Torture Redux

Mr. Donald writes further to my post on torture -- and the place for government torturers (if any):

Your answer suggests that you, like myself, would in that given case promptly set to work torturing the suicide bomber, and would be right to do so.

The government's special privilege to commit violence is already dangerously great. If we added to that a special privilege to commit torture, the danger would be greatly increased.

At the same time, it is absurd to take the position that no one anywhere ever should ever employ torture. Realistic situations arise, and arise frequently, when torture is right.

I say that the law should recognize such situations, without giving government functionaries any special privilege to torture not possessed by anyone else facing terrible enemies.

I'm not sure exactly what that last line means, but I think we're pretty close on the "reasonable" approach to torture.  Keep it illegal in all cases.  No one is free to torture in under the aegis of the government; you are solely responsible for your actions.  But, in the extraordinary case, I think we all recognize that legality won't matter a whit.  The ticking nuclear bomb and whatnot -- if the torture saves a thousand lives, the torturer is going to walk out a hero.  (That's why it's called the exceptional case.)

Comments

[fdl]

but the law does already recognize such situations -- there is prosecutorial discretion in bringing charges, and there is the presidential pardon power.

i think that as long as the president commits to a policy that the US does not use torture, and commits to having strong independent oversight by military prosecutors over credible allegations over the use of torture, then we have set the right course.

CIA and DOD bully boys should do their own dirty work and not subcontract out to Syria. Knowing that they are facing 10 years in Leavenworth if the prosecutor doesn't agree about the imminence of the harm facing the country should result in better interrogation and, one hopes, better intel.

Francis

[loulou]

one of the things fascinating with you anglo saxons is the respect of law! we dont have such a thing in france (we are backwards in that area and burdened (?) by the raison d'etat (state dominates all??).
the debates in our country (after algeria and other unsavoury experiences) is that torture must be denied (if it happened) or held accountable for (culprits must be punished if it cannot be denied or explained). One of the worry/sadness/strength is that people in my country dont care:
thats one of the most wonderful thing you have in your country: people discuss this before (its important) not after (as a mental exercise)!!!
especially on this blog, i was overwhelmed by the various contributions( Katherine, Hilzoy, sebastian, yourself...) on that topic!!!!
once more thanks a lot to you and your readers for making me think!

[praktike]

FYI

[Slartibartfast]

one of the things fascinating with you anglo saxons

Being that I'm nearly half french, the dividing line between thee and me isn't quite as sharp as you might wish.

[daveb]

When will the torture advocates recognize that if the US can 'legally" torture an enemy that they allow for the torture of US combatants (military & otherwise)?. Where is their 'Christian' morality-does the New Testament version of the Golden Rule no longer hold or is strictly reserved for believers in the US and not those foreign heathens?

[Anarch]

Being that I'm nearly half french...

Dear God, Slarti. You're allowed to admit that in public? Won't the VRWC seize your decoder ring?

[Sebastian Holsclaw]

We figure it lets Slarti be a spy into the inner workings of the tricksey French mind! So he gets to keep the VRWC electroshock, I mean decoder ring.

[Doug Muir]

von --

Just FYI, James Donald is a well known... character... in certain corners of Usenet.

Google his name and "Ming the Merciless" for a representative sample. (Darn that Emperor Qianlong!)

Doug M.

[felixrayman]

But, in the extraordinary case, I think we all recognize that legality won't matter a whit. The ticking nuclear bomb and whatnot -- if the torture saves a thousand lives, the torturer is going to walk out a hero.

Von, is there any crime so repulsive that you would assert it could not be justified in "the extraordinary case", or do you believe the ends will always justify the means?

[Catsy]

Von, is there any crime so repulsive that you would assert it could not be justified in "the extraordinary case", or do you believe the ends will always justify the means?

That's not really fair, and it's a false dichotomy to boot. Saying that there's always something extreme enough to warrant a horrible act isn't the same thing as saying the ends will always justify the means. It's actually quite nearly the opposite: it's acknowledging that the ends /don't/ justify the means, and that extraordinary circumstances that warrant those acts are just that--an exception to the rule.

Give me enough time, and I could come up with a scenario wherein I would choose to gun down a line of little girls in front of their mothers, or far far worse, if I thought it was the best or only way to stop something even worse from happening. I believe that you could construct such a scenario for /any/ person and /any/ act, if you know them well enough.

That is why approaching this subject by talking about the extreme circumstances in which torture is justified is usually just a dishonest, bullshit evasion. It's ultimately meaningless, and when someone defensively points out that "we can't rule out torture because it might be necessary to stop ____ from happening", they are not dealing with the subject honestly--that, or they have a dictionary-challenged threshold for what they consider "extraordinary" circumstances.

[Jesurgislac]

Felixrayman, I think that Von thinks he's right pragmatically: if the ticking timebomb situation were to occur, and if someone managed to locate the timebomb by torturing a suspect who might know where it was and confessed under stress, then it's very likely that he, she, or it would receive a light sentence, be acquitted, or even not be prosecuted at all.

