Topic: Government & Politics

Clearing the Ethical Fog in the Torture Debate
(5/26/2009)

The Ethics Scoreboard tries not spend a lot of time discussing the obvious, or the issues that are already receiving solid ethical analysis from broadcast, print, and web-based media. But the ongoing debate about the Bush administration’s use of torture on some captive terrorists is getting less enlightening and more misleading the longer and more heated it becomes. Because I have the happy circumstance of being consistent on this issue, and before the political posturing, rationalizations, euphemisms, hypocrisy and spin melts my brain, the Ethics Scoreboard will now attempt to blow the prevailing fog away, and clarify some controversies, many of which really shouldn’t be controversial.

I. “Enhanced interrogation” is an intellectually dishonest euphemism for torture, as misleading as “choice” for abortion, and as deceitful as “undocumented worker” for “illegal alien.” The phrase focuses on the objective and the result, which is useful military intelligence, rather than the methods used to obtain the result, even though it is the methodology that is the problem. Adding cruel and painful methods to a legal interrogation cannot “enhance” it, as enhance is generally understood to mean “to made better.” Something that is inherently wrong and bad cannot make anything “better.” Advocates for using torture under certain circumstances, like former Vice-President Cheney, have a right to make their argument, but they also have an obligation not to make it deceptively. If they want to argue for torture, they have to deal with the word.

2. A nation like the United States, and there is none, established on absolute principles of human rights, must never engage in a per se violation of human rights. Of course, it has in the past, always under a mistaken belief that an activity wasn’t such a violation. We countenanced slavery, and segregation, until time and developing ethical sensibilities revealed that it was contradictory to our core values. We engaged in genocidal policies against Native Americans, by applying, and accepting, various rationalizations (“destiny,” “self-defense,” “progress”) to excuse them. Nevertheless, the fact that the nation has periodically failed to meet its own stated ideals does not make more recent failures any less offensive or more acceptable, or decrease the burden of persuasion those who advocate yet another betrayal of Thomas Jefferson’s words.

If the United States only survives by abandoning the principles that established it, then it hasn’t survived at all.

Torture is an absolute wrong for America, like slavery or genocide. It should not and must not be used as a part of an utilitarian equation. No end justifies its use as a means. It must be “off the table” as an option, no matter what the exigency. The “24” type hypotheticals, the Alan Dershowitz “but what if?” arguments, reduce the rationale for or against torture to simple practicalities, and disagreements to matters of degree: “Torture is always wrong to save the life of a hundred soldiers, but to save a thousand New Yorkers from nerve gas, you’d have to consider it.” “No, a thousand isn’t enough, because torture is wrong. But a million lives, well, that’s different!” The point is, it isn’t different---not if torture is absolutely excluded from the options available to a nation established under the Declaration of Independence and the U.S. Constitution. If Jack Bauer wants to get a terrorist to tell where he planted the ten bombs, he has to find another way.

3. Waterboarding is, was, and will always be torture, no matter how it’s done. Yes, I know the C.I.A. method, unlike the “more brutal” versions used by the Chinese and others, “just” simulate drowning without actually letting water enter the lungs. The problem with the rhetorical maneuvering is that the international definition of torture is air-tight. The 1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which came into force in 198y, defines “torture” in Article 1 as follows:

"The term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession."

Lawyers and politicians and former Vice-Presidents can play games with words like “severe” and “suffering,” just like Bill Clinton could play games with words like “sex” and “perjury,” but we know (and they know) that strapping someone to a board and making them feel like they are going to die meets any honest definition of torture. There may be legitimate arguments to be made about so-called “stress positions,” bright lights, loud noises, sleep deprivation or having “It’s a Small World” played over and over again, but waterboarding doesn’t even have a toe in the gray area.

4. Once we accept the fact that waterboarding meets the internationally recognized definition of torture, the fact that there are other, worse kinds of torture is irrelevant. True, I’d rather be waterboarded than have hot bamboo splinters stuck under my fingernails, or be left on a hill of fire ants, but it doesn’t matter: torture is torture, and the United States can’t engage in it. Nor does it matter how many individuals were tortured, or how many times. One is too many; once is unacceptable. Again, if torture is absolutely outside American cultural values, a single officially sanctioned instance constitutes a significant and dangerous breach of them. Torture justified once still is torture justified: if it can be legitimately used on one individual, however contemptible and vicious, however useful his knowledge might be, then we have accepted torture, and discarded our national commitment to the inherent rights of all human beings.

5. The argument made by a wide range of apologists that the brutality of Muslim extremists and terrorists somehow reduces our ethical standards is offensive, facile, and wrong. Lynndie England, the dim-witted Abu Ghraib guard who became that scandal’s cover girl, talk show host Sean Hannity and others justify American torture because we “didn’t cut off Nick Berg’s head” or “kill 3,000 innocent Americans.” This suggests that America’s values, rather than being set in tradition, ideals, morality and aspiration, simply expand or contract according how inhumane and barbaric our adversaries are. Such values embrace no values at all. It is “Dirty Harry” logic: in the classic film, Clint Eastwood’s tough police detective tortures a serial killer to get him to reveal where he has buried a young girl alive. The film chides the legal system for then releasing the killer to kill again (Clint violated about six Constitutional provisions in his interrogation and investigation), making the argument that really, really bad guys don’t deserve rights. That proposition, however, is explicitly rejected by the words of our founding documents.

Personally, I don’t feel badly for terrorists who suffer, or those who are killed, just as I, like most Americans, find it difficult to be passionate about addressing the terrible prison conditions in this country. I just do not feel pity for bad people who do terrible things and then have bad things happen to them as a result: I did not feel sorry for Lee Harvey Oswald when he was murdered by Jack Ruby, for example. That is emotion at work, however, not ethics. One of the essential uses of ethical principles is to keep us focused on values when our emotions are roiling.

