Wednesday, October 04, 2006


Christopher Blosser has gathered together an interesting and informative compendium of sources On Torture, "Aggressive Interrogation" and The Military Commissions Act of 2006 at the Ratzinger Fan Club blog, Against the Grain. There is a lot of important information and discussion cited in the text of the post itself, and there is already a lively discussion going on in the combox.

My own meagre first attempt to say something on this issue can be found here (kindly cited by Christopher in his post). In that post I argued that the standard arguments in favor of torture these days are all of them utilitarian in nature and, as such, are not arguments that a Catholic could appeal to in justifying torture. (This does not stop some of them from appealing to them anyway, but that is a separate issue.) In this post I am interested in addressing two separate, but related, issues: first, what I will call the Demarcation Problem, that is, what are the boundary conditions that separate acts of torture from acts that are merely "aggressive"? Second, a problem raised in Christopher's post: what to make of the use of torture by agents of the Church during certain periods of history? Does this in any way imply that the Church accepts the moral licitness of torture in defense of the common good?

The Demarcation Problem

The boundary conditions for torture are not as straightforward as they might seem, because torture can be either physical or psychological, and society accepts certain forms of both physical and psychological discomfort as morally licit. This might seem to beg the question, since putting it this way makes it sound almost as though torture is per se morally illicit, and and whether that is true or not is precisely the point at issue. So in order to be more careful in this minefield, let us say that every society recognizes some form of either physical or psychological discomfort that is morally licit and that does not qualify as an instance of torture. This is still problematic, since another point at issue is the definition of torture; you begin to see how complex this issue is.

One place to begin, if one is a Catholic, is with the infallible teaching of the Church, which holds that violence in itself is an artifact of sin and not something that can be intentionally sought as an end by the Christian (see, for example, CCC 1869, 2302-6, 2534). All recourse to violence in the Christian tradition must be as a last recourse in the defense of one's own life or the common good, and even then it is recognized that the use of violence, as such, is a sad fact of our fallen state and not something that is in itself justifiably good. Just war theory states that even in defense of the common good against an unjust aggressor the uses of violence are to be strictly curtailed by higher motivations, including justice, mercy, and compassion. We shoot back at our enemy not because we hate him, or want him to die, but because it is the only way to prevent him from shooting at us. Indeed, if there should exist some other way to prevent him from shooting at us, we are required to have recourse to that method prior to resorting to violence. In punishing criminals, we do not inflict pain on them for the sake of causing them to suffer, as "payback", as it were, for what they may have done, but in order to rehabilitate them, in precisely the same way that an unpleasant medicine might cause discomfort to a patient who needs that medicine in order to survive. Even when we defend our own persons against an unjust attack, we may use deadly force if our life is threatened, but we may not intend to kill with that force, or even harm; our only licit intention is self-preservation.

As a starting point this is not very helpful, because unpacking intentions usually only leads to greater difficulties, especially when folks find the so-called Principle of Double Effect so tempting to evoke in situations like this. "But your honor, my intention was to extract information; those cigarette burns are only regrettable though foreseeable secondary effects of my primary intention!" Furthermore, in real life we all use "force" of one sort or another every day. To rule out all forms of coercion and compulsion seems too strict. We, as a nation, threaten everyone on the planet, at least indirectly, simply by maintaining an army and stockpiling nuclear weapons. As individuals, we punish our children and constrain our fellows with laws and prisons.

So, while it may be salutary for a Christian to keep the prohibition from violence in mind while thinking about torture, as a philosophical starting point it is not going to be of much help. Nor may we begin to search for necessary and sufficient conditions by presupposing that what we are looking for are levels of violence that are "too great" or "morally unacceptable" since that again begs the question. George Bush made this same point in his notoriously colloquial way the other day, drawing derision from the likes of Jon Stewart and Mark Shea, but it is worth noting that the expression used in the Geneva Conventions--"outrages on human dignity"--is not a univocal expression. The Geneva Conventions do not bother to stipulate what an "outrage" is nor what "human dignity" is. As Christians, we believe we have some inkling as to what we mean by the latter, but we have no grounds for assuming that what we mean by "human dignity" is what everyone else means by it, or even that it is what the authors of the Geneva Convention meant by it. Mark Shea does a disservice to those who point this out in good faith by portraying them as making an obvious and outrageously stupid error. The implication is that George Bush is either a cynical sophist or an ignorant moron (or perhaps both); although he may be, his asking what an "outrage against human dignity" means is not evidence for the claim--it is a perfectly reasonable question to ask when one is trying to decide whether what one is doing is morally justifiable or not and folks are sticking Geneva Conventions under your nose in answer to your question. In short, pointing to the Geneva Conventions is not merely vague, it also begs the question, since the very point at issue is whether these actions are morally licit.

