Tortuous Justifications

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It is a mistake to start with what we want and proceed to finding justifications for what we want. It has been a disaster for Americans, Iraqis and the world — spiritually, morally and intellectually — that our public intellectuals apply their talents to justifying and bolstering a position they support instead of honestly questioning and analyzing whether the position deserves support, spreading obfuscation instead of clarity, darkness instead of light.

On October 4th, the New York Times published an article revealing the existence of secret Department of Justice legal opinions supporting the administration’s use of the "harshest interrogation techniques." These memos were written shortly after the Justice Department appeared, by its public statements, to have "abandoned its assertion of nearly unlimited presidential authority to order brutal interrogations" and after the Congress moved to outlaw cruel, inhuman and degrading treatment. Some supporters of the practices rallied to the administration’s defense. In an article in the October 9 Wall Street Journal titled, "So Be It — The dangers of defining torture down," Bret Stephens warned against the danger of lessening the moral stigma attached to the word "torture" if certain persons (such as the New York Times), define the term down by improperly applying it to practices that do not really amount to torture. He also took strong issue with a recent editorial in The Economist that recommended that the administration end the use of these brutal methods and concluded that, even if many lives might be lost because of that, “so be it.” The Economist came to this conclusion because respecting “human rights is what it means to be civilized.”

Stephens’ article undertakes the task of upholding morality while simultaneously defending practices that he later tacitly concedes are inhumane and degrading. Specifically, Stephens seeks to defend the moral integrity inherent in a concept, so that we may be appropriately horrified when the word "torture" is accurately applied to the cases where it occurs and our interrogators and leaders know where the line is in inflicting pain and injury upon others, while simultaneously defending the actual inhumane conduct of interrogators and our leaders, which, he believes, does not rise to the barbarous level of "torture." A distinction this fine, an apology this ambitious surely merits some attention for the insights it may shed into the mechanisms of justification we, as a people, are now being asked to accept and employ in order to live with ourselves. Let’s see how it works.

Stephens states that "[t]orture is a word that preserves its moral force only when used precisely and consistently to denote uniquely barbarous acts. u2018The needle under the fingernail’ is one example. Simply to mention it causes most people instinctively to shudder." "By contrast," he goes on,

"u2018slaps to the head,’ among the examples cited by the [New York] Times of the administration’s u2018brutal’ methods, doesn’t come close to meeting any plausible definition of torture. The other examples — hours held naked in a frigid [50 degree Fahrenheit] cell; days and nights without sleep while battered by thundering rock music; long periods manacled in stress positions; or the ultimate, waterboarding’—come progressively closer to the line, and perhaps they cross it. But how do we tell?"

Generally speaking, it’s not a good sign when someone looking to defend a course of action adopts the posture that an ordinary word with a well-worn meaning and usage is a vague and problematic concept that cries out for precise elucidation. In such context, questions or statements like, "What is truth?," "And who is my neighbor?," "It all depends on what the meaning of u2018is’ is," and "But how do we tell (what torture is)?" are likely to be more indicative that the questioner is seeking an excuse or wiggle room for his — or others’ — actions, than that he is of a profoundly philosophical frame of mind seeking Socratic self-understanding or Cartesian certainty.

Webster’s defines torture as "1 a : anguish of body or mind : AGONY; b : something that causes agony or pain; 2 : the infliction of intense pain (as from burning, crushing, or wounding) to punish, coerce, or afford sadistic pleasure." Significantly, Stephens does not recur to the dictionary to dissipate the cloud of unknowing within his mind, but seeks his answers elsewhere. He proposes that a 1978 decision by the European Court of Human Rights dealing with Britain’s treatment of members of the Irish Republican Army is "a useful benchmark" for distinguishing torture from non-torture.

There, he informs us, the court found that wall-standing, hooding, subjection to noise, deprivation of sleep, food and drink, even when "applied in combination, with premeditation for hours at a stretch," and despite the fact that some detainees sustained massive injuries, did not constitute torture, although the court did find it was "inhuman and degrading treatment." In apparent approval of the court’s findings and decision, Stephens’ states that "by maintaining the u2018distinction between u2018torture’ and u2018inhuman or degrading treatment,’ the court sought to preserve the u2018special stigma [attached] to deliberate inhuman treatment causing very serious and cruel suffering.’"

