Tuesday, December 18, 2007

Why We Torture Kevin Drum posted a message from one of his conservative readers awhile back. Here it is:

I want our side to win. Or maybe more accurately, I don't want our side to lose....As with any other form of violence, motivation is everything. A cop shooting a murderer is not the same as a murderer shooting an innocent victim, although both use guns, and at the end, someone is bleeding and dying.

You'd be amazed at how many people find these things nearly equivalent. A leftist I know sees no difference between a Palestinian child dying from a stray Israeli bullet during a firefight, and an Israeli child dying when a Palestinian terrorist puts the barrel of a gun to the kid's forehead and blows his brains across the back wall of the child's bedroom. In his two-dimensional perception, the only important factor is that both resulted in a dead child. Avoiding true moral analysis and motivations allows him to skirt the concept of "evil," a term which makes many liberals intensely uncomfortable.

John Kiriakou said that waterboarding a terrorist stopped dozens of attacks. Dozens. Not attacks on military targets, but attacks on innocent non-combatants.

That was the motivation.

The terrorists who torture and kill our prisoners (never something as benign as waterboarding) don't do it because they need information to save innocent people. They do it because they like it, because they want to hurt or kill someone.

At some point you have to decide if a known terrorist having a very bad day (after which he goes back to a hot meal and a cot) is more of a moral problem than allowing a terrorist to blow up a building full of people.

Yes, it's good if we do it, when it's for the right reasons. So far, it's been for the right reasons. And no, it isn't good when it's done to us, for the reasons it has been done to us. Get back to me when some enemy tortures one of our soldiers in order to save innocent lives.

Many of the comments declared this, e.g., the product of a sick mind, or of a brownshirt, and so forth. That seems not so to me. Although I tend to disagree with the position above, I think it's clear that you don't have to be sick, nor a brownshirt, to agree. There are, of course, two main points to be addressed here, the in principle point and the in practice point.

1. In Principle
We've discussed the in-principle permissibility of torture here before, though I blew a lot of the discussions by failing to stipulated enough things about the case. But it seems very, very clear to me that torture is, in principle, permissible in at least some cases. For example:
Suppose that Smith has buried an innocent person alive, planning to let the person die a horrible death. We know Smith has done this. We also know that, by torturing Smith just a little, we can get him to reveal the location of the victim, and that we can get there in time to save him/her.

Now, I don't think that any sane person would deny that we are permitted--in fact, obligated--to torture Smith under those conditions. In this case, we know Smith is guilty--he is, in fact, in the midst of committing the crime--the crime is horrific, and we know that torture will be efficacious in stopping the crime. In fact, it's likely that torture is obligatory under much weaker conditions than this. For example, Smith need not be the actual perpetrator. If Smith knows information that is, in effect, allowing a horrific crime to be committed, then it seems permissible to torture him to obtain the information. Furthermore, we probably don't need to know that the torture will be effective. So, torture is pretty clearly permissible (in fact, obligatory) in some cases.

2. In practice
In practice, however, it's not clear how often the relevant conditions are met. It's usually not clear whether someone is guilty, not clear whether a crime is in the offing, not clear whether the prisoner knows relevant information, and not clear whether torture is likely to be effective. Under these circumstances, it is no longer so clear whether this is a permissible course of action.

Now, in the present special case, there is often no doubt that the prisoner is guilty, nor any doubt that he knows important information--consider, e.g., KSM. No doubts there. But with lower-level functionaries and the poor SOBs who were just picked up by bounty-hunters in Afghanistan...well, apparently we don't even have very good reason for believing them to be guilty. There's little doubt that crimes are being planned by al Qaeda, though it is less clear how many of these plans are serious, as opposed to being in the laser-base-on-the-moon category.
And, of course, there is no consensus with regard to the issue of the efficacy of torture. This is obviously an enormously important point. On the other hand, in the case of known criminals known to be planning horrific crimes, perhaps all that is required is that torture have some non-trivial likelihood of producing information. I mean, who wouldn't torture Hitler if there was a 1% chance that doing so would, say, save Anne Frank?

On the other other hand, once we're down to such wispy considerations, there may be extraneous considerations that outweigh the intrinsic considerations.
Suppose that torture turns out to be only marginally effective, or that its effectiveness remains to be in doubt. Under those circumstances, it is far more than reasonable to argue that the following considerations outweigh the reasons in favor of torturing:

A. There is some chance that it will make our enemies more likely to torture innocent people, including our own soldiers, intelligence operatives, and allies.

B. It will--however illegitimately--give rhetorical cover to evil regimes who use torture against their political enemies.

