I was interested in Lisa LaPlante’s post on torture. It came hard upon my attendance at a conference on Christian Realism in which the matter of hard choices got quite the attention. My comment got so long that I’ve decided to make it a post. I offer it here in the interest of stirring up some controversy to wake us from the haze of our tryptophan coma.
Lisa, commenting on the recent film Men Who Stare At Goats, asks if we are Cassidy or Hooper? I haven’t seen the movie, but the question strikes me as too simple. We are both and perhaps we should be.
What I have found frustrating in the debate over torture and interrogation is the failure of both “sides” to draw potentially relevant distinctions and to speak clearly. For example, what does it mean to say that the Bush administration “regularly” engaged in torture? There is certainly no evidence that it “regularly” engaged in waterboarding. To make that claim seems to require the adoption of a highly controverted definition of torture. (In fact, there does not even seem to be a consensus that waterboarding is torture, although I think it is.)
This is not to say that it is unreasonable to regard techniques such as sleep deprivation or stress positions as torture – only that the question is subject to dispute and may depend heavily on an assessment of rather unpleasant facts.
Indeed, it is the unpleasant – the “icky” – nature of the question that often causes us to retreat behind labels like “torture” or “enhanced interrogation.” Indeed, it is the engagement with the question that makes the DOJ memos so hard to read.
There are two ways to avoid those questions. At one end of the spectrum, some argue that the imposition of any pain or significant physical discomfort so dehumanizes both the interrogator and the interrogated that it ought never to be done. For such folks, the threshold for what constitutes torture may be relatively low (or at least much lower than that reflected in the DOJ memos) and it is largely irrelevant whether torture “works.” In fact, it seems to me that this position is akin to pacifism in that it completely rejects consequentialist reasoning.
At the other end are those that regard the latter perspective as a form of moral cowardice. On this view, the infliction of pain or discomfort on a wrongdoer might be justified if it is sufficiently likely to save innocent lives. For these folks, the question of whether torture – or, as they will call it, “enhanced interrogation” – works is of primary importance.
The problem, I think, is that most people are somewhere between these two views. They acknowledge the dehumanizing nature of torture but might allow certain forms of “enhanced interrogation” if it is sufficiently likely to avoid dire harm. This is where we encounter pragmatic modifications of our extreme views and have to face the facts on the ground.
It is, I concede, an unsettling prospect. It is uncomfortable to embark on a road in which one weighs the benefits of torture against its harm. Can we really trust ourselves to follow any type of moral compass when faced with grave danger? Perhaps it is safer to just place the entire subject out of bounds.
But it seems fantastical to think that any society would abjure torture in all circumstances. As Richard Posner has argued, if a nuclear bomb is hidden in Times Square and we’ve caught someone who knows where it is, that person will be tortured if necessary. This brings us to a set of hypotheticals that have come to be referred to as “ticking time bomb” scenarios.
It seems to me that very few people are willing to say that, rather than waterboard a suspect, we ought to let the ticking time bomb explode. Rather, the arguments seem to be that a “ticking time bomb” scenario “never happens” or that the infliction of pain or discomfort “won’t work.”
The first objection is almost certainly false. I acknowledge that – thank God – we don’t live in an episode of 24. A ticking time bomb scenario may certainly be rare – it would most likely involve apprehending a terrorist suspect in a plot that is underway – but I see no reason to assume that it “can’t happen.”
The second objection also strikes me as false. If, as a categorical matter, the infliction of pain or physical discomfort “never works,” we would not expect to see intelligence agencies wishing, even if only in extreme circumstances, to use it. I am always skeptical of arguments that are based on the assumption that informed actors will continue to behave irrationally. When seeking objectively verifiable information (the interrogated knows he cannot get away with a lie) to avert a developing threat, it may well work. More accurately, it may have a sufficient probability of working in relationship to other potential responses. It may not be possible – there may be no time – to obtain more information from computer hard drives or wiretapping or “empathetic” interrogation.
