Wednesday, May 20, 2009

Bottom-Up Change on the Torture Debate

Jared at Bottom-Up Change responds to my post on Krauthammer's recent defense of torture.

I'm particularly interested in this important argument:

What Krauthammer concludes from Alter’s piece, and Nancy Pelosi’s awkward position about waterboarding, is that all the outrage over the torture memos today is really “false”. Our correct intuitions about torture were the ones we had immediately after 9/11, when many people, including liberals like Alter, were considering the use of torture to extract information from terrorist suspects.

But the problem with this argument is the following, and it’s not hard to see. Just because many people, including possibly Nancy Pelosi, were not as disturbed about torture shortly after 9/11 as they are today does not mean that these intuitions were correct back then. I concede that if there were a very significant terrorist attack tomorrow, the percentage of Americans who would support torture as a method to gain intelligence would increase dramatically. Perhaps Pelosi would go back to not speaking out against torture. But that does not prove that these “aftermath” intuitions would be correct. It is often the case that our intuitions about right and wrong are distorted when we are angry or have recently been harmed. One reason why we have laws, I believe, is to check the darker emotions of individuals that may lead them to act in uncivilized ways.

This is a version of what we might call the Pelosi Is Irrelevant Argument. Now, I have no interest in Nancy Pelosi one way or the other. She's never really inspired me, nor inspired much confidence in me, and if she's guilty of something, she's guilty. I have no interest in stretching to defend her, especially not on partisan grounds. I don't have any particular loyalty to the Dems.

However, I'm skeptical about the Pelosi Is Irrelevant argument. Here, for example, is an argument to the effect that Pelosi's immediately-post-9/11 judgment is relevant here:
Suppose that Pelosi is not an overtly unreasonable person. Suppose also that she judged e.g. waterboarding to be permissible immediately after 9/11. This is some evidence that such judgments are the kind reasonable people might make under such circumstances. Consequently this shows that decisions to waterboard were reasonable in a very ordinary and straight-forward sense: that is, in the sense that a reasonable person might very well make such a judgment under those circumstances. That is, this provides some mitigating/excusing evidence in defense of those who tortured and those who ordered torture.
Needless to say, the fact that any single person judged that p never gives us conclusive evidence that it was reasonable to judge that p...but the more people who do so judge, and the stronger our antecedent reason for thinking them to be rational, the stronger evidence of reasonableness is their judgment. (And, of course, none of this could show that the decision to torture was optimal...only, at most, that it was excusable.)

Personally, I've never had a very high opinion of Pelosi; she has never struck me as being particularly smart. (Which seems to make her about par for the course in Congress...) So I'm somewhat less impressed by the allegation of her complicity. But those who think highly of her should be impressed--if, that is, it turns out to be true.

It's become fairly common on the left to say that Pelosi doesn't matter, that the GOP is simply throwing up a distraction. And, of course, they are. They seemt to care more about the fact that a Democrat when along with the plan than that Republicans engineered it. (This, again, is par for the course in recent years: Republicans boldly lead us down the road to perdition, Democrats meekly follow, thus getting us to perdition and giving Republicans cover for having masterminded the whole affair...)

But ignoring the motives and well-known characther flaws of the GOP, Pelosi's complicity would matter, in that it would give us a little more reason to think that there is significant difference between what seems reasonable now and what seemed reasonable in the crazy days immediately after 9/11. It's not clear how weighty it would be if she did acquiesce to torture...but the fact cannot be dismissed as evidentially weightless without further argument.

I think it's hard to find our way through this tricky terrain...but that's my thought on it for today.


Blogger Myca said...

It's interesting that this seems to be not the tack that the Republicans are taking. Arguing that 'Nancy Pelosi, as a reasonable person, did not object to torture, thus torture is not, on the face of it, unreasonable,' is a fairly effective argument, sure.

Oddly, their preferred tactic seems to be more, "Nancy Pelosi did not object to torture, thus she's evil, EVIL, I tell you!" This has the advantage of demonizing Nancy Pelosi, which they always enjoy, but the disadvantage of tacitly agreeing that torture is terrible, awful, no good very bad, etc.

