Thursday, October 18, 2007

On Torture and Hypotheticals

Let me start by reproducing a comment I left in response to this post over at Mark Shea's.


Honestly, I really do appreciate you (and others) discussing the issue. It's something worth discussing. I'm not the only one having trouble with understanding this, and I suspect that I'm not alone. I certainly do apologize for intemperate remarks that I've made, and if I come to understand any other folly on my part I'll apologize for it as it dawns on me.

To my mind, I'm not starting with fear. I'm starting with the idea that coercive force is always wrong and trying to plug it into hypothetical situations (kind of like law school or the scientific method). What concerns me is that in some of these situations it seems as though I'm having to choose between evils to commit. If I have an obligation to protect someone and an obligation not to use coercive force, there are situations where both obligations cannot be fulfilled. I'm trying desperately to find a way out (or a loophole, if you prefer) where I can meet both my obligations in such a situation.

Torture is always wrong. If what the administration is sanctioning is torture then it needs to stop. However, they have an obligation to defend the American people and an obligation not to torture. It seems as though we're putting them into a no-win situation where at best they can only fulfill one obligation.

I had provided hypothetical situations, more-or-less patterned on the "ticking time-bomb" scenario, where the use of coercive force seemed to be the only way to prevent serious harm. The hope was to find either a type of coercive force that did not rise to the level of torture or a situation where what would otherwise be torture isn't in that case. I can think of situations where either one might be acceptable.

I think the police have the right to coerce a prisoner to submit to a warranted body-cavity search. I believe they have the right to forcibly manipulate a person's hand to obtain a fingerswipe on a protected computer. I don't believe they have the right to chain him to a metal bed and shock him. The problem is that I can't articulate a bright line as a distinction.

Similarly, I don't believe that two adults engaged in sadomasochism (or boxers) are actually being tortured as is prohibited, in that they've consented to the ordeal. Is it possible, for instance, that those enemy combatants who do not follow traditional rules of war have implicitly consented? I don't say that this is the case, but the argument could be made.

What gets me is the idea that this is "relativistic porn." This isn't "Who Would You Do?" or "Would You Rather..." being used as a party game. It's meant as a serious consideration of an issue facing Americans today as voters and as moral beings. Hard cases make bad law, but the proof is also in the pudding. Scientifically, a "law" is disproven if you can find a case where the theory doesn't work(having a net effect of zero is something else). In law school, professors regularly come up with absurd situations to find out whether a rule is appropriate. While sometimes this simply downgrades an argument from "always" to "tends to be," it also shows times when application of a rule as stated would result in harm.

When you buy a car, you want to know how it would perform in an emergency or in an accident. The odds of getting hit by a Mack truck are minuscule, but no one considers it odd to look over the safety ratings and consider them in deciding what kind of car to buy. Why is this different? Read the story of Operation Redwing. Four Navy SEALs decided by a vote of 2-1-1 not to kill innocent Afghans. The sole surviving SEAL seems to think he made the wrong decision. We have people out there, risking their lives, who haven't been properly educated on morality. They're facing the "incredibly unlikely" situations from which those of us stateside are insulated. If I end up serving in a war zone I definitely want to have my moral compass oriented right.

Ten years ago I suspect the idea of a shooting spree at the law school of a public university in Virginia would be "incredibly unlikely" and be deemed by some "relativistic porn." Since then, there was a mass shooting at Appalachian School of Law (a private law school in Virginia) and at Virginia Tech (a public university). Is the concern still so remote? I believe it's not. Similarly, I believe that the hypothetical situations to which the idea of "coercive force equals torture and is forbidden)" are being subjected are worth considering.


Anonymous said...

Torture is actually like porn, isn't it, in the sense that it is in the eye of the beholder. Different people draw their own lines. For strict Muslims skin above a woman's ankle is "porn". For Americans it is much more liberal. With torture as with porn maybe it has to be one of those "I know it when I see it" type of things.

I agree though that it's a disservice not to at least to attempt to draw lines. It's an important issue that demands serious discussion rather than flippant demonizations.

Perhaps one way to end the difficulty is to simply say we will abide by the rules we had in place during the 2nd World War. There was no torture then per se, at least no water-boarding. There was intelligence gathering (via prison agents, German speakers who worked for us). We had a policy during WWII and surely we could simply go back to it, since it seemed to hold us in good stead then.

Thomas J said...

I would not suggest going too deep into this rabbit hole. Not the rabbit hole of the issue itself, the rabbit hole of arguing with Mark Shea.

HokiePundit said...


You've got a good argument, but the common criticism of generals is that they're always trying to "fight the previous war." While an argument based on effectiveness can work, I'm looking for something that could be used by anyone, including a country who fought dirty in previous wars but seeks to do right.

Anonymous said...

I'm not sure that the notion of going back to WWII standards would work. While not directly related to torture, it is documented that there were plenty of occasions where Americans shot Germans who were surrendering, or who were unarmed. For many reasons (to include, I would argue, the prevalence of news reporting and the fact that WWII was a total war for our nation's survival whereas neither Afghanistan nor Iraq are, or at least aren't portrayed as, total wars), this was tolerated in 1945, but would not be tolerated today. In WWII we had our backs against the wall and people were willing to let these things go. In the Civil War, Lincoln suspended habeas corpus and the Union was cool with that. None of that would fly in a war that, right or wrong, is seen as a "war of choice".

As for the moral education of our military service members, I'm not it's correct to say that the surviving SEAL, or any other military member, hasn't been properly educated on morality. If they'd killed those goat herders, that SEAL might be telling Matt Lauer that a day doesn't go by when he doesn't think about and regret what he did. I happen to think he did the right thing, but I think the Redwing situation illustrates the fact that those waging war are often faced with no win situations from which there will always be some kind of remorse.