So how do we approach the Demarcation Problem (not to be confused with the Demarkshean Problem)? We want to know what torture is, and we find that it will not do to say that it is "too much" pain and suffering or that it is an "inapproriate" amount or form of pain and suffering, since these definitions beg the question. It is tempting to say that among the necessary conditions for torture is "very great pain or suffering, either physical or psychological". That does not fully dodge the normativity problem, but it is perhaps a little better than saying "too much" or "inappropriate". The difficulty, however, is that whatever any one person, or culture, might judge to be "very great" may not be so judged by another. Personally, I would not be the least bit affected if someone were to defecate on a Bible in front of me, but we are told that for non-believers even to touch a copy of the Qur'an in front of Islamic prisoners constitutes abuse; I do not like it, but I am not particularly harmed, when people make fun of Our Lord or put crucifixes into jars of urine or make portraits of Our Lady out of elephant dung, but simply draw a picture of the Prophet and there is rioting in the streets. To hear my son tell it, falling off of a skateboard might constitute torture in some circles. So to say that torture is "very great pain or suffering" is still rather vague and bound up with subjectivity, perhaps hopelessly so.

One way to escape this problem might be to say that pain or suffering is "very great" at the very least when it causes physical damage to the body of the person experiencing it. This would preclude, for example, the use of sterilized needles under the fingernails, or the rack. Sadly, "very great" pain can be inflicted without causing physical damage (electrodes on testicles, for example), and psychological pain can certainly be "very great" without causing any physical damage. So even an appeal to something empirically verifiable will not do the job fully.

This situation is an instance of what philosophers sometimes call a Sorites Paradox. "Sorites" is the Greek word for a "heap", and the paradox involves the question of how we manage certain kinds of boundary conditions. For example, a single grain of sand is not a heap of sand; if you add one more grain of sand to something that is not a heap, it seems fair to say that you still do not have a heap; but clearly, if you repeat this a sufficient number of times, you will eventually have a heap. Or: a man with a full head of hair is not bald; if you pluck one hair from the head of a man who is not bald, he does not become bald; but clearly, if you repeat this a sufficient number of times, you will eventually have a bald head. In the present case: some forms of coercion seem not to be instances of torture; wratcheting up just a bit on something that is not torture seems not to make that thing an instance of torture, but clearly if you wratchet things up enough you wind up with something that is clearly torture. Where is that line located and how do we know where it is located?

The difficulty in the Demarcation Problem lies not so much in thinking of things that we ourselves would prefer not to undergo. That would be relatively easy to do, and we could then compile a list of those things and say "This is what torture is--stuff like this." This is a notoriously bad way to define things, however. For one thing, once you have your list, you have your definition, and all one needs to do in order to torture someone licitly is think of something that's not on the list but that is very painful and effective. More importantly, lists of items cannot constitute definitions because they do not get at the essence of anything, they do not identify those necessary and sufficient conditions that must be present in order for something to count as an instance of torture.

