Moral Unseriousness and Torture
Politics
| January 12, 2010
| Tim
I do think there are reasonable arguments which can be made against, say, waterboarding. I just don't see them, often...
A thoughtful Jonah Goldberg writes:
I'm pretty reluctant to wade back into the torture/waterboarding debate again myself. I don't much like the idea of waterboarding captives and, given my druthers, I'd be perfectly happy if the US never did it again (ideally because it never needed to)....
But I still have big problem with how the "is it torture?" argument tends to dominate these debates. Torture is a taboo word, and for good reason. Like incest, bigotry or, in some circles, censorship, the word torture separates good from evil, right from wrong. Once we decide something is torture, we end the debate over what the right policy should be. The right policy is to never torture.
That's one reason why supporters of waterboarding reject the term torture, preferring "enhanced interrogation methods" or some such; because conceding that it's torture is like surrendering. It's also why opponents of waterboarding are so intent to win the argument that it is torture. I don't doubt they believe it, but they also recognize that the taboo value of the term is their strongest weapon against the practice. They certainly aren't going to win much ground trying to muster sympathy for Khalid Sheikh Mohammed....
Absolutely right. One of the things which bothers me most about the "torture" debate is the way most anti-"torture" advocates seem to exude moral unseriousness.
Take waterboarding, for example. One can argue — plausibly and respectably, I think — that waterboarding constitutes a form of torture. Yet only a tiny fraction of the "enhanced interrogation" (three individuals, if I'm not mistaken) has involved waterboarding. Opponents of "torture" have refused to provide a clear alternative boundary, and seem to have lumped every possible form of discomfort — including loss of sleep, uncomfortable quarters, a woman pretending to have menstrual blood on her finger — in as well, all apparently equally being "torture." I'd like to see those who complained about torture actually elucidate a detailed, alternative vision. Is it the current protocol, where we grant a captured terrorist the same Miranda rights a US citizen receives, and can only use promises of a short and/or cushy incarceration as a carrot to exchange for intelligence? Are they willing to own up to the results of that vision?
And are they willing to countenance a similar application of "torture" being applied domestically? Isn't being handcuffed thus also a form of "torture"? How about being made to wear rather un-warm prison garb and sleep on very thin mattresses? And surely solitary confinement is "torture" as well. Is that really a slippery slope they're prepared to unleash on our domestic law enforcement organizations? If not, again, where is that line?
Another example of moral unseriousness is the failure to admit that such techniques have been successful at times. "Oh, they only get the person to tell you want you want to hear!" It's true a person can be coerced into signing false confessions. But, if so, how could the accused produce accurate information they didn't know just to please their interrogators? The morally-smug armchair critics I encounter assert no such thing has ever happened, apparently to avoid giving a serious, responsible answer to the very-real "ticking bomb" scenario.
An additional hallmark of moral unseriousness is the demonization of all who disagree — which is another primary anti-"torture" tactic. Yes, of course: there are no reasonable people who could ever fail to come to your precise conclusion! They must certainly be acting out of bad motives. (What bad motives? We never hear. They just unaccountably want to embrace evil.)
Yet another apparently thoughtless argument is that if we "torture" them, then they'll torture our people if captured. Answer: Um, have you seen the video of Daniel Pearl's death? Are you aware of how our CIA guys were treated when captured in Lebanon? Are you aware the extremists are already in favor of mass murder, writ large? Are you aware of the way the Taliban treated people, long before 9/11? Are you aware terrorists put rat-poison laced nails in suicide bombs to ensure innocent men, women, and children will suffer as long as possible before dying?
Perhaps this argument could be made more effectively, but, as it stands, I have trouble accepting detailed psychological models of terrorists from people who seem completely unaware of the nature and past behavior of such.
And then there's the ultimate point, which Jonah, to his credit, raises — a point which has always seemed kind of obvious to me, and yet which seems to invite a quick topic change whenever I raise it. (Jonah has seen the same reaction, apparently...)
