Topic: Government & Politics

The Ethics of American Torture
(9/25/2006)

The current debate over America's use of torture in the War on Terror has become a murky gazpacho of legalistic hair-splitting, half-baked absolutism, backwards reciprocity, consequentialism and extreme utilitarianism, with a lot of name-calling added into the mix for spice. The Angry Left and the above-it-all media declare the Bush Administration hypocrites and human rights criminals, while the Administration's supporters sneer that its critics are willing to sacrifice the lives of their countrymen and risk the survival of the nation to protect abstract and unrealistic principles. This is no way to debate a difficult ethical problem.

The first question to be answered is whether the United States is willing to reject torture as an interrogation device, forever and irrevocably. This requires placing torture in the special category reserved for ethical absolutes, and embracing the conclusion that nothing…not life and death, military defeat, national or planetary destruction…can justify the degradation of human dignity torture represents. This is the position of the 1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which follow Article 5 of the 1948 Universal Declaration of Human Rights and Article 7 of the 1966 International Covenant on Civil and Political Rights. Article 2 of the Convention provides: "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political stability or any other public emergency, may be invoked as a justification of torture."

The United States is a signatory to the Convention, but there is little question that neither the vast majority of the American public, nor its elected officials, nor intelligence personnel accept or believe what Article 2 says is logical or right. No exceptional circumstances? NO exceptional circumstances? A captured terrorist knows the location of a nuclear weapon that will level New York City, and there is a substantial chance that he will reveal it if subjected to treatment forbidden under the Geneva Convention accords or the 1984 UN Convention. Do U.S intelligence personnel let millions of New Yorkers die in order to uphold an "absolute" prohibition against torture? I suspect that 98% of Americans, if they were honest with themselves, would agree that they would approve of forbidden measures under such circumstances. I could be wrong; maybe it's closer to 100%. I have no doubt at all that American intelligence personnel would use torture under these circumstances without a second thought, and that this has not changed in decades.

Thus all the editorials and all the breast-beating by human rights activists over the U.S. "betraying its principles" by using such interrogation techniques are disingenuous at best. Virtually none of them would be willing to forswear torture in the most extreme circumstances, which is the ultimate test of any "absolute." No other nation would, either.

Of course, the United States is not supposed to be like other nations. It was uniquely founded on an ideal of innate human rights and aspirations, and there is no question that the language of the Declaration of Independence cannot be reconciled with the use of torture on human beings. The great experiment that is the United States of America, thanks to Mr. Jefferson, painted itself into an ethical corner at its inception. If it must use tactics to survive that violate the very reasons for its existence, then the nation's ideals are more illusory than real. But if it doesn't survive at all because of its refusal to do what is necessary to survive, then the experiment is a failure.

The United States has faced this dilemma many times, in a somewhat different form. Every time it has chosen to go to war, and been willing to be responsible for the deaths of civilians in foreign lands, it has served notice that individual human rights will not be spared at the cost of the country itself. We were willing, after all, to use the atom bomb…twice. When critics assail the U.S. now using the principle of absolutism, they are ignoring both history and their own value systems. In the real world, outside of essays about Emmanuel Kant, there are no absolutes. Absolutes always have exceptions.

Nonetheless, the nation's official stance against torture is an important one, because it states a genuine commitment to the ideal of human dignity in accordance with the country's core values. This is why the gratuitous abuse of the prisoners at Abu Ghraib was so unforgivable; the ideal was betrayed wantonly and for the basest reasons: disrespect, vengeance, cruelty, and ignorance. But no one should pretend that our commitment to that ideal has ever included a willingness to perish rather than violate it. The ideal of rejecting torture is important; torture is inhuman, horrible, despicable. The ideal is stated as an absolute; we aim for it, so that we are not tempted to give it up too easily. But we will give it up temporarily if necessary, and for better or worse, all of us, in our hearts, know that we will.

Typically, the Administration is trying to finesse this uncomfortable fact by playing legalistic word games, requesting a "clarification" of what constitutes torture. This is intellectually dishonest, and blatantly so. The methods it wants to define as "something other than torture"…threatened drowning, cold room interrogations with subjects doused with water, beatings and other forms of assault and battery, obviously violate provisions of the Geneva Convention such as those requiring prisoners of war to be treated with "personal dignity" and "humanely," and that they should not be subjected to "hardships and sufferings." Meanwhile, torture is defined in Article 1 of the 1984 Convention as "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." Simulated drowning, by this definition, is torture, and passing some official "clarification" that declares otherwise won't change that. Depriving prisoners of sleep and making them stand wet in 50 degree temperatures aren't going to suddenly become "humane" either, nor will such treatment suddenly cease to cause "hardship" and "suffering." So the legalistic approach is even less useful than imaginary absolutism in determining when the U.S. is justified in resorting to torture.