Take note here of Stephens’ preferred form of definition. He bypasses the wisdom inherent in the ordinary usage of the term, which defines torture without regard to the means employed and solely with regard to the effect or the intent and the effect (anguish of body or mind, or the infliction of intense pain to punish, coerce, or afford sadistic pleasure). Instead, he appears to suggest that torture can or should be defined by reference to a catalogue of prohibited and exempt techniques. In particular, he appears to believe that certain techniques can or should be declared per se to not be "torture," regardless of prolonged premeditated use resulting in massive injury. I have a few observations about this.

First, Stephens seems to have a bizarre scale for measuring torture. At the beginning of his article he cites the needle under the fingernail as a horrifying instance of torture. This admittedly causes intense pain but would appear to fall far short of massive injury. He seems to reject the needle under the fingernail based on its "instinctive shudder" factor but is fine with techniques that possess no "instinctive shudder" factor but which can be repeatedly applied, alone or in combination with other "shudderless" techniques, to produce massive injury. Is this really rational or sane?

Second, the idea that certain techniques can be declared per se to not constitute torture bears no relationship to the reality of the human body. Third, and notably unlike the ordinary meaning of the word, such an approach fails to recognize the ingenuity that people are capable of bringing to the task of blazing new trails in cruelty.

According to Stephens, slaps to the head do not even plausibly fall within the meaning of torture. Really? How about slaps to the head of a 150 lb man, or a 130 lb. woman or a 14 year old boy or girl, or a 70 year old man, by a 220 lb man that benches 250 lbs, squats 340 lbs and can military press 180 lbs (not extraordinary numbers by any stretch), and who has sufficient boxing or marital arts training to understand that to deliver really devastating blows you don’t just swing your arm but use your legs to step in or to turn your hips so that you are putting your leg strength into the blow and delivering the momentum of your entire 220 lb body? How many such slaps within what time frame will it take before concussion or permanent brain injury occurs? What about slaps to the ears that break the eardrums? What happens if the process is repeated? Do you suppose it possible to render a person permanently deaf this way? What about slaps that dislocate the jaw followed by repeated slaps or slaps that slam the lower jaw upwards and break teeth or sever the tongue?

But according to Stephens, distinctions such as those made by the European Court of Human Rights "are not u2018legal sophistries,’ as the [New York] Times would have it. They are a juridical necessity to ensure that our definition of torture does not become so diluted as to render its prohibition unenforceable." So in Stephens’ view, not only do we need to define torture carefully in order to preserve the strength of the moral stigma inherent in the concept, but also to make sure that we can enforce its legal prohibition.

However, Stephens’ claim that the dilution of the definition of prohibited conduct renders the prohibition unenforceable is simply wrong. If torture is determined by courts who, lamentably, take their guidance from the over-refined sensibilities of the New York Times, to encompass actions which are not even plausibly within its meaning, such as slaps to the head, the result will be that interrogators who slap heads will be prosecuted for torture, not that no one will be prosecuted for torture. The application of the Racketeer Influenced and Corrupt Organizations Act (RICO) to the activities of persons who are not members of organized crime, such as people who protest abortion (a terrible dilution of the moral stigma attached to the concept of "racketeering" and devastating blow to conceptual purity of the type Stephens decries), has not lead to the repeal or unenforcement of RICO, but to its accepted, expanded applicability.

The only plausible real concern, not expressed by Stephens but coincidentally eliminated by his approach to upholding morality and law, is that, without a legally permissible catalogue of exempt techniques, interrogators and those they take orders from (our leaders) might well be prosecuted for torture whenever they inflict intense pain to punish or coerce or cause agony of body or mind. Stephens’ grand defense of the moral and legal orders thus dovetails completely with the Bush administration’s desire to define torture to exclude certain techniques so long as they are not applied to the point of organ failure (death, generally speaking), with complete exemption from prosecution. It seems to me that what Stephens is really arguing for is absolution, and moral and legal "clarification" is his means to that end.

Having made his case for preservation of the moral and legal orders, Stephens moves on to deal with The Economist’s "so be it" — its recommendation that we should abandon our use of "enhanced" interrogation practices, even though many lives may be lost from our refusal to brutalize others in order to obtain potentially life-saving information.

"For the record, count me as one who does not object to the interrogation to which KSM [Khalid Sheikh Mohammed] was reportedly subjected, including waterboarding. This is not because I take the use of waterboarding lightly . . . [but] because I take the threat posed by KSM seriously.

"That makes it difficult for me to subscribe to the "So be it" line of reasoning."

