[News] How to Argue Against Torture
Anti-Imperialist News
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Wed Jul 22 12:48:19 EDT 2009
http://www.counterpunch.org/
July 22, 2009
Always Wrong; Always Illegal; Always Unjustifiable
How to Argue Against Torture
By BERNARD CHAZELLE
A signatory to the UN Convention Against Torture,
the United States "does not torture." Yet
abundant evidence indicates that it does,
directly or by proxyand in fact always has. An
old American tradition of state-sponsored torture
even has its own lexicon: SOA, Kubark, Phoenix,
MK-Ultra, rendition, CIA's "no-touch" paradigm,
etc. It is quite popular, too. Torture enjoys
more than twice the public support in the US that
it does in France, Spain, and the UK. One of the
most watched TV dramas, 24, is but an extended
ode to the glories of torture. The former
director of a prominent human rights center at
Harvard writes of the judicious use of sleep
deprivation, hooding, and targeted
assassinations; he concedes the government's need
to "traffic in evils." The nation's most
celebrated defense attorney recommends "torture
warrants" and "the sterilized needle being shoved
under the fingernails" ("sterilized" because he
is a liberal). The most cited legal scholar in
the land writes: "If the stakes are high enough,
torture is permissible. No one who doubts that
this is the case should be in a position of responsibility."
Anti-torture voices have been left sounding
defensive, insecure, incoherent. Yet, while
boasting the world's highest incarceration
numbers and supermax prisons characterized by a
warden as a "clean version of hell," the US has
also begun to question its tolerance of torture.
The debate is on, and torture is winning. I
intend here to lay the foundation for a strong,
cogent anti-torture position. It rests upon three principles:
Torture is always wrong;
Torture must be banned by law unconditionally;
Not all torture decisions should be morally codified.
The first two principles reject torture on moral
grounds (it's wrong) and legal ones (it's bad).
Unfortunately, they do not imply that one should
never torture. If, indeed, our only choice is
between two acts that are immoral, these two
rules alone won't tell us what to do. This
central dilemma arises in principlewe can all
imagine ourselves in an extreme situation about
which we cannot say with certainty that we would
not torturebut does it arise in practice? Many
say, with some justification, that it does not.
Whatever the case may be, there is a hefty price
to pay for dismissing the central dilemma on
implausibility grounds, as many liberals are wont
to do. Once the improbable is deemed morally
irrelevant, torture can no longer claim the
status of absolute wrong, for there is no such
thing as an "absolute-wrong-in-practice." Any
serious condemnation of torture must account for the central dilemma.
Hence my third principle. It stipulates that no
ethical code (ie, universal decision procedure)
should tell a would-be torturer what to do in all
situations. This is to avoid rationalization and,
beyond it, the dilution of moral responsibility
in the hypothetical case where not to torture is
no less an immoral option than to do so (the
central dilemma). The third principle is a point
of meta-ethics. It is not a moral rule per se,
but a statement about the inapplicability of
moral rules. It is designed to overcome the
justificatory purposes embedded in any ethical
code. One may object that the central dilemma
arises with any moral wrong, so why single it
out? Because it lies at the core of the "torture
issue" itself, which, with the wide support it
enjoys, is indeed an issue. How to aggregate
universal moral principles into decision
procedures, a central problem in ethics, is in my
view the only interesting aspect of the torture
question; the rest is straightforward.
Like many, I feel strongly enough about torture
to find the very notion of a "torture debate"
distasteful. But sentiment alone means nothing. I
feel strongly about racism, too. But racism is
not wrong because it offends my sensibilities. It
is wrong because it violates reason and human
dignity. Likewise, if we cannot offer a reasoned
account of the absolute wrongness of torture
(especially given the wide public support for it)
then our impassioned opposition, indispensable
though it may be, will still be, strictly
speaking, meaningless. It also matters because
one cannot fight effectively for a cause one does
not understand. Is it a coincidence that torture
has remained so popular in this country amidst
such an impoverished public discourse?