No one has ever explained to my satisfaction why torture, or let's say some kinds of torture, is objectively and in all ways worse than killing. Which would you rather happen to you? Would you rather be waterboarded or killed? Which would get you a stiffer criminal penalty, waterboarding someone or murdering them? Why do you think that is? Which do you think deserves the greater criminal penalty?
No kidding! And yet people will say that soldiers have the right to kill someone in the field — make them dead for all eternity — but not to shoot them in the leg to force them to give up information which could save lives. Huh??? Shoot me in the leg, please! In a similar vein, others will declare, with all certainty, that we should never torture. Well, great, are they entirely against all killing by our government, too? Take all of our soldiers off the field? Take guns away from our police? Embrace absolute pacifism? Why is throwing a guy against a wall more morally reprehensible than killing him?
The topic is quickly changed.
Finally, as a Christian, I'd also demand an answer to the bigger question: On what basis do critics of "torture" claim it is morally wrong? If a Christian wants to say: "Well, that's not a Christ-like thing to do", then I could buy that argument — or a similar one from a different faith. Whether right or wrong, it's at least minimally coherent:
a. There are ultimate, non-subjective moral laws,
b. They can be learned through the Christian (or another) tradition,
c. Torture always violates those laws, and
d. It's fine for me to demand my religious beliefs be enshrined in law, and applied to those who do not share them.
But, of course, most those who oppose "torture" aren't coming from such a religious tradition (indeed, quite the opposite), and typically can't offer similarly rational grounds for using words like "right" and "wrong" — an atheist can only mean, by saying "wrong", ultimately: "Well, I personally find it distasteful.", or appeal to common goals or beliefs. (And there's nothing wrong with that, IMO — it's also my preferred way of arguing in public.)
Yet many on the left, who are, in fact, atheists, also denounce others using extreme, absolute, moralistic language ("Bush is evil! Torture is wrong!") — without being able to point, in even the faintest way, to some reason we should believe their idea of "right" and "wrong" is particularly binding. Typically, they're just recycling misunderstood JudeoChristian religious beliefs, without understanding the rather non-atheistic origins of their alleged absolute moral truisms. (And if so, this isn't just an example of unseriousness on a particular topic, it betrays a largely unserious or at least unexamined approach to life and morality as a whole.)
Now I can imagine, if I were opposed to such techniques, how I would argue against them, as an atheist or as a theist. There are certain common-sense, pragmatic arguments one could make. (I don't find them ultimately convincing, but they're at least not stupid arguments.) But I always hate getting the feeling that I have better arguments for the other side then they have. If I'm not deluded, it implies I'm taking their own position far more seriously than they are.
And that's, in a nutshell, what I find so troubling about this "torture" debate.
Good article. To play devil's advocate for a moment; Why can't we waterboard attempted domestic murderers? Don't they sometimes have information that might be helpful to law enforcement? Do we really have to give them early parole, or even outright legal absolution, to get useful information from criminals? How are domestic murderers different than terrorists, particularly domestic terrorists? At least with foreign born terrorists we get to send them overseas when they're released.
No kidding! And yet people will say that soldiers have the right to kill someone in the field — make them dead for all eternity — but not to shoot them in the leg to force them to give up information which could save lives. Huh???
Perhaps this is truly non-nonsensical behavior. But it's also the standard applied to domestic murderers, isn't it?
Good devil's advocation: You raise a great question, the tip of a larger iceberg (or perhaps even several), it seems to me.
One reasonable question, perhaps more to the right than the left: why should their be any difference between the way we treat citizens and non-citizens? If we truly believe in "human rights", then why should they end at the border?
This is particularly a challenge to me, since I personally usually use the "he's not a citizen anyway" argument as to why Miranda rights shouldn't be immediately given to terrorists. (I'm usually just accepting a de facto principle already in place, not necessarily saying it's good or not.)
