen in seemingly free-flowing conversation and created the impression that he already knew everything of importance. As a result, the prisoners he interrogated overestimated what he knew and failed to realize how much crucial new information they were in fact disclosing to Scharff. Compared to the typical accusatory interrogation, which is characterized by trickery and powerful social influence that are liable to induce innocent people to falsely confess to crimes they didn’t commit, Scharff’s techniques were quite benign [1]. There is much to say about his remarkable interrogation techniques, but Scharff’s skill as an interrogator is actually not my main concern here. When I co-wrote a book chapter on the ethics of interrogation with Maria Hartwig and Michael Skerker, we described Scharff as “active in World War II” – which may reasonably strike people as an inappropriately sanitary phrase, given that he was fighting for Nazi Germany. We more or less ignored the context in which Scharff was conducting his interrogations, even though we argued that the tactics he used were, by and large, likely morally defensible.

As far as I know, the social, political, and legal context in which questioning occurs has been largely unexplored in the moral analysis of interrogation. Perhaps this is because researchers who study interrogation and philosophers who have examined the ethics of interrogation have mostly focused on specific tactics, rather than the broader environment in which an interrogation might happen. This seems like a massive oversight. Interrogation under potentially adverse moral conditions is an interesting moral problem, and here, I wish to offer a brief (and admittedly, incomplete) analysis of the moral environment in which interrogations take place. (Readers interested in the ethics of specific interrogation tactics are referred to the aforementioned book chapter. Also, it’s worth noting that I’m a psychologist, not a philosopher – so this whole analysis might be fairly amateurish.)

There is much to admire about Hanns Scharff, perhaps in the same way that people often admire the famed German general Erwin Rommel – both as a talented professional and as a human being with an apparent moral core. This admiration is usually accompanied by a polite dismissal of the fact that they fought for Nazi Germany. After all, it wasn’t their choice to start or carry on fighting the war. But is it reasonable to compartmentalize their actions into what they did “on the ground” and broader effects of their service – namely supporting the Third Reich’s war effort?  Michael Walzer uses Rommel as an example of precisely this problem in his authoritative treatment of traditional just war theory. Can we shake Rommel’s hand? he asks metaphorically. Was his skilled service morally defensible, even laudable, despite it being a part of flagrantly unjust war? Or is the morality of his actions poisoned by the injustice of the larger purposes to which his service contributed?

Walzer’s conclusion – following the traditional separation of jus ad bellum (morality in going to war) and jus in bello (morality in the conduct of war)– is that we can still shake Rommel’s hand and that his service was honorable, even if it facilitated the evil objectives of his Nazi superiors. Walzer argues that jus ad bellum and jus in bello are “logically independent” – that one can fight a war in a just or unjust manner, regardless of whether one has gone to war for just or unjust reasons. This independence is built on the notion of the “moral equality of combatants” [2] – the idea that by taking up arms, fighters in a war have equally forfeited their right to safety and accepted the risk of harm and death. As such, they are permitted to fight and kill each other, as long as they do so in a manner that comports with the rules of warfare (e.g., not targeting civilians, not using needlessly cruel weapons). Thus, in traditional just war theory, regardless of the broader reasons for waging war, it is permissible for combatants to face each other with deadly force. In this view, we can shake Rommel’s hand for his service.

I disagree with traditional just war theory, and I agree generally with Jeff McMahan’s arguments – sometimes called “revisionist” just war theory – for the inseparability of jus in bello and jus ad bellum. McMahan rejects the moral equality of combatants on the basis that, even if all combatants were to consent to the risks of harm or death, this would not in itself make harming or killing them permissible. Simple willingness to be killed is insufficient to make killing that person permissible. In the revisionist view, fighting for an unjust cause is unjust, even if it is conducted with strict adherence to the highest standards of jus in bello [3]. In this view, probably the most honorable thing Rommel did in World War II was betray Hitler.

McMahan’s revisionist argument seems more plausible to me than the orthodox arguments of just war theory. My general position is that the morality of a course of action is inextricably tethered to the causes it supports (or is intended to support). To return to the topic of interrogation – interrogations often take place in the context of war, but it’s likely that the vast majority are conducted by police or other investigators as part of otherwise ordinary civilian life. Despite the obvious differences, I believe the moral analysis of war can provide us with insight into the morality of interrogation. I’ll return to this idea shortly.

