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Sunday, January 09, 2005
“Ve Haff Vays Uff Making You Talk!”
First, let's get one thing perfectly, indisputably clear: Your Curmudgeon is against torture, except when he's not.
The problem of torture is much like David Friedman's classic problem of property rights opposed to a life-saving action. This problem comes in two forms:
- Smith, a non-swimmer, has fallen into the water and will drown unless he saves himself by climbing onto a private jetty. However, as he does so, the jetty's owner demands that he cease his trespass at once, on pain of legal consequences.
- A machete-wielding madman is rampaging through a crowd, killing indiscriminately. Jones, a crack shot, could take him out, but the only firearm available is a rifle lying in plain sight on the front porch of a private home -- a home owned and occupied by a man who has let it be widely known that he will prosecute anyone who touches his property.
Reasonable persons would not halt at the legal threats of the misanthropic property owners in the above posers. For one thing, the preservation of innocent life is a higher priority than the protection of property rights. For another, no jury in the world would convict either Smith or Jones for a minor act of trespass committed in the circumstances described. But from a rights perspective, there is no question that to effect a greater good, a man's rights as they would be understood in normal circumstances must be violated.
Such questions fall within the sphere called "lifeboat ethics": the study of conditions wherein it is impossible to respect all the rights we would honor under normal circumstances, because the consequences would be too horrific to bear. The subject gets its name from the classic case of two men adrift in a lifeboat without any provisions. If neither acts, both will die, but if one kills and eats the other, he might live to be rescued. In such a situation, respecting the otherwise unchallengeable right to life guarantees that the worst possible outcome -- two deaths -- will arise.
The conditions that obtain before a terrorist act certainly look normal. At any rate, they don't much resemble a provisionless lifeboat. If a criminal suspect has a right to his life, surely he has a right not to be tortured, or threatened with torture. But we concede that under certain circumstances, a man can forfeit all his rights, including his right to life. Would such a forfeiture open the gates to torture?
And if the object of our attentions has not forfeited his nominal rights, but we have compelling reasons to believe that he possesses information critical to preventing a terrorist atrocity, what then? Just how good, how far beyond reasonable doubt, does "compelling" have to be? Who shall decide, and by what post hoc standards and procedure shall we judge him?
There are no easy answers. Nor have we addressed the problem in its entirety.
Torture is not merely an invasion of a man's bodily integrity in a quest for information. It's also a willful demotion of that man to a subhuman status. It requires that the torturer see his subject as a thing to be manipulated rather than a being with moral and spiritual status equal to his own. This applies equally to those who authorize or defend the practice. In its effects on its practitioners, torture is quite similar to slaveholding: it degrades all it touches, even when an airtight case can be made that there's no other possible way to save innumerable innocent lives.
This is not a path to be trodden lightly. But as with lifeboat situations, if one is placed on it by forces beyond one's control, the questions involved must be faced squarely.
Perhaps the best guidance ever offered on the subject comes from a novel, Fyodor Dostoyevsky's Crime And Punishment. Early in the book, a conversation between a pseudo-revolutionist and a policeman revolves around the justice of killing an old woman known in her neighborhood as a miser and a usurer. The young firebrand is arguing passionately in defense of such a deed when the policeman hauls him up short with a pointed question: would you do it yourself? For "If you would not do it yourself, there's no justice in it."
Imagine for a moment that Osama bin Laden, archfiend of Islamic terrorism, were in your power. Imagine further that you had excellent but not perfect reasons to believe that he could tell you of terrorist plots already in motion, which if consummated would reap thousands of lives, a toll on the scale of Black Tuesday. Would you torture him to learn what he knows, or would you refrain? If the former, would you expect your actions to be judged according to your intentions or your results? If the latter, what would your reason be?
There's a continuum between crude physical torture and other sorts of pressure. For example, there are several drugs which deaden the inner censor, allowing a skilled interrogator to elicit information from a captive that the captive would normally withhold. There are discomforts and threats that leave no lasting mark, but which can exert a great leverage upon a man's mind, according to his convictions and conditioning. There are even Mission Impossible-style deceits that can trick a man into revealing what he knows before he can deduce that he's the star of a charade. Measured against the strict standards of American criminal justice, all of these are beyond the pale. But if thousands of lives were at stake, what then?