C. There is a vast difference between persons and nations who are willing to use torture in extraordinary--and possibly never actual--cases in which its effectiveness is guaranteed, and persons and nations who are willing to use torture rather more casually,
just in case the prisoner knows something, and just in case torture will make him divulge it.

3. Conclusion

The author of the message to Drum is right about something very important: torture can be permissible--and even obligatory--if done for the right reasons, under the right conditions. Liberals who deny this need to stop doing so. But the author of the message is also wrong about something very important. In order to make torture permissible, it's not enough that we aim at preventing future murders. Rather, we must have good reason to believe that torture is appreciably more effective at eliciting the relevant information than are other available methods. Among other things, this means that torture must be able to elicit information that other techniques cannot elicit if given sufficient time. This has not been proven, and is, as we all know, in dispute. Furthermore, we have to be fairly sure that the information obtained will be valuable enough to offset whatever increased levels of brutality our soldiers and other innocent people will face as a result of our seeming to have legitimized torture. And finally, we have to be willing to become torturers.

(John Kiriakou, who Drum's correspondent cites, has actually said
both that (a) torture violates American principles and (b) torture has saved lives. Thus we have the makings of a real, genuine moral dilemma.)

Although I'm more than willing to torture an evil person as a last resort to save innocent lives, I'm more against the use of torture in the cases at hand than I am for it. Why? First, because it isn't clear enough that torture is effective enough to offset the costs to be paid, including the corrupting effects of such a policy. But, second, because it has become clear that we cannot have any confidence in the general orientation established by this administration. Administrations set tones, and this administration has set the wrong tone in virtually every way. From its intentional divisiveness to its use of the rhetoric of patriotism as a political weapon to making it clear in the run-up to the war that opposing evidence was not welcome, to the current attitude almost of eagerness to torture prisoners, this administration has revealed its intellectual and moral corruption--a corruption that has infected many who have come in contact with it. Imagine that an honest, intelligent president--a president who had no tendency to put narrow interest before inconvenient principle--had come forward and said "yes, this is torture. But we've tried everything else, and we have good reason to believe that much is at stake. This is a horrific decision, but I see no alternative." Under those conditions, I'd probably support the policy. Contrast that with the present case, in which a president who is a known liar with little or no respect for principle will not even admit that water boarding is torture. No, under these circumstances, I'm afraid we should not support the policy.

But Drum's correspondent is not, contrary to what some said in response to him, evil or a fool. He's just a little short-sighted and insensitive to current political realities. Torture is justifiable in principle, but it isn't clearly justified here and now.


Anonymous Anonymous said...

I thought you made a pretty good point a few posts ago when you stated that dicing up the UPS guy for spare parts puts you on pretty shaky ground, ethically. This looks like the exact opposite position - torture would be unpleasant but permissible if we were _really sure_ it worked.

Your pointing to this current bunch of thugs shows exactly why we don't want this particular tool in the investigative toolbox. Given the fact that none of your conditions can be true (100% certainty that torture would be effective in obtaining useful information), we're asking people to make judgment calls that may end up putting us on the wrong side of the line between us and active evil.

2:59 PM  
Blogger Joseph Dietrich said...

The only way to ensure that torture is only used in circumstances where it will be effective is to make sure that the punishment for using it is such that investigators will only do it when they are damned sure that it will work. They will have to be certain enough to stake their lives and careers on it. In other words, it cannot be permissible or legal. If they go ahead and do it anyway, and it turns out that it was indeed effective, they can be forgiven after the fact via pardon or consideration of extenuating circumstances in a court of law.

But what these people want, in trying to make torture permissible, is simply CYA. They want to be able to torture no matter what the uncertainties of the situation is just in case and not suffer any consequences for it. It's not just this bunch of thugs; it's any bunch of people, thugs or not, who are in a position of authority and power.

3:49 PM  
Blogger Tom Van Dyke said...

Well put, WS, except I demur on the partisan political part of course.

Two things:

To acknowledge waterboarding as "torture" opens up a slam-dunk case against the US per international law, plus our own laws. The hedge is more rhetorical and legalistic than moral.

And the Geneva Conventions were conceived more as gentleman's agreements between professional soldieries than moral declarations. Reciprocation, a social contract, as it were, was the founding principle. Al-Qaeda doesn't respect that, and there's at least a theoretical danger that providing consideration without reciprocation creates more, not less, abuse. You lose the only carrot you've got, and the only stick.

The problem with the whole issue is that not everything in human events can be anticipated and coded into law. Even John McCain, who's been way out in front on this issue, not in small part because the North Vietnamese tortured him, has allowed that sometimes, you gotta do what you gotta do.