Which of course is why we end up left with their somewhat weird position that 'there's nothing wrong with torture, and Nancy Pelosi is untrustworthy for not having opposed it.'

My position is that torture is a cancer eating away at the heart of our nation's laws, and that anyone who authorized or performed it ought to be in jail, and anyone who knew about it and did not object ought to be subject to a criminal investigation.

If this includes Nancy Pelosi, then it includes Nancy Pelosi. That's the way our laws are supposed to work. Theoretically, anyhow, it shouldn't matter who you are.


12:26 PM  
Blogger Winston Smith said...

"My position is that torture is a cancer eating away at the heart of our nation's laws, and that anyone who authorized or performed it ought to be in jail, and anyone who knew about it and did not object ought to be subject to a criminal investigation.

If this includes Nancy Pelosi, then it includes Nancy Pelosi. That's the way our laws are supposed to work."

I'm with you 100% Myca.

5:30 PM  
Blogger The Mystic said...

I hate to say it, but the more I talk to my friends in the military, the more I'm starting to think we're objecting to strongly to what's gone on without knowing exactly what it was that did go on.

I reiterate a question I asked earlier with no real answer:

Suppose you're in the military and there are multiple important missions being conducted in your area at the moment. A suspected terrorist has been captured and is brought to you for detainment and questioning. He laughs, saying that your friends are going to die and he knows when and how.

But he won't say any more. He just keeps laughing.

Does this count as a "ticking time bomb" scenario? Is torture warranted if he refuses to give up the information? If it is, I have it on good authority that this sort of situation happens more frequently than civilians are aware. In fact, the estimate I received was as high as twice a week for certain periods of time throughout the current conflicts in the middle east.

If that does count as a ticking time bomb situation, then we're in trouble, because blanket statements about torture being a cancer and any and all of those who engaged in it needing to be jailed are false.

However, I may not understand ticking time bomb cases, and I'm open to being shown to be incorrect when it comes to whether or not the above-mentioned scenario warrants torture, but it seems to me that we ought not to be jailing people for it. In fact, it might even be the right thing to do.

If this is all true, the authorization of torture by Cheney and Bush isn't as bad as we're making it. It is at least not the necessarily evil act that we're making it out to be.

So, someone explain to me why I'm wrong and make me feel better.

10:45 AM  
Blogger Winston Smith said...

That's clearly a crucial question.

I guess I have some doubts that such things happen that often. First, it just sounds too much like an analog of an urban myth. Second, it sounds like the kind of thing an even vaguely dedicated and intelligent enemy captive wouldn't do, largely because, third, it sounds like an invitation to an extremely serious and thorough ass-kicking...

But that's all pretty speculative.

And we should probably *try* to answer the question in abstraction before we find out whether the information is true.

This is of interest to me, given that one of the lines of reasoning I've been toying with goes something like this: it's said that the military doesn't torture, and that policy is the output of at least 200 years of hands-on, practical experience with such questions...

Anyway, this is interesting.

11:01 AM  
Blogger The Mystic said...

Sadly, I have only the most miniscule of doubts that this kind of situation doesn't occur with significant frequency. My source is not one to lie to me, and yet, is one that is sometimes easily duped, so my doubts are minimal, but existant.

However, history is littered with crazy behavior carried out on behalf of religion. Some people will undergo hell if it's for a religious cause. It doesn't seem implausible to me that these people, fighting for what they believe is a grand religious undertaking, would act in a manner that normal people would look upon as insane (i.e. provoking captors into an ass-kicking). It is especially plausible behavior regarding this particular group of religious adherents, as suffering for their religion has been drilled into them as being one of the greatest things they can do.

So, in the end, are we going to agree that if such a hypothetical situation did occur, it would warrant torture?

If so, then I believe we are in very murky water when trying to sift through this torture stuff. We definitely have to stop saying that it's never warranted, or that it's a cancer, or that everyone involved needs to be jailed. It seems to be growing in liklihood that the anti-torture side is going nuts way too fast.

