Random Thoughts

Ethics, Torture, Utilitarianism and Law

A frequently referred to thought experiment (Gedanke-Versuch) problem tested on many cultures and ethnic groups is used to prove that there is a uniform ethics module in the human brain. The problem is as follows.

You observe a rail car careening down a slope and conclude that there is a brake or operator failure. You happen to be standing close to, but outside the rail track within immediate access to a switch that could divert the railcar to a side track. In the simplest version, on the rail path, the car is destined to take if you do not throw the switch to divert it are five workers. On the alternative path to which you could divert the railcar if you throw the switch is a solitary worker. What do you do?

Another relevant problem much quoted in recent debate on torture is the 'Ticking Time Bomb' one. You have captured a terrorist who knows precisely where and when a nuclear bomb planted by his group is going to detonate soon. Your standard methods of interrogation fail. You have limited time. Do you torture him or used enhanced interrogation techniques as Bush, Cheney, Rumsfeld, Bybee, Yoo etc. would say? 

The third problem is that a pension fund for the elderly has bought senior secured debt of a company about to go bankrupt. A widow whose husband got cancer from exposure to asbestos, while working for the same company, hired a mesothelioma attorney and has filed a claim against the company for damages. The widow is destitute as all the couple's assets have been used up in the treatment of her husband's cancer, caused by the negligence of the company. You as president of the country can use public money to refinance the company, force a merger of the company and save the jobs of ten thousand workers, but it would require the transfer of all meaningful assets of the company into a new entity, leaving little or nothing to be given to the senior secured debt holders or the wronged widow. What do you do? 

According to some philosophers and many respondents to the dilemma, you divert the out of control railcar to the sidetrack, killing one person but saving the lives of five. For me it is a specious choice. Let me explain. You have observed the railcar from a distance before you were able to determine that it was out of control. No railcar on a track travels at faster than 750 miles per hour (Speed of sound in air) even without brakes. If you yelled loudly enough, your cry of warning would reach the five on the main track and one on the side track and allow enough time for them to jump off the track safely.

The first problem has multiple and higher levels of complication. In a jacked up version, the five on the main track and the one on the sidetrack are all tied down to the track and unable to get off the track. Again, most if not all people would divert the railcar and cause one death rather than five. Once again the contrived and constrained decision may not be the correct one. If the railcar is far away enough, you could throw the switch and run and free the solitary tied up man. He would be saved by you and the five by diversion of the railcar.

You are playing god by bringing about the death of one man not in direct harm's way and would like to justify your actions as ethically correct. This is not an ethical decision but a utilitarianism based one, because it causes greater good for more at the cost of greater evil for one. Let us carry the problem to a greater complexity. This time you are on a terrace exactly overlooking the tracks and next to you, sitting on the parapet is a big fat man who could stop or derail the trolley car, if you pushed the big fat man over the parapet onto the track. He would be dead or paralyzed by the fall on the tracks or would be killed by the impact of the trolley and stop it. Would you do that? If so why, if not why not? Does it also not cause the death of one innocent man to save five? Many if not most respondents and philosophers say they won't do it as it would be wrong. Others say those who would pull the switch should push the big fat man. In fact, the US and many nations at war justify death and destruction of civilians, sewage, water and electrical plants by aerial bombing, as acceptable and label it as unintended collateral damage, rather than a war crime which is what it is (just like torture is called enhanced interrogation technique).

The ticking time bomb problem is also a red herring, because of unreasonable and false assumptions involved. As our Don Torquemada would say, there are known unknowns and unknown unknowns that should have prevented our ruling simpletons and depraved officials from committing the grievous errors. There is no certain knowledge that a nuclear weapon is on the verge of being detonated and it is not known whether your captured terrorist knows any details about it. There is also the simple common sense analysis often completely missing in most American leaders and officials that Islamic terrorists who are willing to indulge in definitive suicide bombing with predetermined malice and fully aware of the fatal consequence to them, are hardly likely to wilt and bare all under torture, if they know that within hours at most, they will be able to achieve their malignant desire of really harming America. The terrorist would purposely give false information and delay until the bomb went off. Most if not all would opt for martyrdom. 

The unwillingness of Pakistan's tribal areas to even consider betraying Al Qaeda leaders for eight years despite a price of millions of dollars on their heads, reveals the idiocy of American intelligence agencies just like their idiotic prediction of Ahmedinejad's defeat in the Iranian elections and inability to protect Dr. Tiller from fanatic anti-abortion killers.. Only Lebanese elections, Pakistani and Indian leaders can be bought for pennies. This philosophical problem doesn't bother America as fully half of Americans in a sample survey see nothing wrong with torturing prisoners. There is an apocryphal story that is attributed to some defunct newspaper or Mark Twain, who said that half the American legislators are idiots. The inmates of the Washington zoo protested vehemently and insisted on a retraction and apology. At which, Mark Twain is said to have responded, 'I am sorry for my previous statement. I stand corrected, half of the American legislators are not idiots. The lawmakers then beamed in smug satisfaction with complete unawareness of what fools they had been made.

Coming to the last problem, it is the Chrysler case. Once again the Supreme Kangaroo Court of the US in its questionable wisdom threw out the case on the basis of trifling effects on the public good. As I said that is not law, it is utilitarianism at best and judgment by polls and public sentiment at worst. Senior secured creditors under US law have first priority claims. The very existence and birth of this nation and the Anglo-Saxon justice system is enshrined in the temple of protection of property over people. It is futile to accept any judicial thinking from a court with a history of convenient twisting of the law from Madison vs. Marbury, Dred Scott, Plessy vs. Ferguson, Lochner, Buck, Schenck vs. US, about face on capital punishment and others too many to enumerate.

Functional MRI studies of the brain of subjects during such complex difficult choices have shown the importance of the emotional and rational pathways of the human brain and their higher executive areas in the prefrontal cortex as arbiters of our moral judgment. The case of Phineas Gage and study of frontal leucotomy cases provide wonderful insights, as do split brain case studies for perception, personality and confabulation. What is even more interesting in studies of ethical or considerate behavior is the remarkable influence of priming by recently good or bad experiences prior to the test or real life situation. We are all as bad as the Pentagon generals. We fight the next war as a reaction to the recent past one and thus are the architects of our follies, which cause greater or newer disasters to the nation or our lives and also to the world and innocent others. 


More by :  Gaurang Bhatt, MD

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