3:52 PM  
Anonymous Anonymous said...

WS -- Your posts on torture are always interesting, but I see the issue very differently than you. I am willing to agree with you that in some cases, torture is morally permissible. Does this mean that it should be legally permissible?

In your "buried alive" scenario, I would not morally condemn police for torturing Smith. However, I do think they should face trial for their actions. If I were on the jury, I would vote to acquit, but there needs to be this accountability.

Allowing government officials to torture in secret, without oversight, will always, inevitably, in every single case, lead to abuse. This is not a unique facet of the GW Bush administration. If President Obama allows torture to be sanctioned by law, abuses will continue to occur. So I argue that while torture may be, in certain cases, morally permissible, allowing it to be enshrined in law is, in every case, reprehensible.

Your thoughts?

5:51 PM  
Anonymous Anonymous said...

I posted something like this in the comments to Malcolm Nance's essay WATERBOARDING IS TORTURE at Small Wars Journal, and it seems appropriate here:


"Please consider the possibility that the President was weighing national security against the legal and moral implications and that - just maybe - he did not begin from all of the same assumptions that you begin with."

If that was the case, then not only did he disregard the oath he took upon assuming office:

"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

but he also failed in his constitutional duty to see that the laws be faithfully executed (such as the Convention against Torture).

Also, what many are losing sight of is the difference between personal moral agency and the function of employees of the government - namely to uphold and defend the principles upon which our nation was founded. Those employees all take a similar oath to that of the president, which is an oath to uphold the consititution. They owe no similar moral duty to my family that I do.

So while the question of what I would do if confronted with some kind of one-in-a-million situation that for example Mr. Evans refers to, where I could save my family by committing torture, I can't honestly say what I would do in that situation. Perhaps, not being of right mind, I would commit what is undeniably a wrong in the hopes of saving my family. But if I did it would be because I believed that I owed such a moral obligation to my family.

But even in that case, I would also have no reason to expect legal immunity or even leniency. Seeking legal protection strips the entire exercise of any moral profundity the hypothetical is designed to proclaim. Either you think your moral justification trumps the law or you don't. Having official and legal approval doesn't make your action a morally trenchant decision, it makes it following orders.

There is no evidence of a similar moral duty owed to citizens by employees of our government. They may believe it is so; but that does not make it so. They are acting in their capacity as our employees. If we wish to empower them with that ability, we should undo all of the laws on the books forbidding such behavior and withdraw from all treaties that do so as well. I would submit that that would represent a rejection of what it has to this day meant to be an American.

People may attempt to graft that moral obligation to MY family onto our servants in government, but that merely represents an attempt to win by visceral reaction, rather than logic. Yes, I may HOPE that some random interrogator would save my family by torturing a suspect, yet I have no legitimate reason for expecting it. In this respect the analogy to WW II Germany is apt: a German interrogator may have been able to morally justify torturing a captive in an effort to save his family (say by gaining information about a planned bombing raid in Dresden), but he should not expect to escape legal liability at Nuremberg.

As far as the practical results of torture, I would say that the use of torture could result in increased peril to our troops in battle because opposing combatants who thought they might be tortured would be more apt to fight to the death rather than surrender. There was a good reason why the understood rule among German soldiers in WW II was to run west not east if they found themselves behind enemy lines or separated from their unit.

Finally, also from a practical point of view, I would ask that people examine the case of Ahmed Ressam, the captured millenium bombing plotter:


A sample:

"Ressam confided to his lawyers that he had found the trial surprisingly fair. The judge had treated him respectfully. THE EXPERIENCE WAS NOT AT ALL WHAT HE EXPECTED OF THE COUNTRY HE HAD BEEN TAUGHT TO HATE.

Ressam also told Oliver he was unsure of the morality of his plan to massacre innocent holiday travelers. He said he needed to study the Quran to see if he had misunderstood passages.

So when Justice Department lawyers offered a deal to reduce his sentence, Ressam was ready to listen. (my emphasis) The terms were simple: His minimum sentence would be cut in half, to 27 years. In return, he had to testify against an associate, Mokhtar Haouari, and others. He had to reveal all he knew about al-Qaida — plots, training, tactics.

Ahmed Ressam became a terrorist turncoat.

On May 10, 2001, FBI Agent Fred Humphries questioned Ressam, the first of dozens of interviews. The information was invaluable — and terrifying. He explained how he was recruited in Montreal and funneled into the bin Laden camps. He talked in detail about training with Taliban-supplied weapons. He informed on Abu Zubaydah, Abu Doha and other top al-Qaida operatives. He provided the names of jihad fighters he had met in the camps. He revealed that he had contemplated blowing up an FBI office and the Israeli embassy in Washington, D.C....