That's right: when, not whether.

Next up in the weak ethical argument parade is misapplied reciprocity. Critics of harsh interrogation techniques don't have the courage to argue that we should eschew torture to "do unto others" when the "others" are people whom we have seen saw off the heads of helpless hostages like Nick Berg. In matters of war and national security, the Golden Rule sounds too much like a recipe for extinction. Instead, one of the standard arguments one hears against torture is that it will put American prisoners of war in jeopardy: "Don't Unto Others Because They'll Do the Same Unto You." That's not an ethical argument, it's a pragmatic one. It doesn't argue that applying torture is wrong, only that it increases the likelihood of it being used against us. Maybe. The Japanese, North Vietnamese and North Koreans didn't seem to need such incentive to torture American prisoners during previous wars. Probably they assumed that despite our stated ideals we were torturing their captured soldiers as well; possibly, in some cases, they were correct. A true Golden Rule argument against torture would be the same regardless of what our enemies did. But Golden Rule ethics never survive warfare.

The most useful ethical system for debating the use of torture in warfare is utilitarianism. Balance the costs and results: when, if ever, do the benefits of torture, if any, overcome its tremendous ethical and moral deficits to become ethically defensible? As discussed above, our society is in nearly unanimous agreement (whether it admits it or not) that the survival of the planet, the species, a continent, the nation, a city and quite probably, on an individual basis, anyone's family justifies torture if it is certain or even reasonably likely to result in a deadly threat being averted. So the question is, are there other objectives that justify violating the spirit of the Geneva Convention, the 1984 U.N. Convention, and our own Declaration of Independence?

Interrogating suspected or confirmed terrorists to acquire information about possible plots and potential threats cannot be among the circumstances. That is the most slippery of slippery slopes: torturing to acquire information that might prevent a catastrophe. "Might" is not certain enough or valuable enough to tip the scales, not when the moral, ethical, and human objections to torture are on the other side, not when the practice of torture represents a direct contradiction to our nation's core values. Approve this, and there is no real logical impediment to torturing U.S. murder suspects to determine if they might be serial killers. There is a legal impediment, for the U.S. Constitution prohibits this because they are U.S. citizens, but the Declaration of Independence focuses on humanity, not Americans. The offense to the spirit of our founding document is the same whether the tortured are American murderers or prisoners of war. (Or non-combatant terrorists. Legalistic nit-picking over whether the Geneva Convention should apply to terrorists ignores the obvious point that by declaring that nations must be humane to prisoners of war the Convention was not suggesting that inhumane treatment was acceptable if some other kinds of captured individuals were involved.) And because it is an offense to the spirit of those declarations, torture in all its forms must always be an exceptional option, when the alternative is not speculative or theoretical and is unacceptable beyond debate.

The President's arguments that "the program" has already extracted information useful in thwarting deadly terrorist plots are therefore ethically invalid. This is "consequentialism," the illegitimate ethical theory that subsequent events can render an otherwise bad act good. I have little doubt that the next major corporate scandal could be averted if tomorrow the S.E.C. tortured all the CEOs and CFOs of the Fortune 500 companies to extract their deepest secrets, but the cost, in innocent suffering and the corruption of our values, would be too great. And once begun, what would be the motivation to stop the exploratory torture, once it was shown to be "effective"?

That is why the Administration's request for leeway to use techniques of torture in foreign lands to extract information from terrorists is wrong. Not because international rules prohibit it, not because it is unreliable, but because it takes torture out of the realm of the extraordinary and converts it into the ordinary---into national policy, into part of the American culture. The United States of America declared that torture was alien to its new culture in 1776.

Does that put the country at a disadvantage when confronting other nations and cultures willing to do routinely what we are not? Certainly. Yet that disadvantage need not be a threat to our survival, but a challenge to our strength, resolve and ingenuity. While admitting to ourselves that we could be forced to resort to torture, we must also commit ourselves to making every possible effort to ensure that such a violation of American values never becomes necessary.

It is pointless and counter-productive to quibble about whether, for example, making someone stand in an uncomfortable position for hours on end meets official definitions of "inhuman treatment," "inhuman" and "severe" punishment or "cruelty." Of course it's cruel and causes suffering; that's what torture is supposed to do. America should just admit that its "program" includes torture and discuss the issue honestly. We deplore torture, but can not declare truthfully that there may not be circumstances in which we would resort to it.

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