An Ethics of Interrogation

Michael Skerker

• Publisher: University of Chicago Press
• Year: 2010
• ISBN:
  9780226761633
• Topic: Filosofía
• Subtopic: Historia y teoría filosóficas

The act of interrogation, and the debate over its use, pervades our culture, whether through fictionalized depictions in movies and television or discussions of real-life interrogations on the news. But despite daily mentions of the practice in the media, there is a lack of informed commentary on its moral implications. Moving beyond the narrow focus on torture that has characterized most work on the subject, An Ethics of Interrogation is the first book to fully address this complex issue. In this important new examination of a controversial subject, Michael Skerker confronts a host of philosophical and legal issues, from the right to privacy and the privilege against compelled self-incrimination to prisoner rights and the legal consequences of different modes of interrogation for both domestic criminal and foreign terror suspects. These topics raise serious questions about the morality of keeping secrets as well as the rights of suspected terrorists and insurgents. Thoughtful consideration of these subjects leads Skerker to specific policy recommendations for law enforcement, military, and intelligence professionals.

PART ONE

Interrogation in Domestic Law Enforcement

ONE

Autonomy, Rights, and Coercion

The detectives lied to Eugene Livingston:

Okay, as Sgt. Becker said Eugene, we have talked to a lot of people in this case. We’ve talked to you a couple of times, and every time we’ve talked to you, I think we were pretty, pretty honest with you. We were telling you what we were hearing, and we asked you a couple times to tell us what you know about this case. Now Mr. Young, as Sgt. Becker said, has uh given us a complete statement. He told us exactly what happened, what his role in the robbery was, and what everybody’s role in the robbery was. He implicated you also in the robbery. He’s identified you as being a participant. Now everybody who tells us things, at times may see things different, or may not be completely truthful. That’s why we wanta come to you now and get your part of exactly what happened, and your participation in the robbery. In other words, we got a folder, about four or five folders thick of what the people are saying about Eugene Livingston. We have nothing on what Eugene Livingston had to say about this incident, and the best thing we can do now Eugene is be completely truthful, because it’s over with.¹

In fact, Young had not implicated Livingston in the robbery. The detectives, from the Vallejo, California, police department, made that up out of whole cloth. Yet the police were not necessarily acting unprofessionally; the most commonly used American police interrogation manual sometimes instructs interrogators to lie to suspects or engage in other deceptive ploys to trick them into confessing.² These techniques have even been condoned by the U.S. Supreme Court.

The above monologue may seem familiar to fans of police dramas. Yet consider the monologue and its context anew: is it not strange that in a liberal democracy—where the government ostensibly serves the people—police may break down a man’s door, drag him to a station house, then hold him against his will, in order to tell him lies and insult him? For that matter, as was asked in the introduction, is not the notion of interrogation itself strange? The underlying presumption that one man can have a claim to another man’s secrets flies in the face of common morality and logic, and the practice of eliciting a person’s secrets against his will seems like an exercise from a cruder age.

We need a framework for understanding what police are allowed to do generally in order to assess what it is morally acceptable for police to do in interrogation—a framework of police ethics. For that, we need two types of intellectual building blocks: first, a general account of just coercion identifying when it is acceptable for a person to force another person to do something against his or her will and, second, political theory, some account of what states may do to their inhabitants, including sometimes forcing them to do things against their wishes.

Political theory will be addressed in chapter 2. This chapter will address just coercion on a basic level apart from policing contexts in order to isolate the foundational issues involved in police interrogation. The various elements of this account of just coercion will later be used to resolve particular questions regarding police and military ethics. This chapter will extend theories of self-defense from traditional contexts of assault to broader contexts involving other types of rights violations. I will first outline in fairly general terms the conception of rights to be used in this project and then articulate the grounds for just coercion. This account of just coercion will strike a balance between an approach concerned with the defender’s rights alone and an approach concerned solely with an objective consideration of the defensive action’s consequences. The account will also address the rights of the offender and determine the status of third parties witnessing rights violations.