As a response, I might try to argue that perhaps the people most in jeopardy from a government are its own citizens — thus should, similarly, have the most protections from it. Another response might be that citizens have more obligations and thus could arguably have more privileges. (Ducking the question as to whether Miranda rights are truly natural rights.) A third tact is to agree with the general principle, but wonder if we're going about it all wrong in both cases.
Speaking of which, and getting back to your original challenge: Perhaps you've made a good point. What are the upsides and downsides?
One downside I've always argued: Torture, it seemed to me, dehumanized the torturer (and someone would have to do it) far more than capital punishment — on the grounds that a quick death is easier to watch/inflict than protracted suffering. A state, I believed (until recently) "created monsters" by allowing torture to occur.
This seems to be untrue (bold added):
Do we view criminal behavior as largely attributable to some inherent dispositional flaw, which fortunately neither you nor I have? For example, one would think that government torturers and death squad executioners are inherently sadistic; their crimes simply reflect their inherent vices. Yet government torturers and death squad executioners, according to one study, were not "unusual or deviant in any way prior to practicing their new roles nor were there any persisting deviant tendencies or pathologies among any of them in their years following their work as torturers and executioners." In fact, the Brazilian government weeded out sadists during the training process. Similar findings of normalcy were found in a study of 400 al-Qaeda members.
So perhaps my concern about "creating monsters" is simply wrong.
To recap, what we do today is this: If a murderer or other criminal is caught, we tell him to "lawyer up" and clam up. If the police abuse him, we dismiss even indisputable evidence against him, punishing future victims for wrong police actions, and also allowing the guilty to go free. We also do not punish the police for their misbehavior. If he doesn't want to talk, we offer him less punishment than would otherwise be deserved for his crime. Retrials do not happen because an individual is provably innocent, but only if a mistake was made in his trial.
How many ways is this system wrong?
First, what's the moral difference between "talk, or we'll lock you up for thirty years" (especially in light of the dangers and assaults prisoners face) and "talk, or we'll push your head again into this bucket of freezing water"? Why don't we view imprisonment, or threats of it, as a kind of torture? It certainly is a form of punishment, thus profoundly unpleasant, isn't it?
If I had to choose which way to be wronged, I personally would rather be given the harsh interrogations present at Gitmo, for a limited time, than a long prison sentence — thus I think they're a lesser moral evil, if undeserved, than a long prison sentence.
And why should the police be treated differently than other citizens, when violating laws? If the police assault a man to get info, shouldn't they be punished as if I did so?
Trying to design an alternative, perhaps it should go this way:
1. People have a right not to be harmed or killed, tortured, or forcibly detained (imprisoned) by others.
2. These rights can be forfeit by attempting to wrongly harm, kill, forcibly detain, or torture others.
3. Coerced evidence is unreliable, and cannot be used, directly, to convict anyone of anything. Not because it is immoral, but because it is not evidence. This doesn't mean, however, that any reliable evidence found as a result, cannot be used.
For example, a man is (strongly) suspected of having kidnapped a girl and buried her alive. (Dirty Harry/German scenario.) Police use aggressive interrogation to find where she's buried. His admission, itself, of having killed her is meaningless. The fact of the body, however, and his knowledge of its location, is admissible.
4. Police who wrongfully torture a suspected criminal are subject to similar penalties (perhaps lessened slightly given their job) as anyone else.
5. No interrogation technique should exceed the severity of the expected punishment for that individual's crime. In other words, a man suspected of theft cannot be threatened (in the course of interrogation) using any discomfort or penalty worse than his crime, if convicted, would deserve. If found guilty, his discomfort must count against punishment already served. A man presumed to be innocent thus cannot be threatened under any scenario.
6. Similarly, no interrogation should exceed the expected value of the resulting good. In other words, an almost-surely-guilty murderer's (multiple eyewitnesses saw him trying to light the bomb) life can only be threatened if a similar value (another innocent life) is truly likely to be at stake. (Or perhaps several times as much should be required.)