I. Why Torture Is Always Immoral
What is torture? "I know it when I see it" is a
fine answer and rough agreement with common
intuition will do. Supermax incarceration and
prison rape can be construed as institutionalized
forms of torture. For the purpose of this essay,
however, I narrow down the definition to the
forced exchange of information for the relief of
unbearable pain. Much like slavery, torture is
coerced trade. To many, its abhorrence requires
no empirical evidence: it is a priori, intuitive,
and visceral. So much so, in fact, that even
asking why seems immoral, as if merely speaking
of a ghost might make it appear.
But, if torture is so evil, why is it so hard to
explain why? Let's try. Some say a society that
allows torture loses its soul and brings shame on
its members. This is true, but it explains
nothingat least no more than calling murder
wrong because it makes you a bad person. A line
often heard is that torture does not work. Never
mind the fragility of a proposition that is both
unprovable and falsifiable. Even if true, this
claim is a gift to the torturers: "Make it work,
Mr Inquisitor, and the moral turf is yours." It's
like rejecting slavery because "it does not work"
or opposing cannibalism on nutritional grounds.
Consequentialism is thin gruel against torture.
Beware of the sentence that ends with the words,
"therefore torture is evil." Better for it to
start, "Torture is evil, therefore..."
This brings us to the deontological perspective.
Do we recoil from torture because it treats a
person only as a means to an end? It is a
principled view that might account for our
rational rejection of torture, but Kant's
Categorical Imperative is too much at variance
with Anglo-American norms to explain the
instinctive revulsion the practice commonly
elicits. (As the death penalty illustrates, note
that popularity does not contradict abhorrence.)
In his paeans to torture, Dershowitz is merely
echoing Bentham and, beyond it, the reigning
utilitarianism of our time, which, from
conditional welfare to advertising, routinely
flouts Kantian ethics. And yet, is there a doubt
that the wrongness of torture finds its source,
not in a holy book or in the final link of a
chain of observations, but deep in humanity's
moral intuition? On this we all agree.
Or do we? Few would argue that waterboarding
Khalid Sheikh Mohammed was worse than shooting
him in the head. Yet killing does not make us
wince the way torture does. Why? Could it be the
excruciating pain? Doubtful. Baby Mohammed lost
both legs during Shock-and-Awe and, over a
10-hour period, bled to death stuck in the debris
of his home, a horror entirely foreseen in its
outline, if not its particulars, by the
architects of the war. The baby's pain vastly
exceeded that of his namesake. Yet if Rumsfeld
must one day cross Europe off his travel plans,
it will be because of Khalid Mohammed, not baby
Mohammeddespite the former SecDef's direct
responsibility in the latter's agony. Pain and
death do not explain why torture feels so evil.
Then what does? Perhaps the deadly mix of fear,
humiliation, abandonment, and open-ended sadism
that the practice connotes. The torturer never
says, "I go home at 5." Torture stirs in all of
us the age-old anxiety of a cruel deity that
keeps us forever conscious to suffer an endless
agony. Pain, like relativity, distorts time. (A
root-canal patient can tell you all about
eternity.) Past a certain point, the victim's
fear is no longer that he will die but that he
won't. Torture is a window into hell, with a
satanic god cast as a human sadist. I believe one
cannot grasp the role of torture in the
imagination without integrating its metaphysical
resonance. Torture rehearses eternal damnation.
And that's not a good thing, because hell scares
the hell out of everyone, even those who don't believe in it.
To add insult to injury, the torturer reflects
back to us a magnified image of that repressed
speck of sadism buried in all of us. This did not
always bother us. God gave Moses not one but two
commandments against lust, and not a single one
against cruelty; likewise, Augustine deemed
cupidity a more serious offense. It was not until
Montaigne and Montesquieu that cruelty acquired a
special status in moral philosophy. Our revulsion
toward torture is hardly universalchildren can
be astonishingly cruel to animalsbut, rather,
the sign of a certain liberal disposition.
Torture offends us through its frontal assault on
human dignity. Beyond subverting free will into
"anti-will"your being tortured does not simply
violate you: it makes you violate yourselfit
denies something even more fundamental than
freedom: personhood. It dehumanizes not only the
victim and the torturer, but society as a whole.