Furthermore, it hurts me to say that torture may sometimes be warranted, but that just looks like the way it is. If you poke a bear with a stick, I guess being mauled is just part of that game. If you tell people you know how their friends are going to die and that it's going to happen pretty soon, being tortured is just part of that game.

Of course, with more thought on this issue, the ideas that have been developed on Philosoraptor aren't necessarily changed. It's already been said that torture is warranted in ticking time bomb cases.

The real change I'm thinking about might have to be in our attitude towards this issue. We seem to be assuming that there's no way torture was ever warranted and I think there's significant reason to believe that it was, at least in some cases, warranted.

This makes it harder to articulate a position on torture. While communicating how horrendous it is and how completely unacceptable it is to torture someone without good reason, we have to simultaneously communicate that there are, in fact, good reasons that permit for it. Torture cases will have to be examined one at a time, and I think it's a bad idea to let ourselves make blanket statements about it around here, as appealing as though they may be.

1:07 PM  
Blogger Winston Smith said...

This is to circumvent the real issue here, but:

Sounds like you actually have appreciable reason to think that this info might be bogus...if your source is, indeed, rather easily duped...

Seriously, it has the ring of an urban myth...or seems to, to my ear.

But ignoring the pesky, grubby facts...

I think we'd still have to know whether torture is the only reasonable means of getting the info, whether it was appreciably effective, and how bad the blowback was from it (in e.g. recruitment of new insurgents and the increased propensity of insurgents to fight to the death).

Seems like the wisdom of the military ages says: just don't do it. That's defeasible, but I'm conservative enough to think that it ought to be given fairly strong presumption.

1:17 PM  
Blogger The Mystic said...

Even in the case of the aforementioned hypothetical scenario? Or are we just assuming my source is wrong?

1:18 PM  
Blogger Winston Smith said...

Well, what's gone on in Gulf War Episode II is only a small part of the relevant military history...

But I switched gears toward the end. So:

1. We ought to see whether we can figure things out in abstraction.

2. We ought also to--in the final analysis--take into account the wisdom of the military ages.

3. We ought also to consider the judgments of the people actually fighting this particular war.

I agree with you that the people who think this is an easy call tend to be typing from their parents' basements. I'm firmly on the anti-torture side...god, who thought we'd have to be typing sentences like that?...but I recognize the epistemic limitations of my distance.

1:48 PM  
Anonymous Lewis Carroll said...


Didn't we already go (at least part of the way) down this road here?:

I would be interested though, in you taking it further...


3:29 PM  
Blogger The Mystic said...

I was under that impression as well. It seems to me that we've already established that torture is permissible in ticking time bomb scenarios, and I'm saying that I have sources which indicate that these scenarios do happen. They're not merely sci-fi scenarios anymore.

If they're right, then it seems torture was permissible. If that's right, it seems like we need to back off on the issue until we get the facts surrounding the instances of torture straight.

That seems to me like it ought to be the end of what we can say - we can't say that we should be prosecuting everyone who engaged in it. We can't say that any torture is impermissible. We can't say a lot of things that seem to be frequently said as of late.

My worry is that we're slipping into a position that we won't even consider budging from.

4:00 PM  
Anonymous Lewis Carroll said...

OK, so torture may be morally permissible. What's that got to do with the law again? Morality is a code of personal conduct. The law is a device to protect and 'secure the rights' which we believe are 'self-evident'. The two may coincide, though not necessarily. And since morality is neither necessary nor sufficient for making law, I say we needn't consider it in legal contexts.

And what of the soldiers' obligations to uphold the oath they all swear, which is to protect and defend the Constitution of the United States against all enemies, foreign and domestic? You know, the one that makes all laws binding on everyone, including domestic laws against torture as well as treaties to which we are signatories that then become the law of the land.

Further, there is the issue of reciprocity to consider. Unless you want to argue that jus de bello --- necessarily ----> jus in bello, then you need to explain why it's moral for us to torture but the enemy not to. I'm not saying such an argument can't be made, but the principle of reciprocity, which I believe is important to any moral system (you may disagree) requires that you establish a standard for when a distasteful practice (e.g. torture) is permissible that is independent of actor identity. It seems to me that this would need to be done without resorting to highly problematic situational ethics and/or relativism. I think my example in the other thread of the WW II German soldier being morally permitted to torture an American or British prisoner in order to learn about a planned bombing raid on Dresden is apt here. Yes, you could probably construct a case that he was morally permitted to torture, but should he have been acquitted at Nuremberg?