To complicate the moral equations to unbearability, we have this: a disaster averted can often be characterized a posteriori as something that might not have happened anyway, or that might have been thwarted by other, more savory means. It's Monday-morning quarterbacking, to be sure, but it's a common consideration in the thoughts of police, FBI agents, intelligence operatives, and military interrogators.
For the present, a man who has tortured a suspect for information should have to stand trial for his deeds. He should have to justify his actions to a civilian jury, just as would any other man accused of a heinous crime. His prosecutors should have to convince that jury that torture was not the only way, or that the carnage the torturer foresaw and strove to avert existed only in his fantasies. And twelve good men and true should have to ponder whether, in the circumstances faced by the accused, they would have done it themselves.
There are no palatable alternatives.
Comments
The decisions you have to make in those situations you posit are tough, but second nature to someone who has a well-developed moral compass. Just as a marksman must train and train, and be sure of his weapon and his skills, the person who must make a moral judgement must cautiously and continuously exercise his skills, so that when the opportunity (or necesity) arises to make one of those judgements, it can be done quickly, effortlessly, and without hesitation or regret. I expect most of your readers have that compass; I expect reading here, and other similar places, is the regular exercise that compass needs, to always point true.
Posted by og on 01/09/2005 at 12:47 PMI found similarities in the reasoning you have expressed and the reasoning I try to use when debating strict anti-war libertarians.
A “compassionate” leftist will often argue that there is never an acceptable rationale for torture (and he usually defines torture very loosely). In his world, there are no shades of gray. Usually he denies the very possibility of “lifeboat ethics” situations - “No reasonable person would deny a drowning swimmer the right to cling to his boat”. Even the willingness to ponder torture as an alternative in any situation brands one as a barbarian, in the leftist’s view. The consideration of how many people might die as a result is immaterial.
Similarly, the libertarian isolationist will argue that there is never an acceptable rationale for pre-emptive violence. He also sees no shades of gray - the other party must *always* initiate force. Even contemplating pre-emptive war brands one as a barbarian, in their view. Consideration of how many people might die because of failure to take action is immaterial to them, or at least they seem to discount it completely.
The biggest difference is that, for pre-emptive war, the people making the judgement as to appropriateness are different. As you argue, a jury is the best place to decide whether torture was justified. For pre-emptive war, the ballot box is the only judgement mechanism we have.
By that standard, it’s time to stop arguing about whether the Iraq War was justified, and get down to the hard work of making the reconstruction work. Bush stated his intention to go to war before the 2002 elections, and was supported by the electorate then by having increased majorities in Congress (which is almost unprecedented for the off-year elections). He was then backed again in 2004 with an even more tangible victory.
Yet, in debating Iraq War critics, all I can get is “we had no right to invade Iraq”, and “we would have been in less danger if we had not invaded”, and even “if we’d hadn’t done X to the Muslims, then none 9/11 would never have happened”. No willingness to face the real world and make tough decisions about it.
The leftist critics of torture are and will continue to be the same way. There will never be a time in their minds to accept a messy real-world solution such as you have proposed.
Would that the world were as simple as those folks believe. In both cases, one can only try to communicate the fact that the real world is not diced up into the neat categories they wish.
This seldom works, I find. As Ed Koch is noted for saying, “I can explain this to you. I can’t comprehend it for you.”
Posted by on 01/09/2005 at 01:23 PMFrancis, you are a brave man to take on this subject. My first inclination is to agree with you. I do for the most part agree.
I then consider what if the person being interrogated had kidnapped my child, and was holding her in a secret location. I think it’s pretty safe to say I would willingly hook a pair of jumper cables to his delicate parts and flip a switch until I received the information I desired.
If we were in a tradtional type of war, I would say torture would not be necessary. The enemy state would be less likely to do things like blow up elementary schools, or drop a dirty bomb in Manhattan, for fear we would retaliate in kind. However, with these terrorists, there is no other state involved, so these guys can really play dirty, and ignore the codes of war, without worrying that we will return the favor to their hometown.
Never the less I can’t imagine myself really coming out in favor of torture, it’s too barbaric to stomach.
Posted by Heather on 01/09/2005 at 01:56 PMI hold two moral positions which are immovable, the first being the Wiccan moral code and the second being best phrased by Robert Heinlein.