Or so our modern liberal sensibilities tell us.
II. Why Torture Should Always Be Illegal
Should torture be legalized in exceptional
circumstances? The answer is an unequivocal no.
The ban must be unconditional. Why? Because
grotesquely evil behavior must be criminalized?
Pleasing though it may be, this simple answer
won't do. We must first examine whether there
might not be a utilitarian reason to make legal
exceptions. (Even the most committed deontologist
will recognize the need to test laws against
their consequences.) I will show that there is no
room for exceptions by revisiting the three
arguments central to the issue: TBS,
self-defense, and torture creep. I'll also
discuss the criminal prosecution of torturers.
The ticking bomb scenario (TBS) would appear to
beg for an exceptionsee for a definition. (I'll
assume the usual conditions of imminence,
gravity, proportionality, and certainty, without
which TBS is not worthy of consideration.) The
first issue to address is consistency. TBS
advocates often lack the courtesy to grant the
same rights to their enemies. They remain oddly
silent on whether, say, the Taliban would be
entitled to torture captured American soldiers
thought to know about imminent drone attacks.
There might appear to be a normative basis for
the double standard. After all, we're the good
guys and they're not, so why should we grant them
the same moral latitude? That's nonsense. Our own
code of warfare, such as it is, dictates that it
apply equally to both sidesas do the Geneva
Conventions. Whether it should be so or not is an
interesting philosophical question, but in
practice this point is already settled.
The legal issue hangs on the "rarity principle."
We all see the need for a law against murder. But
do we need a law for a bad act that happens at
one millionth the rate of murder? Probably not.
Legality should offer only a blurry reflection of
morality, not its mirror image. Whereas morals
delineate complex fractal lines, laws should
follow smooth contours free of singularities. As
the saying goes, "Hard cases make bad laws." This
is not a weakness of the law but a strength:
that's how it can be both universal and
enforceable. TBS theorists will agree but say:
"Look, 1,000,000/1,000,000 = 1, so an action
likely to cause one million deaths at one
millionth the rate of murder matches the expected
harm of murder, and hence merits its own law;
ergo, legalize torture. QED." A three-word
refutation: Break the law. No one's yet suggested
a new speed limit sign: "55 Unless You're
Taking Your Dying Uncle To The Hospital." Speed
up if you must, and pay the price later. Tucking
exceptions into law is courting the same trouble
as overfitting a machine learning classifier, ie,
loss of generalizing power and diminished appeal to universality.
Self-defense was invoked in the infamous Bybee
"torture memos." On the face of it, this is
preposterous. A torture victim is not a threat. A
captive terrorist such as Khalid Sheikh Mohammed
is a culpable bystander, not a culpable
aggressor. Therefore, first, the argument would
need to appeal to self-preservation and not
self-defense; second, this in turn would crash
against the accepted legal doctrine that
bystanders, even guilty ones, may not be hurt
intentionally. Perhaps a legal argument of
"distributive" justice could be made that, if
harm is unavoidable, it is preferable to inflict
it on the guilty party if there is the option.
But, by that logic, a gunman who shoots you might
be forced to give you his organs to save your
life: if one life has to go, hey, guess which
one? Trouble is, this constitutes a brand of
justice far too alien to our own to be
acceptable. To that normative consideration, I
would also guard against the slippery notion of
"collective self." Most aggressive wars in
history have been fought in the name of
self-defense. This might then justify the torture
of war prisoners when one's country is under
attack, thus losing the classical distinction
between jus ad bellum (why one may go to war) and
jus in bello (how one may fight a war). Even if
all other options have been tried, the torture of
terrorists cannot be called self-defense.
The case of individual, non-state sponsored TBS
is not as clear-cut. You're entitled to stab a
man on self-defense grounds if you see him break
into your house and try to strangle your
daughter. (No one will dispute that your "self"
may extend to her.) So why can't you do the same
if he refuses to divulge her location after he's
kidnapped her and buried her alive with 20
minutes left to live? Simple: because the man is
not attacking your daughter. But isn't his
silence every bit as much a weapon as his hands?
