Eight Bad Arguments for Torture

by A. Jay Adler on March 5, 2010
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I believe in American exceptionalism.

There, I said it. Now let me make clear what I mean.

I believe the American advent, the American idea, and the American experience are exceptional: a nation of laws, and not of men and women, a constitutional democracy founded in and devoted to the liberty of its people, a culture and nationality not of ethnicity or spiritual uniformity, but of the motley assemblage of ever broadening immigrant populations and their descendants, with the constantly renewable spirit to create and recreate their lives. No other nation is quite like this, and everyone knows it.

American exceptionalism should not mean that Americans are in anyway inherently superior to other peoples. How could they be? There is no natural American people to hold inherency: the American people are a construct of many other peoples. The United States has no inherently greater rights than any other nation. And as the American experience has often fallen far short of the American idea, so, too, do Americans, like all other people, fall short of human ideals.

Case in point: the recent Justice Department report declaring John Yoo and John Bybee guilty of exercising poor judgment, but exonerating them of professional misconduct – rejecting thereby the recommendations of the department’s own ethics investigators.

Associate Deputy Attorney General David Margolis said that Yoo’s

loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, views of executive power.

According to the Washington Post, Margolis believes

…the memo authors did not intentionally violate ethics rules. Instead, he said, they were struggling to prevent another terrorist strike on U.S. soil.

Since when, one wonders, did the sincerity of one’s views excuse the extremity of one’s beliefs and actions? This can excuse anything. What a paltry excuse for reasoning. They were struggling to prevent another terrorist strike on U.S. soil? And Jaruzelski was struggling to forestall a Soviet invasion, and Pinochet and the Argentine generals were struggling to beat back the Marxist threat, and Franco was struggling to stave off the communists and the anarcho-syndicalists and the republicans, and Trotsky the counter-revolutionaries. The universal excuse for every kind of human, legal, and democratic violation is the struggle to prevent. This is not the reasoning of democrats; it is the rationalization of tyrants. As Norm Geras wrote last week

It hardly seems appropriate, either, to propose that the holding of certain ideological views, whether about executive power, civil emergency or anything else, might be a basis for exonerating a lawyer when he or she provides validation for committing a grave political crime now all but universally regarded as a crime against humanity.

Count bad argument 1 for torture

Bad argument 2

It isn’t torture! Sure their struggling, screaming, and succumbing – they’re uncooperative. If they were being tortured, they’d be dead.

Well, somewhere around 100 people did die in U.S. custody while not being tortured. I’ll repeat that: 100 people in the custody of U.S. forces or agents – not in any kind of combat, not after any kind of military or legal proceeding – have died.

If, as Oscar Wilde slyly informed us, “Hypocrisy is the homage vice pays to virtue” (and we know how most defenders of torture love to be instructed by Oscar Wilde), then Euphemism is Hypocrisy’s chief of staff. Euphemism sits on the other side of the Decider’s desk and offers, “We’ll just tell them it’s not torture. We’ll call it robust interrogation. No, better, we’ll call it – what term did the Nazis use? – we’ll call it enhanced interrogation.”

Enhanced with torture, of course. And why let the adoption of Nazi euphemism give us any kind of moral pause. We are, in these conversations, speaking of practices acknowledged – in some cases, for centuries – as forms of torture, acknowledged universally in military practice, law and convention as torture. In 1988, Ronald Reagan, the patron saint of the conservatives and neoconservatives who support torture, signed the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [emphasis added]. He stated

The United States participated actively and effectively in the negotiation of the Convention. It marks a significant step in the development during this century of international measures against torture and other inhuman treatment or punishment. Ratification of the Convention by the United States will clearly express United States opposition to torture, an abhorrent practice unfortunately still prevalent in the world today.

Well, not just in the world, but by the United States. Not in Reagan’s time, but now. Everyone can know a rationalization when they hear one: it hems, it haws, it squirms, it cavils. It tells you why it isn’t what it appears to be. The way Clark Kent wasn’t Superman. Fooled you, didn’t he?

