Sunday Night Journal — October 8, 2006
Torture: Safe, Legal, and Rare?
I dare say not one American in a hundred really understands the legal and diplomatic niceties surrounding the interrogation and detention of suspected terrorists. That in itself ought to be cause for grave concern, because if any people on earth ought to know the mischief that can be done by lawyers crafting and interpreting complex laws, we should.
Setting the lawyering aside, looking at it through the eyes of ordinary common sense, it seems to me that we are going where we shouldn’t. To search for loopholes in a moral principle is most likely to have violated it already in one’s heart. And even if you find the loophole you ought not step through it. But I’m afraid that the Bush administration’s sidling up to torture is just such an effort. This seems like a textbook illustration of the aphorism that hard cases make bad law.
Let’s suppose, for the sake of argument, that there are extreme circumstances where it might be morally justifiable to inflict pain on someone to thwart a grave crime. I’m not at all sure that this is true, but, as I say, for the sake of discussion, suppose the most persuasive sort of case: a genuine ticking-bomb situation, where the timer on a nuclear device hidden somewhere in the heart of Rome is counting down, and the police have captured someone who is known to be involved in the plot. Let’s make it even more airtight—let’s say the person is bragging of his involvement, convinced that no one can now prevent the detonation. Would the police be justified in inflicting pain on him in an effort to make him reveal the location of the bomb?
Suppose the answer is yes. Would it be advisable to pass laws allowing torture in such a case? How could you specify with precision, in advance and in the abstract, the seriousness of the calamity to be averted and the level of certainty about the person’s involvement that would have to be met? How could you be sure you had stated these in such a way as to make it extremely unlikely that an innocent person would be tortured, or that it would not be used under circumstances less grave than intended? Wouldn’t you expect that the very existence of such a law would almost guarantee that it would be abused?
That’s the nature of the rules we make for ourselves. Wherever the line is drawn, we can assume that people will cross it. To pass laws allowing torture in some circumstances, however limited they may be, is to declare it fundamentally licit, and its use a matter of judgment on the part of those most likely to be tempted to employ it.
That’s part of the reason why Bill Clinton’s famous sound-bite compromise on the abortion problem—that it should be “safe, legal, and rare”—is empty, even if those who advocate it are sincere. If it should be safe and legal, there must not be anything essentially wrong with it, so why should it be rare? Since it provides an apparent solution to a serious problem, it will be used fairly frequently.
A better approach, it seems to me, is to think of scenarios such as the ticking-bomb one as similar to the case where a starving man steals food. Because no reasonable person (in our culture, at least) would blame him, we would expect a sensible administration of justice to let him off with little or no penalty. But we don’t set about trying to modify the laws against theft to try to accommodate such cases. That’s partly because the excusable circumstances are too subtle: how hungry does the man have to be? How hard must he have tried to get food by normal means? Etc.
Suppose, in the scenario above, that the police are operating on the assumption that torture is both wrong and illegal. Under those conditions—the impending nuclear destruction of Rome—they might, in desperation, start, say, breaking the man’s fingers. Suppose then that he reveals the location of the bomb, and the city is saved. The right thing for the police to do, then, is to confess and throw themselves on the mercy of the law. Or perhaps, as in the closing scene of Casablanca, the authorities to whom the police are responsible might simply look the other way. If this is hypocrisy, it is not as grave a sin as calling evil good, which would be the effect of legalizing it.
What makes the administration’s approach even more pernicious is that there does not seem to be any claim that “stressful interrogation” is confined only to the rare ticking-bomb sort of situation. It would be (and is being) used on persons who are only suspected of involvement with groups that might be plotting attacks. It’s probably safe to assume that this will result in the mistreatment, possibly the grave mistreatment, of people who are either innocent or, if not entirely innocent, not in possession of the knowledge the interrogators want. What could be worse than to be tortured for information one does not possess?
And about the word “torture”: Mr. Bush says “we do not torture.” It appears that he can say this because he is defining torture to mean only gruesome and damaging violence, excluding the relatively mild techniques that we are widely said to have used. But I don’t see how it can reasonably be claimed that waterboarding is not a form of torture, notwithstanding the fact that it doesn’t produce permanent physical injury. And threatening to kill a man’s children is psychological torture which we did not hesitate to condemn when it was used by the Iranians who seized the American embassy in 1979.
Commenter Francesca on the Caelum et Terra blog cites an observation by Elisabeth Anscombe: “If you want to turn young people into relativists, you think up some impossible situation, some 'what would you do if....' and since they can't think of a moral way out, they give up the moral principle altogether.” Exactly, although it doesn’t have to be a strictly impossible situation, just a terribly difficult one.
Along the same lines, I’ve remembered for thirty years something an Episcopal priest told me he’d heard from one of his seminary professors: that Americans even more than most people have serious difficulty coping with the concept of original sin, that they want to conclude that “if it’s a sin you ought to stop doing it, and if you can’t stop doing it, it must not be a sin.” Maybe some such psychological tension is a factor in the American need to resolve moral quandaries with a network of regulations. Better to keep it simple: torture is wrong, and we shouldn’t do it.
A note: although I’m a Catholic and consider myself bound to the moral teachings of the Church, I haven’t mentioned the Church teaching on this subject here because I want to put the argument in terms that are not specifically Catholic. But here is what the Catechism says:
Torture which uses physical or moral violence to extract confessions, punish the guilty, frighten opponents, or satisfy hatred is contrary to respect for the person and for human dignity.
(The text is here—scroll down to Section 2279.)
I note that there is no mention of anything comparable to the ticking-bomb scenario—torture used to prevent a grave and imminent crime—unless it’s to be subsumed under extracting confessions. Whether this language was intended to leave such a possibility open or is an accidental omission, I’ll leave to the teaching authority of the Church. It doesn’t affect my conclusion as to how we ought to act, and how we ought to write our laws.