Morally speaking, I still agree with Jim's invokation of the Necessity Defense in the other thread. True ticking time bomb scenarios are the stuff the Defense was made for. But we can't countenance the routine breaking of our laws and dereliction of duty by violating of oaths.

10:16 PM  
Anonymous Jared said...

Mystic, I think your scenario with the prisoner and the fellow-solder (Case A) illustrates how vague the ticking time bomb scenario (TTB) thought experiment is. For instance, if Case A is a TTB, it seems that there are LOTS of such cases. It seems very plausible to me that prisoners frequently have valuable information about where hostages are. However, I have always considered TTB cases to involve much more potential deaths than Case A. This is not to say that the way TTBs are typically described makes the description correct. But I wonder if the number of deaths does play a role in whether a case is a TTB or not. If so, then where do we draw the line (vagueness problem)? If not, and you believe that Case A is a TTB, then I think you're going to be committed to the position that torture is justified in many, many cases.

Charles Krauthammer wrote about the Israeli case of Cpl. Waxman who was freed as a result of torturing a prisoner who knew where he was. This is a real life Case A. I'm sure there are many more where that came from.

In any case, I do think that the "Pelosi is irrelevant" argument needs to be considered more. Let's forget about Pelosi. My point was that even if many reasonable people may have thought torture was justified in the aftermath of 9/11, this is not a good argument for the conclusion that torture was justified, say, in the case of Abu Zubadah. IMHO, it's not a good argument because there is no reason to believe that our intuitions in a "cool hour" of reflection in this case are less reliable than our intuitions immediately after 9/11. Of course, it's also true that the fact that many people now believe that torture of Abu Zubaydah was not justified does not by itself prove that torture is impermissable. My argument was simply that relying on our intuitions immediately post-9/11 does not establish anything. Is it "prima facie" evidence in favor of torture? Perhaps. But then the intuitions of many people today in opposition to torture is prima facie evidence that the torture of Abu Zubaydah was wrong.

This doesn't really touch the larger debate about whether torture is right or wrong (whether in TTB cases or in Case A). I'm just trying to say that just because many people may have thought torture reasonable immediately post-9/11 (but perhaps now have changed their minds), this does not establish that the intuitions these people had then were the correct ones. I will say, though, that it's interesting that in President Obama's speech today, he never once even touched on the question of whether or not torture works in eliciting valuable information and is effective in saving some lives. His reasons for opposing torture had to do with its "wider" effects--it makes us less safe by being used as a recruitment tool for terrorists, it makes terrorists less willing to surrender, and it makes our allies less likely to help us in fighting them. This argument also has to be considered when discussing the morality of torture. It doesn't seem right to try to decide whether torture is moral simply by looking narrowly at situations like Case A. We also need to take a wider view of the consequences of torture.

11:48 PM  
Blogger The Mystic said...

I agree with you entirely, Jared.

One note though: when people tout the negatives of torture, I must say that most, if not all of them (terrorists less willing to surrender, tool for recruitment, allies less likely to help us, etc.) can be assuaged by simply not revealing that torture took place.

Of course, then things get shadier and shadier, and I'm not even comfortable with the idea of torture being permissible, so I'm not going to go into it, but I'm just saying that it doesn't seem like torture should be out because of things which can be controlled by not revealing that torture took place. It reminds me of one of the arguments against the idea that everyone acting in their own self-interest alone will result in a moral society.

I disagree, however, with a lot of things you said, Lewis. While you are correct that law and morality are separate, I disagree both that morality is merely "a code of personal conduct" and that morality is not necessary for making law. I think that morality necessarily exists as the guiding set of principles by which laws are established. If it does not, what guides the creation of laws?