Some people, like Charles Krauthammer, would extend the ticking time bomb scenarios to circumstances in which a captive person is believed to have extremely valuable information that may avert very substantial threats in which the length of the fuse is uncertain. I take that Krauthammer might argue that in these – still rare – situations, there may be some “enhanced interrogation” techniques that can be regarded as torture (he doesn’t shrink from that term) – such as waterboarding – that might be justified. If we allow for the infliction of pain or physical discomfort in these circumstances, the spectre of the slippery slope becomes larger and closer.
I don’t intend to get into a debate about whether any of these situations were present in any Bush era interrogations. There seems to be substantial difference of opinion on that and I don’t pretend to know who is right.
It does seem to me that well undertaken moral reasoning is likely to lead to reasonable arguments in favor of torture only in the rare circumstances. But it also seems to me that the matter is not quite black and white. It is not a binary choice between Hooper and Cassidy or, to use some popular entertainment that I’ve seen, between Jack Bauer and Senator Mayer. Some might argue that it is safer to have a categorical prohibition of torture knowing that this prohibition will be ignored in extreme circumstances. Maybe. But I tend to believe that the rule of law is better served by intentional policy that sees the world as it is and not how we wish it to be. If we are really willing to let the ticking time bomb explode, we should say so. If we are really willing to allow exceptions to a categorical prohibition of torture, we should say that and be willing to define – and properly limit – those exceptions.
“At the other end are those that regard the latter perspective as a form of moral cowardice. On this view, the infliction of pain or discomfort on a wrongdoer might be justified if it is sufficiently likely to save innocent lives. For these folks, the question of whether torture – or, as they will call it, ”enhanced interrogation” – works is of primary importance.”
I would like to write more about this topic another day. But for now I just want to disagree about the characterization of the two ends of the spectrum. I guess I am at the “it ought never to be done” end of the spectrum. Frankly, even the title of your post, “Musing about torture,” struck me as a bit offensive because I think torture is too horrific a subject to be “mused” about, though I can’t imagine you intended any sense of being “inspired” by the subject.
In conversations about torture, I think the “other end of the spectrum” is not merely the claim that “the infliction of pain or discomfort on a wrongdoer might be justified if it is sufficiently likely to save innocent lives.” Instead, the other, unsettling end of the spectrum is a sort of lurid fascination with torture, an irrational obsession with it, an insistence on its possibilities to resolve horrible hypotheticals like the “ticking time bomb” scenario. A spectrum that started raising its voice in the first days and weeks after 9/11, when lunch conversations about the 9/11 attackers bizarrely veered off into philosophizing about whether the organizers (none of whom had even been captured yet) should be tortured.
In short, I would characterize the spectrum on torture this way, instead: at one end are people like me who abhor torture and oppose it absolutely, indeed, can barely bring themselves to think of the reality of it without feeling a little nauseated; while at the other end are people who think of torture as a sort of “key” to controlling the will of other human beings, a tactic that must be preserved for states of war or public emergency, moments when we must get information at all costs, in other words, a “necessary evil.”
Sometimes I think that the problem is that these two camps have irreconcilable conceptions of human nature. My own opinions about torture and its relationship with (and effects on) human nature were skewed by my experience of working with refugees, many of whom had survived torture. The experience of being completely dehumanized, literally treated as less than an animal, often seemed to have destroyed their personalities, permanently. While I greatly admire those like John McCain (and many of my former clients) who manage to persevere and build new lives despite the experience, still, I think most people who suffer severe torture are never really the same.
In view of the shattered states of mind of torture victims I met years after their torture experience, I honestly cannot actually imagine what their mental states must have been like in the midst of the physical pain and horror of the torture itself. And I thank God for that.
So, based on that experience, it is difficult for me to imagine how torture can, as a practical matter, be very useful. It seems likely to be countereffective, in the vast majority of actual situations. I figure that is why, for instance, the Army Field Manual states, “Experience indicates that the use of force is not necessary to gain the cooperation of sources for interrogation. Therefore, the use of force is a poor technique, as it yields unreliable results, may damage subsequent collection efforts, and can induce the source to say whatever he thinks the interrogator wants to hear.” – Army Field Manual 34-35, Chapter 1. Precisely.
So, like the vast majority of Americans (see and also and also) and especially this really interesting paper; and like the Catholic catechism, I abhor torture not only because I believe it to be immoral, and to be a denial of the humanity of the victim and the torturer too; but also because it seems unlikely to do any good, anyway.