7. Police/officers may not unilaterally decide when to apply such techniques (INCLUDING threats of prison time in exchange for information!). Except in cases of minimal time (see below) a grand jury, similar in constitution to a trail jury, must be empaneled to hear the evidence and perform a mini-trial to determine that the charges, and proposed positive outcome of threats or interrogations, are at least likely to be reliable. (This could be done very quickly, perhaps even keeping a rotating, small group of citizens on jury duty for a few days for such eventualities.)
8. If time does not allow (the "ticking bomb scenario") the officer may take extreme measures, contingent upon a future finding as described in #7. If the grand jury later finds he or she didn't have probable cause, in additional to the penalties described in #4, he will also be hit with an additional penalty for filing a wrongful accusation. This penalty may be applied even if the grand jury only finds he acted too quickly, but that the interrogation could have been used.
9. All such acts should be documented and available as a matter of public record, although a time delay can be imposed to protect ongoing investigations. (Perhaps it should be taped, even — some deterrent effect possible there, too.) Acts performed off the record are always illegal. The identities of those carrying out such acts, if held to be done rightly, should be protected.
10. Perhaps plea bargains should be illegal or scaled back. (I've heard Alaska does fine without them.) Why should a guilty person be considered non-guilty because he happened to know someone worse? Why should police unilaterally* be allowed to endanger others or deny justice? (* Perhaps this is another step contingent upon #7.)
I'm sure many would find such a scenario insane (love to hear the reasons), but it seems to me it would actually be less prone to abuse than what we have today: I know someone who did quite a bit of time for a crime I believe he did not commit because he plead guilty under threats of excessive punishment, with an (unfulfilled) promise of leniency otherwise. The "grand jury" suggestion (#7) alone would have prevented the threats against him, given the lack of evidence.
Reasoned critiques welcomed.
3. Coerced evidence is unreliable, and cannot be used, directly, to convict anyone of anything. Not because it is immoral, but because it is not evidence. This doesn't mean, however, that any reliable evidence found as a result, cannot be used.
Very interesting distinction.
I see that in your discussion on torture, you do not mention the book "the Dark Side" by Jane Mayer. She did a very thorough investigation on the subject of torture. She pointed out that during the fight for freedom from England, Washington said "We do not torture in this country" Those fighting for England found out that "WE do not torture" and came over to the American side. Since then we have joined the Geneva Convention. Once the Supreme Court ruled that Gitmo was on US soil, the Bush administration was in big trouble. The people in Gitmo could not be tried because the torture would be brought out in trial. Five years of isolation, no habeas corpus, etc. Hence the Bush administration have been trying to get the prisoners back to their countries as fast as possible. If the torture comes out in trial, then the Bush/Cheney/Rumsfeld and cohorts can be tried by the UN for war crimes. So there must be a big cover up. The fact of the matter is that by the Geneva convention laws that we helped build, WE DO NOT TORTURE. While it was all supposed to be secret, it spilled over into Abu Ghraib where is was blamed on the underlings who were taught by the CIA to torture and took the fall. Read the book. Read how the Republican Lawyers tried to stop Yoo and Addinton with their "torture memos."
There is no "should we torture or not". We first must opt out of the Geneva Convention and change our laws before we even talk about torturing. We Can not do it.
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Good article. To play devil's advocate for a moment; Why can't we waterboard attempted domestic murderers? Don't they sometimes have information that might be helpful to law enforcement? Do we really have to give them early parole, or even outright legal absolution, to get useful information from criminals? How are domestic murderers different than terrorists, particularly domestic terrorists? At least with foreign born terrorists we get to send them overseas when they're released.
No kidding! And yet people will say that soldiers have the right to kill someone in the field — make them dead for all eternity — but not to shoot them in the leg to force them to give up information which could save lives. Huh???
Perhaps this is truly non-nonsensical behavior. But it's also the standard applied to domestic murderers, isn't it?
Posted by: Ryan W. on January 14, 2010 03:41 AM