The Bush administration’s interrogation program is a general program open to all "unlawful enemy combatants," and The Economist was rejecting it on that basis. So it is noteworthy that Stephens states his approval solely in terms of the specific case of the terrorist who confessed to masterminding the 9/11 attacks and playing a role in numerous other atrocities. Taken literally, this is disingenuous, because Stephens does not respond to The Economist’s position in like kind, but instead approves of a single instance and leaves himself a loophole equal to all remaining possible applications of the program.

That would be pretty sly if that were his intention, but it is likely that Stephens selected KSM as an example of the success of the program by which it should be judged, or as symbolic of the whole. But by selecting KSM as his poster boy, Stephens covers up and evades material issues relating to programmatic brutality. First, he seeks to bypass the rightful question we might ask ourselves about whether it is right to brutalizing others for any reason, let alone in order to find out if they know something useful to us, by invoking a picture of its application to a known bad man who might have what we want. He offsets our rightful and humane doubt about the propriety of brutalizing others by directing us to focus on its application to an "evil doer," someone we think deserves it.

Second, he completely sidesteps the quotidian reality that the techniques will often, perhaps primarily, be used against people we have no or little way of knowing are in fact guilty of participating in terrorism or have "actionable intelligence," and who we will subject to suffering in order to find out if they have actionable intelligence and if or to what extent they are involved in terrorism. In fact, even in the case hand-picked by Stephens, as far as the public knows, while interrogators obtained confessions of past atrocities, we did not find out any information from KSM that has led to the prevention of new attacks.

Third, by choosing the mastermind of 9/11, he surreptitiously enlists the desire to punish as support for a program whose purpose is supposedly to obtain life-saving information. Stephens and other supporters of "enhanced" interrogation may not be too concerned what happens to KSM, and may be happy to see him interrogated simply to find out whether he has any information, because of the feeling that he deserves everything he gets and more for what he has done. In other words, support for these practices may tacitly rest in large part on the approval of harsh interrogation practices as a form of "street justice." The problem is that, legally speaking, we are supposed to determine guilt before punishing. The problem is that we — the public in whose name this is done — don’t know and can have no assurance that the prisoner is in fact guilty unless guilt is determined in a public trial that begins with the presumption of innocence and rests on a finding by a jury of the prisoner’s peers that the evidence supports a finding of guilt beyond a reasonable doubt. The problem is that our ancestors fought long and hard to save us from the "justice" of the Star Chamber, which we, in our desire to strike at someone for our wounds, usher back so we can stick it to the likes of KSM without the necessity of a trial or the niceties of an antiseptic death by injection following the judicial determination of guilt.

Any memo, law or executive order protecting the use of specified "enhanced interrogation techniques" provides a general grant of discretionary and largely unreviewable power to persons largely hidden from the light of day, easily used for other than avowed purposes, and resting almost completely on a "trust us" basis. Under the Military Commissions Act, the right to decide who is one of "us" and who is one of "them" is reserved to a handful of people who are granted the authority by the President to declare in secret proceedings which of us are "unlawful enemy combatants." It may easily be years before any court reviews their decision, if ever — a long time to endure "enhanced" interrogation. It is willful blindness to not see that, not only this is a complete evisceration of the entire Anglo-American legal tradition, but that it hands an extremely powerful weapon of fear and intimidation to the administration to be used against its perceived enemies.

All of these issues are just swept under the rug by Stephens’ evocation of KSM.

Now let’s look at his criticism of the "so be it" position:

"Taken seriously, it says that the civilized world would be better off sustaining a nuclear 9/11 than tarnishing its good name, that righteous victimhood is a finer thing than an innocent life saved through morally compromised methods, and that self-preservation is not the most fundamental requirement of democratic life."

First, each of these three assessments assumes that we will obtain information through the use of "enhanced" interrogation that enables us to prevent a nuclear 9/11, save a single innocent life, or preserve ourselves, that we wouldn’t have obtained the life-saving information in any other way, or prevented the attack in some other way (such as, for example, bringing all troops home from the Middle East and ceasing to meddle in their internal affairs). Stephens’ criticisms simply posit that the benefit will be realized. In point of fact, we cannot actually know this ahead of time. The reality is that, we are torturing people now, some or many of whom are innocent or may prove or to have no useful information, in the expectation or mere hope of obtaining life-saving information. Again, note that even with Stephens’ cherry-picked example, we do not know if any information obtained from KSM has prevented a nuclear 9/11, saved an innocent life, or preserved ourselves. (Given the Bush administration’s desperate need to trumpet its few successes, I suspect that if it had led to anything this grand, we would have heard about it — ad nauseaum.)