After all, he can wield either one at will to
decide her fate. One can draw two distinctions,
neither of which resists scrutiny.
The first one is epistemic: your belief that the
man knows the burying location of your daughter
and that she is still alive cannot match the
certainty of your witnessing her strangulation.
This can be postulated awaycertainty is an
accepted part of any serious TBS narrative. (No
need to assume here that what you believe is
true: only that you have no reason to doubt it.)
The other distinction, silence vs strangling, ie,
omission vs commission, concerns neither
causality nor intentionalityin both cases the
man acts willfully to kill. It rests solely on
timing, a consideration of no discernable
normative relevance. One can, likewise, torture
by omission. If the captive were diabetic, it
would be torture to withhold his insulin until he
talks, since this would fit our characterization
of torture as a form of coerced trade. In sum,
tying a stand on torture to a distinction between
omission and commission is dicey. And even a
plausible self-defense plea (which, it is fair to
say, would never happen in practice) must give
precedence to the rarity principle: break the law if you must.
Torture creep is yet another reason to make the
legal ban watertight. The historical record
indicates that the slightest legal opening to
torture will metastasize into widespread
institutional abuse. This "cancerous" spread
affects intention, which leads to intimidation,
submission, and extraction of false confessions.
Even a state that allows torture only in rare
cases will soon insist on competent torturers;
hence torture schools, torture experts, torture
research, and, given the gravity of the matter,
an administrative state structure to oversee it
all. In other words, it will build itself a
"School of the Americas." The evidence is
overwhelming: torture intended as a security tool
will always morph into an instrument of power.
That alone justifies a total ban on torture.
Finally, how much leniency should a judge extend
in hypothetical cases of torture that
demonstrably save lives? It would seem wise to
grant judges enough sentencing discretion to keep
would-be torturers in the dark and induce them to
proceed on worst-case assumptions. Just as
torturers may not invoke the Nuremberg defense,
so anyone who orders torture, directly or by
proxy, must be held legally responsible. Wartime
torture admittedly poses a conundrum. There is
empirical evidence that it is an inevitable
by-product of aggressive warfare. If so, it may
thus fall under the rubric of war crime (like
executing children) and lose its categorical
singularity. The issue of punishment becomes more
complex. In theory, the jurisprudence on war
crime should provide the relevant legal
authority. Right, but in theory war criminals are
dragged before a judge even when their side wins the war. In theory.
If torture is illegal at home, subcontract it
overseas. Extraordinary rendition is the process
of handing suspects over to third-world dictators
with the promise that they won't be tortured and
the certainty that they will. If only because of
the rank hypocrisy behind it, one should not
extend to rendition the customary distinction
between directly causing harm and merely allowing
it. If anti-torture activism results only in
increased rendition, what is being morally
gained? Torture is barbaric; rendition is
barbaric and hypocritical. It must be an integral
part of the fight against torture.
III. Why Not All Torture Decisions Should Be Morally Codified
Most opponents of torture would declare the
matter settled: always immoral; always illegal.
They would be wrong, for neither morality nor the
law can answer the question: were you to face
your daughter's kidnapper, may you torture him?
The answer, whatever it is, must remain
unjustifiable, so as to impose upon you, and you
alone, the full moral weight of your action. This
is the only subtle point of this essay, so I'll
begin with a gentle introduction.
There are two common objections to the TBS
question itself, neither of them wise. One is
that it is a trap set up by torture lovers to
force a small concession from their opponents,
shift the debate to "settling the price," and
then gloat: "See, we agree!" Of course, it's used
as a trap. But the question is legitimate, in
fact necessary, and the dreaded shift is easy to
avoid. The second objection is that "it never
happens," so why even discuss it? This collapses
on three grounds. First, the claim is unprovable.
Second, if it never happens, why should you care
about the moral outcome? (Do you worry about my
ethical take on green Martians?) Perhaps you care
out of concern for torture creep: if so, address
it on its own merits. Third, the philosophical
value of hypotheticals is undeniable. Yes, the
field of ethics has been hard on fat men being
shoved in front of trolleys, but as in
mathematics these "singular" points can be the
lampposts that light up the dark street. Just as
the corners of a triangle tell us all there is to
know about its shape, so extreme cases help us read our moral compass.