But given how unusual such circumstances would be - and given that it's actually pretty unlikely under those circumstances that fixating on torturing a suspect would be helpful at all - I think it would be wrong to hold out any hope to the torturer that they would get away with it if they succeeded, because it would be rather like telling a doctor "Ordinarily, we don't let you pack cow manure into an open belly wound to ward off devils, then leave it to ferment for forty-eight hours, because it would kill the patient and do no good. But, under these special circumstances, when we don't like the patient and you really want to do it, we won't let you be prosecuted for malpractice if you do this."

On the other hand, acknowledging that pragmatically someone who got away with torturing a suspect (because it apparently saved the day) is unlikely to be prosecuted, at least saves Von from debating an endless line of torture-defenders for whom that is their first, last, and only line of defense.

[Jesurgislac]

Eh. While I was thinking it through, Catsy already said it better.

[Dean]

And what will you say to the torture victim who turns out to be totally innocent? How will we respond to the torturer who made the wrong call?

[felixrayman]

Felixrayman, I think that Von thinks he's right pragmatically: if the ticking timebomb situation were to occur, and if someone managed to locate the timebomb by torturing a suspect who might know where it was and confessed under stress, then it's very likely that he, she, or it would receive a light sentence, be acquitted, or even not be prosecuted at all

I understand all that, I just want to know if there is any act so heinous that it would be off limits (as far as post hoc forgivability goes) even given whatever contrived scenario might be offered up to justify it. I am trying to understand a line of thought that is alien to me so I am asking about corner cases.

I don't mean to insult von (and apologize if I have done so), he has actually stated the problem quite well.

[liberal japonicus]

This post by Belle Waring at Crooked Timber needs to be put up whenever we have this discussion.

(This is not to bust anyone on felixrayman on this, it's just to show how ridiculous this all becomes without some sort of concrete context)

[felixrayman]

I disagree with that post, specifically:

Now, does anyone think you shouldn’t torture that one child to death, under the circumstances? No.

My answer would be yes. I am trying to understand those that would say no, and so far failing in my attempt. My moral values are not contingent on the behaviour of others.

[liberal japonicus]

Like I said (though it should have anyone 'or'), I think that the whole problem lacks context, so it doesn't really help to talk about it. I mean, this is choice at the heart of _Sophie's Choice_. You may take issue, and point out that Sophie didn't have to torture one of her children, just choose the one who was to be killed, but it's the same kind of choice, the same kind of conundrum. You may say that you would never do it, no matter what the stakes are, but the question is not whether you would do it, but would you condemn someone if they did it.

I really abhor all kinds of bullying, especially under the guise that the bully 'is doing this for your own good', so I would like to think that I would be able to say that I would have the moral courage to say no, I'm not going to choose, you choose and be damned, but the fact is that what we should hope for is that we are never put in that position where we have to weigh options like this.

Also (and again, this is not to blow off this conversation) but the context with torture is that it is necessary to dehumanize the victims or to separate them from the people who do the torture in some way. You suggest that we need to torture an innocent child, probably with big eyes and a stuffed doll. But any sort of torture would probably be preceded by a period of dehumanizing. The Milgram experiment did this by having people adminster shocks to someone in another room who they could hear, but not see. The Holocaust took place on the background of 2000 years of anti-Semitism that aimed to scapegoat Jews, and culminated in Nazi racial theory that made Jews into subhumans that were first exploited and then killed. Creating situations in Abu Grahib where inmates were not allowed to wear clothes, groom, bathe were a key to what took place, allowing their torturers to treat them not as humans, but as stupid animals, thus justifying (in their minds) how they treated them.

This is becoming random thoughts, but I have to think that torture is not some sort of special category, but it is on a continuum of violence. Perhaps you cannot understand or imagine how someone could want to hit someone because of something they said, or that someone could justify hitting a child because they thought that physical punishment was a valid way of teaching someone, that someone would feel that because their self-image was attacked that they could shoot and kill someone, or that someone could delude themselves into thinking that a woman was 'asking for it'. These things happen with enough regularity that I find it is not hard to imagine such things. In fact, the obnoxious passive aggressive is, in their own way, being just as violent as someone with a hair-trigger temper.

This comes off a bit aggressive, and I really don't mean it to, but my moral values don't exist separate from the people I love or even from my pragmatic view of things. Would I deprive someone of sleep if they had kidnapped my daughter? Would I balk at creating a situation that fooled the kidnapper into revealing where she was? Probably. Would I tolerate someone applying some sort of painful whatever to have them talk? Would I be willing to apply pain myself? I say no, but I know that I have done enough stupid things in my life to know that my opinion taken in the cool calm of reflective hypothesizing is not going to be the same as if it actually happened.

[Slartibartfast]

Dear God, Slarti. You're allowed to admit that in public? Won't the VRWC seize your decoder ring?

Well, I'm English and Irish in proportions that largely nullify each other, and what's left is German. Just in case the French part begins to dominate, though, the secret decoder ring also emits mind-control rays.