The Wiccan moral code is traditionally phrased “An it harm none, do what thou wilt.” I will spare you the analysis and reference to other bits of moral guidance that lead to my point, and just make the point: in the end, that action which causes least harm is most moral. Given, for example, the choice between minor trespass and sparing a life or many lives, infringing the property right is more moral than failing to save the life at question. Given the choice between one dying and several dying, the lives of the many indeed outweigh the lives of the few, or the one. Given the choice between one certain death and two almost certain deaths, it’s harder, but the situation is clear if prolonged until the choice is one certain death or two certain deaths.
Heinlein’s bit of moral guidance was similarly stark: “I alone am morally responsible for everything that I do.” Any act one undertakes - any exercise of one’s will, in the terms used in the Wiccan rede - carries moral consequences, and the one who acts must accept those consequences. I would gladly shoot the sword-wielding maniac in the crowd, and surrender myself to the court’s judgment on whether my trespass and murder were justifiable or unjustifiable acts. Even were I condemned for murder, I would have done the morally responsible act by taking one life to preserve others, and the civilly responsible act by abiding by the judgment of my peers in the civil acceptability of my acts.
Posted by Jeff Medcalf on 01/09/2005 at 03:12 PMAlthough I’m no Wiccan, I agree pretty much with their moral code, in the sense he sees it. I also agree with Heinlein’s points.
So, answering your scenario, I would use any effective method to get that information (caveat: physical torture involving extreme pain is generally only effective in getting the person to tell you what you want to hear). I would also expect to be judged on what I did, not the results. However, my own judgement of myself would depend on the results.
Posted by Kathy K on 01/09/2005 at 07:51 PMKathy, physical compulsion that results in you hearing what you want from the subject is usually the result of leading questions.
Did you see Christine at the witchs’ sabbath?
versus
Who did you see at the witches’ sabbath?
The former was common in witchcraft persecutions - and modern intelligence officials know that is ineffective.
I am not saying this makes physical compulsion foolproof, but our guys know how to avoid leading a subject.
Posted by on 01/09/2005 at 09:49 PMIn Regina v Dudly and Stevens, the first criminal case most law students read, three people find themselves in a lifboat facing death. They draw straws killing the holder of the short so that the other two may live - which they do and are soon charged in the name of the Queen with murder. Rule: murder, no circumstance of need justifies taking a life, only self defense.
Queen later pardons D&S;, which is as it should be. I agree with FP. the world is an imperfect place and no set of rules will work in every circumstance. You do not craft your rules after thinking up some lifeboat situation. You set up the rules for most of the time. That they don;t always work perfectly is something you should accept. We seemed to have more clarity years ago - old black & white movie, father watches trial of murderer of son, guilt is clear but murderer gets off on valid point of procedure, father returns to courthouse and shoots murderer, going to jail himself. Filmaker does not call protections of accused into doubt, accepts justice will be imperfectly applied and sometimes to obtain justice individual must suffer great injustice. If I cold save a city but was stopped by a rule of law or morality, I might break it and take my chances - but we should not gut law and morality because we can imagine that situation.Posted by Doug_S on 01/09/2005 at 09:59 PMFrancis,
Funny you should reference David Friedman’s property rights arguments. That fact is, years from now, the question of torture will be obsolete. It will be replaced by “property rights.”The advancements in neuro-technology will allow Nano-imaging techniques on a molecular level. Nanotechnology will allow more intricate biochips and brain imaging. It will allow for the absolute manipulation of the central nervous system…inclusive of the brain. While, presently, there are various drugs that lessen inhibitive behavior; and remove the portion of the ability of the subject to withhold information. A complete control of the central nervous system would remove all barriers. There would be no discretion on behalf of the subject. However, “reading someone’s mind” is, arguably, a property rights issue.
Posted by IR on 01/10/2005 at 02:42 AMI haven’t put a tremendous amount of thought into this, but for me it comes down to this:
Would I be willing to accept punishment for doing it, and could I live with myself if I didn’t do it?
And to clarify a point above: “the lives of the many indeed outweigh the lives of the few”. This is only if you are talking about innocent lives. The lives of a few innocents vastly outweigh the lives of many murdering scum.
Posted by Ken Summers on 01/11/2005 at 12:27 PM
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