Some caveats about the scope and method of chapters 1 and 2: the discussion of rights and political obligation in these chapters are developed to the level of complexity I think necessary to adequately address the moral and political issues related to interrogation. Extended defenses of the foundational positions will be omitted in favor of more extended treatment of applied matters in the rest of Part 1. I have also tried to strike a balance in prose style in these foundational chapters between the precision expected by specialists and the nontechnical language desired by nonspecialists. The first two chapters are the most technical and abstract, dealing with fundamental questions in moral and political philosophy. A book’s chapters are meant to be read in order, but readers who are more interested in the concrete application of moral theory in policing and war fighting contexts than in broader philosophical questions of rights, autonomy, and state power may wish to skip ahead now to chapter 3.

The “rule deontological” framework I will be using in this book draws from the common stock of ideas endorsed by the medieval theologian St. Thomas Aquinas and the Enlightenment philosophers Thomas Hobbes, John Locke, Jean-Jacques Rousseau, and Immanuel Kant.³ The framework belongs to a family of moral systems that judges actions based on their conformity to universally binding rules (rules that may be geared toward the protection of people’s rights) rather than based on the actions’ consequences. The exposition concerning coercion below owes most in its idiom to Kant, and focuses in places on specific arguments Kant made, but it might have couched in the vocabulary of one of the other thinkers or of various modern authors.⁴ The conclusions I reach about police powers and interrogation could have likely been reached with different starting points, but I prefer Kant’s idiom because of its precision and his general approach because it marries well with the diverse approaches to interrogation in the philosophical and legal literature.

Rights and Coercion

A central moral claim made by deontological thinkers is that human beings are autonomous, meaning there are core areas of thought and action individuals should govern for themselves, all other things being equal. The deeds or titles to self-governance with respect to these areas of thought and action are rights. These titles grant their owners the liberty to think or act as they choose in these areas without uninvited interference from others. On the moral understanding of autonomy to be employed in this chapter, moral rights are understood to be a natural part of human beings, rather than conventionally recognized or bestowed on them by some entity like a state. All human beings have these rights, regardless of their citizenship, gender, religion, class, or profession. Moral rights are fostered by persons’ reciprocal recognition of these rights on the parts of others. Political rights (to be discussed in chapter 3) are rights conventionally recognized by a state in self-limitation of its own power as well as by its promise to limit the power of inhabitants with respect to one another. In many cases, political rights overlap with moral ones.

This chapter will address what is owed persons as persons, based on the concepts of moral autonomy and rights, abstracted from any particular empirical (i.e., concrete, real-world) setting. In most empirical settings, in the context of a state, moral rights are relevant to private citizens’ interpersonal behavior. No moral right is absolute in a system where all have equal rights; instead, every person’s moral rights are dependent on and limited to the reciprocal recognition of the same rights, and same scope of rights exercise, for others.⁵ This requires further explanation. If one has a moral right in a particular area, then it is an area properly self-governed instead of governed by others. For example, if we say that the right to own private property entails the right to own a car, that right might protect the following choices: whether or not to buy a car; what type of car to buy; and when and where to drive it. Just the same, one may not drive one’s car anywhere or in any manner one wishes. The only coherent and stable picture of a society of independently self-directing agents is one in which all issue similar self-directions, at least on major issues where agents’ behavior might come into conflict. For example, the only safe way for independently controlled automobiles to simultaneously travel in the same lane in close proximity to one another is if they all travel in the same direction and at roughly the same speed. Each driver is free to choose whether or not to drive, what to drive, and where to go but must follow certain rules enabling all other car owners to enjoy the same scope of freedom. Such behavior allows for all to get to where they want to go: provided they observe the same traffic rules, Smith’s success at reaching his destination does not prevent Jones from reaching hers. The will to perform morally permissible actions (like “driving in accordance with traffic rules”) can be universalized, meaning driving to a destination is still possible even if everyone desires to do the same—the idea of driving to a destination has not been rendered absurd by everyone in principle wishing to drive.⁶

Morally upright people, who will be defined here as people who respect other’s rights, must in turn be treated deferentially by others, afforded the space to make their own decisions, and ford their way through the world. They can be trusted with this freedom because they are only going to embark on actions consistent with respect for others’ rights. This respectful behavior does nothing to reduce others’ opportunities to achieve their legitimate aims. Again, Smith’s successful car trip does not prevent Jones from reaching her destination as well.