I realize you have already given your response: “If, as a categorical matter, the infliction of pain or physical discomfort “never works,” we would not expect to see intelligence agencies wishing, even if only in extreme circumstances, to use it.” Unfortunately, I am not so optimistic about human nature in that respect.
Professor Slavin,
As you mention the Catholic Catechism, I wish to add this comment:
The Catechism of the Catholic Church (CCC) states at § 2297: “Torture which uses physical or moral violence to extract confessions, punish the guilty, frighten opponents, or satisfy hatred is contrary to respect for the person and for human dignity.”
A strict grammatical reading of 2297 would suggest that torture is not per se a violation of human dignity. The relative clause, which starts after “torture” and concludes with “hatred” (ironic?), is restrictive. There are no commas. As such, there could be torture which does not use physical or moral violence, and so is not contrary to respect for the person. I cannot think of any such, though. Perhaps psychological violence?
However, the original Latin text has commas, and thus a nonrestrictive clause: “Cruciatus**, qui physica vel morali utitur violentia ad confessiones extorquendas, ad culpabiles puniendos, ad adversarios terrendos, ad odium satiandum, observantiae personae et dignitati humanae est contrarius.” Thus, I read the CCC, at least in the Latin, as holding that all torture violates human dignity.
**For Hogwarts fans, cruciatus is the Latin for “torture” or “torment,” based on crux, the cross used to crucify. See the Book of Revelation 9.5: The infernal locusts released after the fifth angel blew its trumpet were given power “not to kill them, but to torment [cruciarentur] them for five months. Their torment [cruciatus] was like the torment [cruciatus] of a scorpion, when it strikes a man.”
Jessica
I don’t know that you should be offended. “Musing” in the sense that I used the term does not imply the inspiration by the subject about which one muses. In fact, I find little about the matter particulary inspiring.
I understand – indeed it was the point of my post to address – the idea that torture or interrogation techniques that inflict pain or discomfort are too horrible to contemplate. I am not persuaded that revulsion at horrible things helps us much in the limited category of cases I describe. Just as we are horrified by torture, there are those who are horrified by the idea that we would allow the slaughter of innocents rather than pour water on a terrorist’s face – as awful an experience that is.
To say that this circumstance is unlikely or that in the vast majority of cases torture would be countereffective or to cite opinion polls is, with respect, nonresponsive. I agree with all of those things. I can’t imagine any defensible moral calculus that could justify torture in all but a passingly small number of cases.
And perhaps not even in those cases. Maybe the horrific nature of these techniques is such that it ought never to be done. The Catholic Catechism so concludes and, by way of analogy, there are those who believe that war – which is also horrific and dehumanizing – can never be justified.
But, in my view, if you’re going to hold that position, you ought to own the consequences. If you want to let the Nazis roll over Europe, you should be prepared to justify that. If you want to let the ticking time bomb explode, you should say why.
I agree with you – and your experience undoubtedly reflects – that virtually all of the actual uses of torture in the world cannot possibly be justified. Perhaps, for those who have engaged in such acts, your characterization of the “other side” as having a “lurid fascination” with torture and control is justified.
But that view – if it can be called a view – is not the debate that I described. I think the people that should be engaged are Richard Posner, Alan Dershowitz and John Yoo, not Kim Jung-Il and Heinrich Himmler. My point is not to dispute the claim that torture can almost never be justified or even to defend the Bush administration’s use of waterboarding. It is to engage the categorical prohibition of certain forms of interrogation that involve the infliction of pain or discomfort and how such a categorical prohibition must be justifed.
Hi, Rick,
First, and with respect to you, too, I still disagree about “musing,” in that I think it has a whimsical connotation that is just inappropriate here. Would you say “musing about rape”? “Musing about child abuse”? The whole point I was trying to convey in my comment, in a way, comes down to that. Why does it nonetheless seem okay to say “Musing about Torture”? I think that the answer to that is related to, further down the spectrum, the lurid fascination.