Since the Sept. 11 attacks, Ressam's solitude has been broken by a stream of visitors, often FBI agents such as Fred Humphries, but also investigators from Germany, Italy and elsewhere.

With federal public defender Jo Ann Oliver at his side, he is told names and shown photographs of suspected terrorists and asked if he knows them.

On several occasions, Ressam has been flown to New York City for similar questioning. There, he is held in a detention center just blocks from Ground Zero.

Ressam did not recognize any of the 19 suicide hijackers from Sept. 11. But he was able to identify student pilot Zacarias Moussaoui of Minneapolis, now in U.S. custody, as a trainee from Osama bin Laden's Khalden camp.

Ressam informed on Abu Doha, a London-based Algerian who was the brains and money behind Ressam's Los Angeles airport plot. He identified Ibn al-Shaykh al-Libi, who ran the Khalden camp, and Abu Sulieman, who taught bomb-making at the Darunta camp.

Most importantly, Ressam named the previously little-known Abu Zubaydah as a top aide to bin Laden. That helped smash the notion that Zubaydah, also now in U.S. custody, was little more than a travel agent for terrorist wannabes making their way to the al-Qaida camps.

Ressam is expected to testify at the trials of these and other suspected terrorists.

So it is that Ahmed Ressam — the boy who loved to fish in the Mediterranean, the teenager who loved to dance at discothèques, the young man who tried and failed to get into college, who connected with fanatical Muslims in Montreal, who learned to kill in bin Laden's camps, who plotted to massacre American citizens — has become one of the U.S. government's most valuable weapons in the war against terror...

Ressam's information was given to anti-terrorism field agents around the world _ in one case, helping to prevent the mishandling and potential detonation of the shoe bomb that Richard Reid attempted to blow up aboard an American Airlines flight in 2001"

9:36 PM  
Anonymous Anonymous said...

Yet another thing to be considered within your moral calculus would be the impact upon the torturer of having to undertake this course of action.
Look at the cases of PTSD of people engaged in combat, where the other person is not helpless, since that gives people nightmares already, what about cases when the other person is, for intentions and purposes, helpless.

4:51 PM  
Blogger Tom Van Dyke said...

Jcpoteet presents an interesting humanistic/psychological argument against torture. It's behind my own mushy opposition to capital punishment, altho intellectually, I think the arguments in favor of it are stronger.

There are many who insist that they could administer the needle or pull the switch on, say, Charlie Manson without any moral or psychological complications.

I don't know if this is true; I'm not them and have never put anyone to death.

Most of the rest in the above comments illustrates the conflict between what is moral, legal, and what is just.

The trapdoors of "if the torture was effective" [Mr. Dietrich] and some sort of "forgiveness"---pardon or jury nullification ["cb"]---lead us to where RobertB tries to avoid---"we're asking people to make judgment calls."

There's no way around that. The problem of the philosopher-king, who is always just. Somebody has to make a judgment call where morality, law, and justice are not in harmony.

The "slippery slope" argument is valid and in force here. But the other slippery slope is that whoever makes the judgment call, CIA man or president, is vulnerable to partisan scalphunting.

President Obama makes the moral call, saves innocent lives, and those bastard Republicans, having regained control of the House during Obama's second term, impeach him.

Or Secretary of Peace Kucinich makes the call, and Patrick Fitzgerald indicts and convicts him in from of a paritsan Biloxi jury.

Or Secretary of State Bill Clinton, afraid of the Republicans, refuses to make the call, like he did against al-Qaeda during his presidency, according to Richard C. Clarke.

Innocent people are murdered, but the A in CYA is C'ed. I believe the honest inquirer admits that's a real possibility.

I'm advocating no position here, as it's a genuine dilemma, with no satisfactory answers. But the Law of Unintended Consequences has another side of the coin, one we never talk about or discuss, that inaction has consequences too, and they're even harder to discern than our attempts to identify cause and effect.

Anonymous tells an interesting and probative story, about how somebody who was taught to hate the West was brought around by humane treatment.

Happened all the time during the Cold War.

However, there are those in al-Qaeda, the true believers, who don't hate us atall, but are morally convinced that Western "tolerance" is the moral equivalent of giving children booze and porno.

Opposition to that, even violent opposition, will not be seduced away by sweet talk and a cup of tea, and there's the rub. You might have better luck on Charlie Manson, who's at least has being insane to work with.

8:05 PM  

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