You are correct about the Constitution's inclusion of the treaties which ban torture. I don't think anyone here is debating whether or not torture is legal. It's clearly not. I thought we were solely on the question of whether or not it is morally permissible. If we aren't there yet, let me be the first to suggest that we move to that discussion, because I don't know anyone who would think that torture is somehow legal. It's fairly explicitly banned in numerous treaties of which the United States is a part, and our Constitution makes them the law of the land. There you have it.

I agree with you about the Necessity Defense as well, and I'm sold on torture remaining illegal with that defense as an option to allow certain situations to pass, should they meet that requirement.

My concern now solely lies with whether or not torture should be morally permissible in as many circumstances as it seems to me to be so. I have this concern especially because it seems that the situations in which torture is permissible are likely to occur more frequently than we are thinking, especially in the current conflicts in the middle east.

Of course, then I guess that would just mean that there are more horrendous people out there than we imagine there to be, and as a result, more horrible things, including their torture, are occurring.

In the end, all I'm trying to get across is that I think we're being too quick to condemn those who engaged in torture without knowing exactly why it happened. Of course, in cases like Abu Zubadah, where he was tortured hundreds of times in a month, I doubt anything on that scale was warranted, so we can probably pretty quickly condemn that case.

But it's a mess out there, and being clear about where we stand on the morality of the situations at hand is increasingly difficult. I only wanted to stymie the blanket statements.

9:03 AM  
Anonymous Lewis Carroll said...

"I think that morality necessarily exists as the guiding set of principles by which laws are established. If it does not, what guides the creation of laws?"

The creation of our laws are guided by, as Jefferson wrote, and I reiterate, the protection of our rights as people. That is why governments are instituted among men. Now you can try to claim that the agreement on, and identification of, peoples' rights is inherently a moral exercise, but to me that's just an effort to create a tautological link between the two where no such link necessarily exists.

As a thought exercise, you could disprove my necessity argument by pointing to a law circumscribing or requiring some behavior which is based solely on morality, and cannot at root be based on the protection of some generally-accepted right; that is, this law is can be based only on morality. In other words, a case where morality is the only plausible justification for that law, since there is no obvious human right that is being protected. It's also important that you believe the law to be a just one. So, for example, I don't see the outlawing of drugs and adult prostitution as justifiable based on anything other than moral grounds. If you agree, and you still believe that these laws are just, then you can use them as counterexamples. Do you believe these laws are just?

As an obvious and glaring example, I could point out that murder is morally reprehensible, but it is not that moral repugnance that makes it illegal; rather, it is the denial of the murdered of his right to life. I would also note here that the more astute right-to-life groups have seized on fetal personhood as the sine qua non of the outlawing of abortion. They recognize that it is only by establishing the fetus as a person, and therefore endowed with rights, that its protection becomes the proper purview of law. Unless one can establish that the fetus has rights, appeals to moral preference will gain no traction, since it is obvious that the mother is a person in every sense and therefore entitled to rights such as personal autonomy and liberty. And her own moral choice in the matter is at least as weighty, if not more so, than any moral beliefs of anybody else.

The sufficiency argument about morality is easily defeated by considering that there are many obligations which are widely viewed as morally required (e.g. gratitude, honesty, charity) which are neither instantiated as legal requirements nor popularly conceived of as the proper purview of law. It is not the job of government to make me a better or more virtuous person; however, it is the job of government to protect my rights against infringement by others and to protect their rights against infringement by me. Or occasionally to mediate between conflicts in our rights. That is, of course, if you genuinely buy into the conception of government on which this country was founded.

There are some moral systems which hold that working on Saturday, shaving, consuming alcohol etc. are immoral. Do you feel it is necessary to pass judgment on the philosophical strength of these moral systems as a whole in order to dismiss them as appropriate for determining law? Or can't we just say that, as desirable as an ethos and code of personal behavior some moral system may be, we needn't consider it when making laws?

I will say, however, that I agree 100% with something Barack Obama wrote in his second book (a passage which I unfortunately can't find right now), which is that moral considerations are perfectly OK for you to arrive at you opinions about politics and the law. But in order to make a public argument for or against some law, you need to bring the argument onto more universally-accepted ground.

2:14 PM  

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