With regard to my own view, I’ll be more specific. I, myself, think that torture should be absolutely barred, if torture is defined as it is under the Convention against Torture, i.e., “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, . . . ”
To me, waterboarding does fit this definition, because when I have heard clients describe waterboarding, it is not having water poured on your face, it is repeated almost-drowning either while being physically held down or by being tied to something. It hurts a lot and is really terrifying, especially if you know that sometimes other people have died during interrogation.
It’s similar, in that way, to another form of torture I’ve heard clients describe, which is being blindfolded, hearing someone else near you cry out and then be shot and go silent, and then feeling the butt of the gun at your own head, though in the end it turns out that there is no bullet when the trigger is pulled.
I also think that severe beatings, as apparently happened in Guantanamo (based on the photos of bloody trails where bodies were dragged away) are torture.
Despite my revulsion, I can, and have, handled hearing about and talking about torture in very specific detail. Before that experience I honestly couldn’t imagine the sorts of horrific violence that human beings can do to other human beings when they think it’s necessary to do so to save their society.
And that’s why I think it should be categorically prohibited. Even if you think you know someone knows something, what if you are wrong? Some of my former clients were, wrongly (at least, that’s what our government determined, when it gave them asylum), accused of being terrorists involved with violence. Their captors and interrogators asked them the same sorts of questions that, I imagine, our soldiers and interrogators asked detainees at Guantanamo. I don’t think they should have done that, even if there is some chance some of the detainees did have information.
So, to the hard part. You want me to come out and say that, even if I knew that, for instance, a kidnapper was holding my son hostage and wouldn’t say where, and might say so if we waterboarded him, I’d still think it was wrong. Okay, yes, I would, I would still think it should be prohibited, that we should try other, non-violent methods instead. I don’t know whether I’d have the courage of my convictions, in that moment. That’s a different question.
And I use that example to point out that, that is also my problem. If torture was okay at Guantanamo, or in very few instances, why don’t those include instances in our domestic criminal justice system? Indeed, the ticking time bomb scenario is more likely to arise here, isn’t it?
Finally, to throw another statistic at you, did you read that interesting Reed College study I linked to? There they discussed a poll done by the US government (I forget which agency, I apologize) of Marines and other soldiers in Iraq. Asked whether they support the use of torture in specific instances, somewhat like the ticking bomb scenario, the majority opposed it. A higher majority opposed it than among the American public at large.
This serves to strengthen my sense that the closer one has come to the actual experience of torture, the less likely one is to hypothesize that it may be necessary, in some small category of cases. It’s not. It’s always wrong. That’s my belief.
Jessica
I was using the phrase in the sense of a “calm and extended contemplation” that is, in some sense, preliminary. I agree that there is nothing whimsical about the subject and I suppose that, in that sense, I might well muse about “rape and the use of sex as degradation”? How does that happen? What suspension of human empathy is required and by what perversion of reason and conscience can that happen?
I did not want you to say anything about what you would do in a situation where your child was at risk. I dislike personalizing things in that way(see, e.g., asking Mike Dukakis if he would support capital punishment for someone who raped and murdered his wife).
But I do think that one can’t simply assume away the hard parts of one’s position and that’s what prompted my post. To your credit, you aren’t trying to do that.
You do raise the possibility (“what if you are wrong”)of a prudential objection. Even if we can imagine a situation where torture might be justified, we can’t imagine that we will be able to identify it and distinguish it from less compelling circumstances. I take it that something like this happened in Israel where the Supreme Court ultimately concluded that the “ticking time bomb” scenario had swallowed the “no torture” rule.
Against this is the Dershowitz argument that, since we know that torture will happen, we ought to carefully circumscribe and police its use. Maybe he’s right or, maybe we should understand, that our best interests are served by an categorical prohibition even if we understand that – in extreme circumstances – the law will be violated.
That raises the question of what to do under those circumstances (assuming they remain limited to the extreme)? Does the rule of law require punishment of those involved or do we actually harm the rule of law by attempting to apply it under circumstances where it’s not reasonable to expect that it will be followed (i.e., the nuclear bomb in Times Square)? Because no one really wants to punish the transgressor, the rule of law winds up being twisted to avoid prosecution.
But that’s a whole other debate.