The unease that accompanies the discussion comes
from elsewhere. It stems from a confusion between
morals and ethical codes, ie, between moral
principles and the decision processes by which we
make moral choices. Morality is about right and
wrong. A moral (deontological) system may include
specific injunctions, "Do not kill," as well as
abstract precepts, "The Golden Rule." It is
preferably universal in a Kantian (negative)
sense, in that it should, at the very least, not
contradict its adoption by everyone else: "I may
leave a restaurant without paying for my meal"
cannot be a moral maxim, for its wide adoption
would quickly cause all restaurants to close
shop, which in turn would contradict my desire to
eat out. Moral systems consist mostly of
intuitive, a priori judgments, unshackled from
the need for empirical validation. Lying is wrong
and so is tormenting a child. These are truisms.
But what do we tell a terminally ill child who
asks: "Am I going to die?" We lie, of course. Are
we thereby signifying that honesty is less
important than compassion? Not at all. For
example, most of us would agree that empathy may
not always excuse perjury. Honesty and compassion
are both universal moral values, but their
relative ranking may vary depending on the
context. Unfortunately, there is no simple rule
to tell us which should prevail when. We can
always follow our moral intuition. But that can
be dangerous: hate, self-interest, prejudice,
biases can be all too "intuitive." And we are all
so good at lying to ourselves.
Far better for us to turn to an ethical code, ie,
a decision procedure to convert our moral beliefs
into action. To guard against egoism, we'll try
to make it universal so others might want to
adopt it, too. We're all familiar with ethical
codes: etiquette; chivalry; just-war theory;
political ideologies, etc. The conservative code,
for example, tells us that the best way for
government to help the poor is not to help them
at all. This is so weird we might never have come
up with anything like it on our own. But it meets
the three criteria of an ethical code: it seeks
to match our actions with our morals; it is not
self-evident (if it were we wouldn't need it);
and it is effective (it helps us identify whom to vote for).
The ideal ethical code would be a big
handbookinfinitely long, to be precisewith,
next to each possible situation, a list of moral
actions to choose from. This being somewhat
unwieldy, a code will look more like an
"algorithm," ie, a coherent set of interconnected
generalization and abstraction rules based on
representative cases that mesh with our
intuitions. A perfect code would have to be
complete, meaning that it covers all cases, but
that is unrealistic. We might hope for it to be
sound, ie, never to prescribe actions that
violate our moral intuitions. To fix such
violations, Rawls suggested tweaking rules and
intuitions back and forth until we reach some
sort of stable, "reflective" equilibrium.
Inevitably, an ethical code will be on occasion
intractable, meaning that it may actually tell us
not to do X in situation Y but we're just too
dumb to figure that out by the time Y has passed.
The complexity of a code must be honored. It is
in fact unethical to gerrymander moral boundaries
to make it easier to lead a moral lifeBush tried
to do just that with his "You're with us or
against us." Naturally, to adopt an ethical code
is itself a moral decision. (The vigilant reader
will immediately spot the self-referential
implication but I'll leave that one for another day.)
It is beyond dispute that an ethical code that
advises us to lie to the dying child can be
sound. But can all moral dilemmas be resolved by
sound ethical codes? No code can be expected to
be complete and always tractable, so the only
reasonable answer is no. Fine, but what about
torture? A ruling cannot be derived a priori,
unless perhaps one considers torture a wrong
universally greater than all others, a
proposition clearly untenable. So what do we do?
David Luban argues on incompleteness grounds that
moral systems (hence ethical codes) should not
apply to TBS. I agree, but for somewhat different
reasons. I plant a flag right in the middle of
the TBS swamp with the sign, "No Ethical Code
Here." By that, I am not simply stating the
impossibility or intractability of always
reaching a decision via a universal code,
something of which I cannot be sure. Rather, I am
decreeing it. I disallow any code for TBS not
because I have to (Luban's position), but because
I choose to. My rejection of an ethical code
appeals to an existentialist intuition. If
morality is going to be incapable of helping us
decide, then our choice should engage us fully so
as to avoid any rationalization. It should be the
ultimate act of free will. The would-be torturer
must accept full moral responsibility and be
denied both alibis: "My code made me do it" and
"I was confused." The latter says that even
incompleteness is no excuse. Here is a quick explanation.