[Jesurgislac]

lj: but the fact is that what we should hope for is that we are never put in that position where we have to weigh options like this.

That I agree with.

The fact is, that most people living in our privileged circumstances do not know what they would do if it was a choice of life or death, or if they would have the moral courage to stand out against torture when everyone around you is treating it as a matter of course.

I know what I think the right decision would be. But (never having been put in that situation) I have no idea whether I'd have the courage to do what I knew was right, even knowing that my action would be condemned and vilified. No one who hasn't been tested in that way and overcome it has the right to take the moral high ground.

[von]

Lou Lou --

one of the things fascinating with you anglo saxons is the respect of law!

Well, I'm a lawyer, so I'm more "legally fixated" than most (it comes right before Freud's "oral fixation"). And, in any event, the law is all I have. (Sniff.)

Francis --

I understand all that, I just want to know if there is any act so heinous that it would be off limits (as far as post hoc forgivability goes) even given whatever contrived scenario might be offered up to justify it.

With respect to absolute rights and wrongs, I've described myself as an "ethnical agnostic" in the past -- by which I do not mean that I am agnostic about whether ethical absolutes exist. I have faith that they do. But having faith in the existence of absolutes is not the same as knowing more than their vague contours. (I take quite seriously the admonition against the sin of pride in my ethical thinking. It's ironic, I suppose, that I'm such a vain and prideful guy in my personal and professional life.)

So, in answer to your question: I don't know. I may be physically or emotionally unable to do certain acts myself (e.g., torturing chidren), but I probably wouldn't know the line until I've come to it -- and maybe not even then.

[von]

This post by Belle Waring at Crooked Timber needs to be put up whenever we have this discussion.

Aha! That was the post I was thinking of when I wrote (in my initial challenge) that "as someone said," and proceeded to talk about rationales for torturing seven year olds. Belle was the "someone." Thanks.

[crionna]

I say no, but I know that I have done enough stupid things in my life to know that my opinion taken in the cool calm of reflective hypothesizing is not going to be the same as if it actually happened.

That's the most true statement made on this subject yet. I remember thinking the same thing about German citizens in WWII when I visited Berlin in 2002. How could they do it? As Jes says, easy for us to say here and now. Difficult to say with the lives of your family at stake.

"I'm not a coward, I've just never been tested. I'd like to think that if I was I would pass." --Some swing band from the dot-com era.

[Jesurgislac]

But, in the extraordinary case

Despite everything, we keep coming back to that hypothetical "extraordinary case", and this recent post on TalkLeft just illustrates all over again that the hypothetical "extraordinary case" has nothing to do with the actual facts that we have to do with.
The full report is on the Human Rights Watch website. Should anyone decide to pick up Von's challenge for real, they need to be able to read that report and be prepared to defend what actually happened, and is still happening - not invent a scenario that suits them.

[liberal japonicus]

That's the most true statement made on this subject yet.

Should I be flattered or insulted? (^_^;)(Japanese emoticon representing a drop of cold sweat trickling down)

[crionna]

Heh, given the route posts have taken 'round here lately I can understand your concern :(

Flattered, unless you look up a definition and decide that "to praise somewhat dishonestly" is insulting, then just as an honest compliment.

BTW, I like the emoticon. That's a chuckle.

[Crock Pot]

"Some swing band from the dot-com era."

I'll take a guess. Who is "Barenaked Ladies"?

[crionna]

I'll take a guess. Who is "Barenaked Ladies"?

Actually, I can't recall. Big Bad Voodoo Daddy or something like that.

[Mark Shawhan]

I think it's actually the Mighty Mighty Bosstones ("the impression that i get")

[von]

The quotes from the Bosstones; Shawhan wins. And they're ska, not swing.

This seems to be the right time to set forth my radical theory of ska music: ska is traditionally described as a blend of reggae and punk -- but, as you might expect from a man proposing a radical theory of ska music, that's wildly inaccurate. If you want to hear reggae-influenced punk, you need to move closer to the oi-sound -- Operation Ivy or Rancid, f'instance (no surprise that those two are mentioned together, since they part-share a lineup). The key is to remember that reggae entered punk in part through the UK sound -- thus, the stange oi-reggae combom.

Indeed, this all becomes fairly apparent when you listen to a few bands. You'll hear the reggae right away -- and it will sound nothing like ska (Bosstones, Smoking Popes, Blue Meanies, et al.).

The correct roots of ska are in fact traced back to a blend of punk, big band music, and more than a little Mexican Mariachi Music. (FWIW, the fact I misspelled "mariachi" (I think) doesn't make it untrue.)

[JerryN]

Ska really predates reggae. Ska grew out of shuffle, which itself was a blend of earlier caribbean styles (calypso, esp. mento) and American jazz & R&B of the '50s. There was a ska revival in the late '70s that mixed in punk to the relatively primitive (compared to reggae) ska sound.

[Phillip J. Birmingham]

A good place to look up stuff like that is the All Music guide, at allmusic.com. It's one of my most-visited sites.