6. The debate over whether useful information was obtained through torture is also irrelevant. Once we conclude that torture is absolutely wrong, whether it is sometimes useful, always useful of never useful doesn’t matter. Would we argue about the legitimacy of slavery by trying to prove that it could really perk up the economy? I’ll stipulate: yes, some information the CIA obtained through torture saved American lives, and maybe many American lives. America can’t engage in torture. Or let us assume that the some voices on other side are right (though I doubt it greatly) that torture never acquires good information. So what? America can’t engage in torture. Tell me I’d never be happy married to Ann Hathaway, or that my Rolls Royce would be hard to park: I’m never going to find out if you’re right or not, because these things cannot occur. Making the argument against torture by attacking its utility concedes the dispute to torture advocates, who will say, “So if I can prove it works, then, you will withdraw the objection?” The answer to that question has to be “No.”

Let’s stop arguing over the utility of techniques that can’t be used anyway.

7. Also ethically irrelevant is President Obama’s empty argument that torture is wrong because using such methods...

“...alienate us in the world. They serve as a recruitment tool for terrorists, and increase the will of our enemies to fight us, while decreasing the will of others to work with America.”

Many of America’s core traditions and fully-justified activities “alienate us in the world.” Capital punishment, for example, is much derided in Europe; that doesn’t make it wrong (or right.) Capitalism, freedom of religions and speech, and women’s rights all alienate America from radical Muslim societies, and serve as a recruitment tool for terrorists. If methods of torture were shown to be legitimate, ethical, legal and valuable methods of saving American lives, would the fact that they alienated foreign countries and were used for terrorist recruitment be sufficient reason to abandon them? If using torture made America more popular in the world, would that be a good reason to employ it, even if we concluded it was absolutely wrong?

No, and no.

8. There is no legitimate justification for taking legal or disciplinary action against the Justice Department lawyers who wrote the so-called “torture memos.” Lawyers are advocates; that’s one of their jobs. A lawyer who is asked to “make the best legal argument possible to make the case the United States can use torture under certain circumstances” is required only to make a good faith and competent effort to do so. The lawyer doesn’t have to agree with the objective, or even believe that the argument he or she makes will prevail if challenged. A “here’s how to break the law” memo is both unlawful and unethical, but a “here is a way to engage in torture within the laws” is standard legal work. The responsibility for acting on such a memorandum is the client’s, and only the client’s. When current Attorney General Eric Holder received a non-partisan opinion from the Office of Legal Counsel that the bill granting voting representation to the District of Columbia was unconstitutional, he requested an advocacy opinion from a Justice Department lawyer making the argument that it was Constitutional. This is exactly what was done on the torture issue. I am confident that a Constitutional amendment is the only way to legally grant D.C. the representation it deserves, and I believe that torture violates international treaties and U.S. law. That does not make the construction of a contrary argument unethical or illegal in either case.

9. There is a legitimate ethical argument for the use of torture under a utilitarian construct. The argument is, simply, that a nation has a right to protect itself against catastrophic violence and destruction, and the leaders of a nation are bound to do everything within their power to see that a nation’s citizens are so protected, including, if absolutely necessary, torture for the purpose of uncovering deadly plots and conspiracies.

This is essentially Vice-President Cheney’s position, and was the policy of the Bush Administration. It was also the policy implicitly approved by the American public in the period after 9-11, and thus accepted by the elected officials of both parties at that time. I believe this position is wrong, and for the United States particularly, an unacceptable risk to the national purpose and ideals. I believe this would be true even if the so-called “Torture Memos” were legally sound, and the U.S. could engage in torture legally. Like slavery and discrimination, torture is unethical whether it is legal or not. But when elected officials, using a utilitarian analysis concluding that however wrong torture might be in the abstract, it is right to torture one individual to save the life of many Americans, to do this in what they believe is in the best interests of the country, and to have a good faith argument that it can be done within the law, there should be no subsequent attempts to punish the officials once the prevailing views or political winds shift.

The leaders of the United States after the attacks on the World Trade Center and the Pentagon were in an unprecedented situation, facing a different kind of threat from a new kind of enemy. It would have been wonderful, admirable and inspiring if they had shown the ethical certitude and political courage to resist the clear mood of the nation that the rights of terrorists were subordinate to the safety of America. It would also have been astounding. They didn’t. They were wrong. The best course now is to build a strong and lasting societal consensus that torture is un-American, rather than pretend that this was always universally accepted by the public. It was not, and still is not.

10. Speaker Nancy Pelosi’s position is untenable. Whether she was told that the CIA had used methods of torture, was using them, or was preparing to use them in the future, if she believed these methods were inappropriate and criminal, she had a duty to do what she could to stop them.

She was not powerless, as she now claims; no U.S. Senator or member of Congress was powerless. Any of them could have sought the passage of a resolution condemning torture, enumerating specific examples. Any of them could have “blown the whistle,” gone to the press, or even resigned in protest. They could have sought an advisory opinion from a Federal Court. Despite the extreme accusations of the most avid Bush Administration-haters, nobody was going to be shot. This wasn’t the Third Reich. If the torture was truly illegal, no official was going to be prosecuted for stopping their government from engaging in a crime. Pelosi and others did nothing either because they were afraid of public disapproval, because they agreed with the measures at the time, or because they felt the easiest course was to go along with the prevailing sentiment. They were not willing to take the political risk of limiting CIA interrogation methods and then being blamed later when a “dirty bomb” took out Chicago.

That is sad, cowardly, and typical. But no officials who by their silence and inaction aided and abetted the use of torture can fairly lead an effort to punish the torturers, unless they accede to the same punishment themselves.




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