Considering the real-life story of a young
Frenchman in the 1940s torn between his urge to
fight the Germans to avenge the execution of his
brother and his desire to stay with his
heartbroken mother, Sartre reviewed various moral
systems to highlight the difficulty of teasing
ethical guidance out of them. His point was that
ethical codes are dressed up as advisory devices
when in fact they serve only justificatory
purposes. In other words, how do we know that
ethical codes aren't rationalization engines in
disguise, mechanisms for evading responsibility,
sophisticated dodges? This points to the
exculpatory nature of an ethical code. The neat
thing about being advised, you see, is that we can always blame the advisor.
Sophie is given a choice: to kill one of her two
children or have both of them killed. She has no
choice but to act immorally. This is not my
judgment but hers; more accurately, it is an a
posteriori inference from the knowledge that
she'll be racked with guilt for the rest of her
life. Sophie's choice falls within the world of
morals but beyond the human reach of moral
guidelines. The injunction, "Spare the child
who..." is morally impermissible. Sophie is thus
able to act in a way that, though necessarily
immoral, is not ethically mistaken. No one can
ever tell her, "You saved the wrong child." In
fact, we so believe that no ethical code should
apply that we'd be shocked to hear Sophie justify
her choice by appealing to some holy book
claiming that God prefers, say, older siblings.
"My religion made me do it" would reek of bad
faith (in the Sartrean sense of self-lying) and
suggest that perhaps Sophie preferred her older
child but blamed her faith instead. It is morally
imperative for her to renounce any ethical code
and take full responsibility for her choiceor,
as an existentialist would put it, to admit that she is condemned to be free.
The kidnapping story is identical except in one
key aspect: the temptation of a code. Faced with
the kidnapper and the mental picture of your
daughter imploring you to do everything in your
power to save her, your intuition is likely to
whisper in your ear, "Torture the bastard!"
Unlike Sophie's, your choice may even seem
entirely obvious. This intuition may help you
decide but, even after integrating the moral
relevance of family, it still violates the
deontological constraint of treating torture as a
universal moral wrong: after all, your intuition
might be quite different if the "bastard" were
your son and the captive girl the past killer of
your daughter. To give up on an ethical code
altogether may be quite difficult, in fact. But
this is the only way to respect the absolute
wrongness of torture. If you're going to do it,
you'd better be ready to "own it" and take all
the blame. In this instance, free will implies
carrying out, and accepting to carry out, your
own decision in the belief that you would do it
again in the future. In other words, neither of
these excuses is acceptable: "I was foolish"; or
"I did what I thought was best but that was against my will."
Consider a variant of TBS where torturing one
person prevents the torturing of two other people
elsewhere. Should you do it? Basic utilitarianism
of rights says yes. The danger is that moral
calculus is nothing but the exercise of an
ethical code, hence a rationalization. I am not
saying this is not allowed to influence your
decisionone cannot shield oneself from all moral
calculus. I am saying that in the end you must be
the only owner of your decision. You must accept
the guilt for your action as the necessary
consequence of your freedom and you must reject
any attempt to justify your choice. What if you
are ordered to torture? Assuming a moral choice
is possible, ie, disobedience is not punishable
by death, you should refuse to torture unless you
are confident that you would give the same
orderwere you in a position to do soif you also
knew that you had to carry it out yourself.
(Merely believing that you would give the order is not enough.)
The final verdict on torture: always wrong;
always illegal; always unjustifiable.
Bernard Chazelle is a professor of computer
science at Princeton University and author of
<http://www.cs.princeton.edu/%7Echazelle/book.html>The
Discrepancy Method: Randomness and Complexity. He
can be reached at: <mailto:chazelle at CS.Princeton.EDU>chazelle at CS.Princeton.EDU
Freedom Archives
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