It would be one thing to attempt to justify this on utilitarian grounds, and argue that a few should suffer so that many more can live, and that the innocent whose lives are destroyed and bodies maimed or injured by our interrogation practices are simply acceptable "collateral damage" whose pain and suffering is outweighed by the lives saved. This would suffer from the typical utilitarian shortcoming that one cannot know the actual benefits and costs ahead of time, so that one proceeds on the basis of presumptive costs and benefits (or for the dishonest, its ready substitute, wishful thinking), and really knows whether one was wise and whether what one did was "right" only after the fact — an approach to practical morality and policy that, you may have noticed, has not served us all that well in going to war with, and occupying, Iraq. But Stephens does not go down this path and is not really a utilitarian. He is apparently willing to have us engage in inhumane and degrading interrogation practices of innumerable others over an unspecified period, presumably for the duration of the War on Terror (forever), to save even "a single innocent life." I say "apparently" because he has only told us that he approves of these practices in a specific case, although even in that case we don’t know if the information has saved a single life. If he means that to be symbolic of the whole, however, then this is not the calculus of someone attempting to rationally identify and weigh the expected costs and benefits in order to maximize overall welfare, but one who pursues a goal without regard to its morality, cost or toll.

Let’s recall the context. Stephens is arguing in support of the extrajudicial interrogation of prisoners held indefinitely without representation and without a prior trial to determine their guilt on the basis of sufficient evidence. From both a legal and moral point of view, the operational principal of such a system is that the prisoner is guilty — presumed to be involved with terrorism and in possession of actionable intelligence about it — until proven innocent by the failure of the interrogator to elicit any such information during sustained periods of torture, or, uh, infliction of inhumane and degrading treatment causing massive injury. It is completely contradictory, and morally and mentally deranged, for someone whose operational principal is that people are guilty until proven innocent, and who is willing to inflict massive injuries on, and accept untold harm to innocent others, to argue that the goal of his actions is to protect a single innocent life.

Finally, Stephens rejects a "so be it" acceptance of the consequences of not using harsh interrogation practices to obtain information because it implies that "self-preservation is not the most fundamental requirement of democratic life." Leaving aside Stephens’ intriguing suggestion that the most fundamental requirement of monarchical, socialist, communist and islamofascist life is something other than self-preservation, Stephens is right. The Economist’s statement implies that what kind of people we are is more important than that we are. If physical survival is the bedrock standard, then, by definition, all other considerations are subordinate and fall away. Preemptively attacking others in the name of "defense," torturing, raping, maiming, murdering and even nuking THEM — everything is permitted US to save US.

And not just utter criminality. If physical survival is the most fundamental requirement, then "cutting and running" are also permitted, if that will save our hides. If capitulating to the terrorists’ or insurgents’ demands by leaving Iraq, completely leaving the Middle East and ceasing to fund Israel or aiding any other countries in the Middle East will reduce their animus towards us and result in fewer attacks and more lives saved then, based on our most fundamental requirement, we should be doing that too. No? This is not what he means? Would Stephens say that, even if staying in Iraq will cost lives here, then, "so be it?" Then he must have some requirement that is more important than "self-preservation," physical survival. He must agree with The Economist that there is some standard that trumps mere survival, that who we are is more important than that we are, although each has a different idea about what kind of people we should be.

So Stephens fails to convince me either that the inhumane and degrading treatment of prisoners to extract information is acceptable or that position taken by The Economist is wrong. Beyond that, however, I question Stephens’ entire approach to the topic.

Perhaps the question whether it is right to brutalize others is not properly answerable by reference to an analysis of what’s in it for us, or even by the question, what kind of people do we want to be (civilized, humane, crusaders for democracy around the world, etc.). Perhaps seeking self-referential satisfaction cannot lead to what is right, and what is right depends on treating others as real as — and like — ourselves, an approach embodied in the Golden Rule, Kant’s "categorical imperative," the Christian commandment to love one’s enemies, and the Hindu concept of ahimsa.

We should consider it.

Jeff Snyder [send him mail] is an attorney who works in Manhattan. He is the author of Nation of Cowards — Essays on the Ethics of Gun Control, which examines the American character as revealed by the gun control debate. He occasionally blogs at The Shining Wire. Read this interview of him.

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