By contrast, Smith’s fellow highway travelers would have cause to object if he broke the rules that accommodate everyone’s freedom and, for example, drove south in a northbound lane. Generally then, one’s rights are bounded where universal accord would break down—for those actions where all could not logically consent to one’s actions, because such actions would be incoherent (i.e., self-contradictory or self-defeating) if universally adopted. Illicit actions—rights violations—then are those that could only issue from unreal “private rights areas,” which one enjoys to the exclusion of others. These “private rights” foster self-direction depending parasitically on the majority’s morally upright behavior for its success. For example, those lunatics one sees on the highway who weave in between other cars at a high rate of speed would be unable to drive this way if everyone else drove in the same unpredictable manner. The reckless drivers depend on the majority driving at a constant rate and observing several car lengths’ distance so they can slalom past. Another example: the success of slander depends on the majority of actors speaking truthfully about others; if people habitually lied about other’s character, no one would believe the slanderous things said by a character assassin. The slanderer grants himself a liberty—gives himself a right—that he cannot coherently grant others. Moreover, his slander likely inhibits his victim’s ability to be heard and received on the same footing as the slanderer.

Rights violations often entail the use of coercion, which for our purposes will be defined as behavior where the recipient of the action is treated as a means to the actor’s goal—instead of as a free, independent person whose preferences deserve respect—usually by restricting or controlling the victim’s ability to do what he wants. Coercive measures include physical force, threats, extortion, emotional manipulation, lying, and other forms of deception.

The rights violator’s failure to behave morally cedes his otherwise legitimate expectation to be treated with deference by others. (The reason for this formal phrasing will be explained below.) Since the ground for moral rights is reciprocal respect—rendered “horizontally” by rights-holders to other rights-holders like the strands of a web, rather than based “vertically” on a foundation like the bricks of a pyramid—the revocation of reciprocal respect eliminates the support for the rights. As a right is a claim against all other actors’ claims (to unrestricted action), limiting their scope, the partial or complete voiding of a right by a rights violator exposes him to the claims of all other actors. They are now unrestrained in their behavior toward the violator to the extent he has ceded the otherwise legitimate expectation that his right(s) in the relevant area(s) will be respected. The rights violator cannot expect others to respect a “right” he was claiming to have for himself alone and that came at others’ expense. The rights violator was not self-limiting his own freedom in deference to his neighbor’s rights, so both the basis for respecting the violator’s rights and the incentive for self-restraint is lost. His neighbors can now do things to him that would otherwise be impermissible, such as exercising some form of coercion. It may in fact be practically necessary to treat him prudentially,⁷ as a means, as someone whose choices do not matter to the actor, in order to restrain his rights-violating actions.⁸ As Kant puts it, a right can be thought of as a “title to coerce” or, as H. L. A. Hart writes, “a special justification for interference with another’s freedom.”⁹

A rights violator is not wronged if his victim or a proxy deals coercively with him to the extent necessary to restore the previolation status quo. Pushing him back to his original level of freedom does him no moral injury because the “extra” freedom he seized while violating another’s rights was not a freedom he was due (a freedom consistent with all others having the same freedom). For example, if my neighbor and I have equal-sized, adjacent gardens, and he starts planting his crops in my plot without permission, I do not wrong him by demanding—or forcing him, if he refuses—to return to his land (taking his broccoli with him).

While in many instances, an agent will exercise his rights without any challenge or resistance from others, the fact that the relevant actions fall under the title of a “right” means that the agent can legitimately expect the following. (1) Others will restrict their own freedom to make room for the agent’s rights exercise. (2) The agent may demand that others do this (and need not request, because they would not be giving something of their own but something that is already his). (3) The agent does not exceed the scope of his rights when coercing recalcitrant neighbors to respect the areas of freedom that were his all along. Coercing a rights violator to the status quo ante restores the freedom of the offended party but is also consistent with the freedom of the coerced party. This follows because the coercion is expressive of the limitations to the freedom of all necessary for the universal enjoyment of equal rights—a regime to which the coerced party belongs and from which he presumably benefited.

Specifications and Caveats

I will now explore the limits and applications of the foregoing account of just coercion. This account of just coercion is not meant...