In his book, An Ethics of Interrogation, Michael Skerker argues that although people have rights to privacy and secrecy, assuming that they exist in a “basically just state” – that is, a state whose laws are generally moral – criminals do not have a right to keep their criminal knowledge a secret. As such, interrogators can permissibly exert influence on suspects to obtain information about their potential criminal behavior, assuming the techniques of interrogation are respectful of people’s moral rights and do not put the innocent at undue risk. This argument seems correct to me, but the assumption of a basically just state is a big assumption. It is likely the case that an awful lot of interrogations take place under conditions that are not basically just (e.g., in totalitarian states) or take place as part of the enforcement of particular unjust laws (e.g., Inquisitorial laws against heresy, blasphemy, and witchcraft). Indeed, Scharff’s interrogations took place under the authority of the quintessential unjust state. Moreover, plenty of interrogations take place outside of the authority of any state, just or unjust. For example, loss prevention officers regularly interrogate company employees about missing goods or money. Private investigators regularly question witnesses and conduct surveillance on targets. From where, if anywhere, do these actors obtain their moral authority to infringe upon people’s rights not to have their lives interrupted and their privacy intruded upon?

In the analysis of interrogation, we could adopt an approach similar to that of traditional just war theory, in which we separate what might be called jus ad interrogatum (morality of interrogating someone) and jus in interrogation (morality of the conduct of an interrogation). Although I don’t think anyone has actually taken this position before, an extrapolation of traditional just war theory seems a natural point of comparison for the view I will offer later. Some might object to drawing a parallel between war and criminal investigation, but I don’t think it’s as much of a stretch as it might seem. The police – as a morally important institution tasked with the defense of important societal interests – are easy enough to compare to a military. Members of both institutions are expected to occasionally (permissibly) infringe upon people’s typical moral rights (e.g., not to be harmed, detained, or investigated). Unlike combatants in a war, though, investigators are not typically thought to forfeit their right to safety – but they do cede some of their autonomy to the law. That is, the police are not expected to decide which laws to enforce [4]; that choice is made for them, and they are expected to exercise their power in accord with the law, whatever the law may be (in the same way a combatant is expected to fight whatever war has been waged). Sometimes, police are asked to enforce unjust laws [5], even in states that could be defended as basically just (e.g., miscegenation laws; forced sterilization laws). We might call this situation one that fails to satisfy jus ad interrogatum – one in which there is no just cause to detain and question a suspect. If we extend the reasoning from traditional just war theory, the injustice of the law is not the moral problem of an interrogator; having forfeited that aspect of autonomy, he or she may permissibly detain and interrogate suspects on the authority of the law. Thus, in this view, there is a logical independence of jus ad interrogatum and jus in interrogatio.

It is more difficult to see lawbreakers as similar to morally equal combatants in war. Nevertheless, there are pertinent similarities between breakers of specifically unjust laws and combatants in war. Specifically, in this view, when someone breaks an unjust law, they accept the risk entailed in such behavior, even though the criminal behavior itself is morally permissible. In orthodox just war theory, taking up arms means that you accept the risks entailed and forfeit your right not to be attacked (and potentially killed) by enemy combatants. If we extend this reasoning to the breakers of unjust laws, such criminals have also forfeited their right not to be investigated, detained, and questioned by breaking the law – but they have not forfeited their right to keeping the criminal behavior secret because they have not committed any moral wrongdoing.

If this reasoning is correct, like a fighter of an unjust war, an interrogator’s behavior might be morally defensible as long as it is reasonably respectful of the subject’s rights, even if the questioning is conducted for an unjust cause. However, the injustice of the law would, I believe, permit the subject of questioning to permissibly keep secret criminal knowledge. That is, because breaking an unjust law is not immoral, there is no moral reason such criminal knowledge could not permissibly be kept secret. Thus, in this framework, when armed men arrive at your door and ask (politely) for information about runaway slaves, they are acting morally. And when you lie to them and tell them your unaccounted-for horses went missing weeks ago (and are not racing for the Canadian border ridden by runaway slaves), you are acting morally too.

This strikes me as bizarre. It seems to me that the slave-hunters, no matter how rights-respecting their investigative techniques, are acting immorally – even if the law is on their side. I believe the slave-hunters act wrongly here because I don’t believe the lawbreakers here have forfeited their right not to be investigated and questioned in the first place. If they haven’t committed any moral wrongdoing in their breaking of the law, it seems to me they haven’t forfeited any moral rights. Even if the breaker of an unjust law consents to the practical risks involved in breaking the law, that does not make it permissible to detain and question them. The slave-hunters do not have a claim to infringing on anyone’s rights, however slightly, in the enforcement of the law because, again, there has been no moral wrongdoing that could justify such infringements.