Torture is usually employed to extract information. It is fair to say that prisoners never want to give their interrogators information, so any form of questioning is, in some sense, hostile and aggressive, since it is asking people to do things that they do not want to do. In the age-old "good cop/bad cop" scenario, one interrogator is mean and the other relatively friendly; but tricking a person into telling things to the friendly guy is still a form of coercion. Yet nobody would describe this kind of thing as tantamount to torture--it's only when the rubber hoses and toilet plungers come out that we begin to think that things are getting out of hand. It may very well be that Alan Dershowitz is right--we will have to decide, as a culture, precisely which acts of interrogation we are going to count as torture and which we aren't, and then heavily regulate the use of the former. This is, of course, entirely arbitrary, and just as culturally bound as anything else, but it is no more arbitrary than any other method, and it at least has the salutary effect of bringing this sort of thing under a limited amount of scrutiny. But the difficulty we still remain: how do we decide, as a culture, which acts we will accept as morally licit and which we will not? Is waterboarding morally licit? Is sleep deprivation morally licit? How do we decide? It is a complex and difficult question for a secular society. I think, however, that it is crystal clear to the Christian, and I cannot do better than to quote the words of Fr. Richard Neuhaus, but let me refer you here to the set of quotations that Christopher Blosser has put together--this is from his blog post:
Fr. Neuhaus has spoken on this topic several times. In Drawing the Line Against Torture, by Fr. Richard J. Neuhaus (First Things 146. October 2004):
Torture as defined in international agreements to which the U.S. is party—outrages against human dignity, humiliation, degradation, mutilation, the threat of death—is never morally permissible. Admittedly, a measure of coercion, both physical and mental, is inevitably involved in most interrogation. The very fact of being in custody and under threat of punishment is a form of coercion. The task is to draw as bright a line as possible between such coercion and torture, and to forbid the latter absolutely. The uncompromisable principle is that it is always wrong to do evil in order that good may result. This principle is taught in numerous foundational texts of our civilization and is magisterially elaborated in the 1993 encyclical of John Paul II, Veritatis Splendor. We cannot ask God’s blessing upon a course of action that entails the deliberate doing of evil. When something like Abu Ghraib happens, the appropriate response of patriotic Americans is one of deep sorrow, clear condemnation, and a firm resolution that it not happen again.
In The Truth About Torture: A Christian Ethics Symposium, Neuhaus engaged in a discussion of Charles Krauthaummer's "The Truth about Torture" (Weekly Standard Dec. 5, 2005) with Darrell Cole, Robert Vischer, and many others.

Finally, in Speaking about the Unspeakable (First Things 151 March 2005), Neuhaus, "struck by the paucity of serious discussions by Christian moral theologians and ethicists" about torture, calls for Jewish and Christian theologians to remedy the issue:
The instance of hijacked planes is relatively rare; the instance of torture is common, and, it would seem, becoming more common. Christian ethicists have in recent years moved away from “quandary ethics” to “virtue ethics,” and that is in many ways a good thing. But quandaries persist. Casuistry has a bad reputation, but the careful study of cases and the moral rules that apply to them is inevitably part of serious moral reflection. I, too, earnestly wish that we could not talk about torture. But the reality and the discussion of the reality will not go away. One cannot help but think that the discussion would benefit from the contributions of Christian and Jewish thinkers informed by the wisdom of biblical sources and their own traditions.
Torture and the Church

My second issue is, at least in my own opinion, much less complicated than the first. Christopher quotes the Catechism, section 2298, as rather definitive proof that the Church does not herself condone the use of torture and never has. But I think that it is worth adding that even the rabidly anti-Catholic historian, Henry Charles Lea, in his mammoth, three-volume slander against the Church called A History of the Inquisition of the Middle Ages (New York, 1955), points out that throughout history the Church has always handed prisoners over to secular authorities to be tortured. This is precisely the sort of thing that will make some folks smile knowingly and say "Oh, sure, the Church is against torture like Ted Kennedy is against abortion."

As the Catechism makes clear, however, it is a mistake to make a moral judgment about the Church as a whole and her teachings on the basis of certain mistaken prudential judgments made by members of the Church at certain times in history. The teaching has always been clear; men's minds are often less so, and what seems prudent in one situation may not seem very prudent in retrospect. Whatever we may make of the decisions made by certain individuals to hand prisoners over to secular authorities for torture, it remains a fact that the Church herself has always forbidden it of her own representatives.


Tony said...

society accepts certain forms of both physical and psychological discomfort as morally licit

Did you mean morally illicit?

Scott Carson said...

No, I think it is quite obvious that society accepts certain forms of both physical and psychological discomfort as morally illicit; the question, I think--at least when considering the boundary conditions for torture as such--is what to do with those cases where society does not condemn a certain form of physical or psychological discomfort as morally illicit, but rather accepts it as morally licit. Does it follow from this acceptance of this particular form of discomfort that this same society is endorsing a form of torture as morally licit? To say yes to this latter question is where I think there would be a danger of begging the question, since one of the things that we want to know is whether torture is per se morally illicit and, if so, where we draw the line between torture and non-torture.

So my point is merely that we cannot hope to draw the boundary simply by looking at what societies generally are willing to accept as morally licit.

Sorry if that wasn't clear from the post itself.