![\"1465e9731e43ae5a\"](\"http:\/\/law.marquette.edu\/facultyblog\/wp-content\/uploads\/2009\/11\/1465e9731e43ae5a.jpg\" "\\"1465e9731e43ae5a\\"")
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.<\/p>\n
Lisa, commenting on the recent film Men Who Stare At Goats,<\/em> asks if we are\u00a0Cassidy or Hooper? I haven\u2019t seen the movie, but the question strikes me as too simple. We are\u00a0 both and perhaps we should be.<\/p>\n What I have found frustrating in the debate over torture and interrogation is the failure of both \u201csides\u201d to draw potentially relevant distinctions and to speak clearly. For example, what does it mean to say that the Bush administration \u201cregularly\u201d engaged in torture?\u00a0There is certainly no evidence that it \u201cregularly\u201d 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.)<\/p>\n This is not to say that it is unreasonable to regard techniques such as sleep deprivation or stress positions as torture \u2013 only that the question is subject to dispute and may depend heavily on an assessment of rather unpleasant facts.<\/p>\n Indeed, it is the unpleasant \u2013 the \u201cicky\u201d \u2013 nature of the question that often causes us to retreat behind labels like \u201ctorture\u201d or \u201cenhanced interrogation.\u201d Indeed, it is the engagement with the question that makes the DOJ memos so hard to read.<\/p>\n There are two ways to avoid those questions. At one end of the spectrum,\u00a0some argue that the imposition of any pain or significant physical discomfort so dehumanizes both the interrogator and the interrogated that\u00a0it 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 \u201cworks.\u201d In fact, it seems to me that this position is akin to pacifism in that it completely rejects consequentialist reasoning.<\/p>\n At the other end are\u00a0those 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,\u00a0“enhanced interrogation” –\u00a0works is of primary importance.<\/p>\n The problem, I think, is that most people are somewhere between these two views.\u00a0They acknowledge the dehumanizing nature of torture but might allow certain forms of \u201cenhanced interrogation\u201d 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.<\/p>\n 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.<\/p>\n 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\u2019ve caught someone who knows where it is, that person will <\/em>be tortured if necessary. This brings us to a set of hypotheticals that have come to be referred to as \u201cticking time bomb\u201d scenarios.<\/p>\n 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 \u201cticking time bomb\u201d scenario \u201cnever happens\u201d or that the infliction of pain or discomfort \u201cwon\u2019t work.\u201d<\/p>\n The first objection is almost certainly false. I acknowledge that – thank God – we don’t live in an episode of 24<\/em>. A ticking time bomb scenario may certainly be rare \u2013 it would most likely involve apprehending a terrorist suspect in a plot that is underway \u2013 but I see no reason to assume that it \u201ccan\u2019t<\/em> happen.\u201d<\/p>\n The second objection also strikes me as false. If, as a categorical matter, the infliction of pain or physical discomfort \u201cnever works,\u201d 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 \u2013 there may be no time – to obtain more information from computer hard drives or wiretapping or \u201cempathetic\u201d interrogation.<\/p>\n 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.<\/p>\n I don’t intend to get into a debate about whether\u00a0any of these situations were present in any Bush era interrogations. There seems to be substantial difference of opinion on that and I don\u2019t pretend to know who is right.<\/p>\n 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\u2019ve seen, between Jack Bauer and Senator Mayer. Some might argue\u00a0that 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\u00a0how 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.<\/p>\n","protected":false},"excerpt":{"rendered":" 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 […]<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[66],"tags":[],"class_list":["post-8229","post","type-post","status-publish","format-standard","hentry","category-human-rights","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/8229","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=8229"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/8229\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=8229"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=8229"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=8229"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}