As in the analysis of war, I favor a revisionist approach like McMahan’s. In such a revisionist framework, one cannot satisfy the demands of jus in interrogatio without first having satisfied the demands of jus ad interrogatum. That is, you need a just cause to investigate and interrogate. Without that, the benignity of your interrogation techniques is largely irrelevant; you act immorally if you are enforcing unjust laws or acting as an agent of an unjust state, even if you are an extraordinarily humane interrogator. In this view, the investigation by the slave-hunters is immoral regardless of their techniques, and the lies told by members of the Underground Railroad to resist their investigation are generally permissible (if not obligatory). In this view, however, Hanns Scharff acted immorally when he interrogated the captured airmen held at his station. I admit this conclusion makes me somewhat uneasy, but it seems correct to me. And morality is under no obligation to make me feel at ease.

There is an additional potentially uncomfortable conclusion that flows from this revisionist analysis: That interrogators act immorally when they question a subject without satisfying the needs of jus ad interragatum. This may mean that interrogators should refuse to participate in the detention and questioning of people for breaking unjust laws. McMahan has made similar arguments about unjust combatants in war. In the interest of not turning this post into a book, I won’t attempt to fully address this thorny problem here. I will instead simply suggest that, although there may well be some unjust laws that ought to be tolerated in deference to generally beneficent authorities whose stability would be frustrated by severe and chronic dissent, disobedience is not necessarily morally wrong and may often be a virtue, especially considering that – to quote Stanley Milgram – “human nature… cannot be counted on to insulate… citizens from brutality and inhumane treatment at the direction of malevolent authority.” Indeed, Milgram’s well-known research demonstrates the hazards of an overabundance of obedience.

I will close by noting an exception to the general notions that fighters for an unjust cause act immorally and that interrogators questioning for unjust reasons similarly act immorally. Jeff McMahan has argued that there may be rare cases in which unjust combatants do act in a manner that is morally defensible, as when they fight to prevent undue harm to innocent people. In his biography of Scharff, Raymond Toliver documents a case in which Scharff encountered several captured Allied airmen who were wrongly charged with turning their machine guns on civilians – a charge for which their otherwise assured conviction would have led to their wrongful execution. Scharff put considerable effort into investigating this case. With thorough and judicious investigation and exonerating evidence collected in numerous interrogations by Scharff, the charges against these men were finally dropped. Their executions would have been a grave injustice. In my view, Scharff was an unjust combatant, serving an unjust cause, but there may yet be reasons to shake his hand.

References

Hartwig, M., Luke, T. J., & Skerker, M. (2015). Ethical perspectives on interrogation: An analysis of contemporary techniques. In J. Jacobs & J. Jackson (eds), Routledge Handbook of Criminal Justice Ethics (pp. pp.326-347). London: Routledge.
McMahan, J. (2006). On the moral equality of combatants. Journal of Political Philosophy, 14, 377-393.
McMahan, J. (2009). Killing in War. Oxford: Oxford University Press.
McMahan, J. (2005). Just cause for war. Ethics & International Affairs, 19, 1-21.
McMahan, J. (2004). The ethics of killing in war. Ethics, 114, 693-733.
Milgram, S. (1965). Some conditions of obedience and disobedience to authority. Human Relations, 18, 57-76.
Skerker, M. (2012). An Ethics of Interrogation. Chicago: University of Chicago Press.
Toliver, R. (1997). The Interrogator. Pennsylvania: Schiffer Publishing.
Walzer, M. (1977). Just and Unjust Wars. New York: Basic Books.

Notes

1: The dangers of accusatory interrogations have been researched by psychologists and legal scholars. People interested in the problems of interrogations and false confessions and not knowing where to start might begin with the APLS White Paper on police induced confessions (Kassin et al, 2010). Here's the reference:


Kassin, S. M., Drizin, S. A., Grisso, T., Gudjonsson, G. H., Leo, R. A., & Redlich, A. D. (2010). Police-induced confessions: Risk factors and recommendations. Law and human behavior, 34, 3-38.

2: Walzer calls it the “moral equality of soldiers.” In line with McMahan, I prefer the term “moral equality of combatants” as it is more inclusive of airmen, sailors, and marines, as well as irregular fighters.

3: Just war theory has been debated for centuries, and McMahan’s revisionist arguments span a book and numerous articles. Obviously, I’m presenting a highly truncated version of both the traditional and revisionist arguments.

4: This point is debatable. Police discretion varies widely between jurisdictions. It could very well be the case that police are expected to use some judgment as to which laws to enforce, but it is probably not the case that police are legally expected to freely decide which laws are just and which are not and then act accordingly.

5: Laws can be unjust for a variety of reasons. For example, a behavior prohibited by a law could be one for which there is no moral basis for prohibition (e.g., interracial marriage), or the penalty for breaking an otherwise just law might be grossly disproportionate (e.g., capital punishment for petty theft).

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