Bad argument 3

Quotation marks. Don’t write torture. Write “torture.”

This is the employment of quotation marks that, rather than simply uses a word, calls attention to the word as a word, in one kind of usage – this one, I’m afraid – challenging the very appropriateness or “meaning” of the word, as in the United States, was, you know, “attacked” on 9/11. By “terrorists” who hate us because of our “democracy” and “freedom.”

This is the typographical argument, long on the short of it, short on the long.
Bad argument 4

The no-reciprocity argument. Islamic terrorists cut our heads off; why have any compunction over how we treat them?

First, the various conventions prohibiting torture and Other Cruel, Inhuman or Degrading Treatment or Punishment are not encoded in tit-for-tat reciprocity. A signatory isn’t committed to abiding by them only if others follow the conventions. That is a sure way, obviously, to the quick dissolution in effective force of any agreement. You don’t get to run red lights or break into a house because someone else did it, even if to you. Then Ten Commandments, which I’ll wager large numbers of torture proponents hold dear as the foundation of something or other, are not “thou shalt not” unless the other does, in which case have at it.

Second, the greater reason and purpose for humanitarian principle is not to be found in treating well an adversary you might well wish not to, but in overcoming that wish, that base if righteous desire to cut him up or fry him because he done you wrong. I only abused him because he did it to me is not a foundation on which to build our own human dignity or by which to establish the superior values that separate us from such an enemy.

We do not base torture prohibitions on reciprocity. We base them on principle. Of the kind that supposedly make us different.

Bad argument 5

The emotive argument. You feel sympathy for them?

As in the counter to the no-reciprocity argument, the counter here need not be based in any specific human compassion for, let us say, Khalid Sheikh Mohammed. We do not, fundamentally, refrain from torturing out of compassion for the potential victim of torture – though I’ll wager, again, that large numbers of the less tough amongst us, were they compelled to wield the torturer’s instrument, could not overcome their compassionate response to the pain and cries of even KSM.

We do not torture out of the expression and creation of, by the very act of our restraint, our own humanity, the values by which we claim to stand above our enemies.

Bad argument 6

The defense in political judgment. This is the defense, essentially, in other words, for Yoo and Bybee, and for the Bush administration, just in case you don’t buy the euphemisms. It was a tough situation. They made a judgment call. We don’t want to condemn people for, even criminalize, political judgments.

How long do we need to consider that in government and politics everything is a political judgment, and by this argument, any act would be defensible, no act would be wrong, and our political leaders would stand above the law and be answerable for their acts only at the ballot box? But, then, why rely on that latter? It might be their political judgment that we need for some unspecified period, because of the threat against us, suspend elections. It might be that they would decide that additional American citizens like Jose Padilla, perhaps thousands, need be arrested and held without charge or trial and rendered effectively senseless by years of sensory assault and deprivation. That would be our leaders’ political judgment; however, these would all be political judgments that the Constitution and law do not provide for them to make without being held to account and liable to penalty. “Political judgment” is not a legal escape clause, though it is an escape from fundamental logic for far too many who should be able to reason better.

Bad argument 7

The action in extremis argument. The first duty of any government is to protect the people. If torture, then, is necessary, so be it.

This argument is in fact two, one nested in the other. One is that the torture was necessary. We’ll deal with that next. The first is that “first duty” argument. Immediately, most people would agree with it. The social contract most of us theoretically presuppose as the foundation of our joint national projects begins in mutual self-defense. If not that first protection against the state of nature, what’s a nation and government for? Consider, though, that torture proponents like to challenge opponents with the ticking-clock scenario. This seems to opponents old hat already, and they have become too readily dismissive of the hypothetical unlikelihood as being germane to the argument. As I argued in Tortured Argument, it is not. The purpose of such hypotheticals, however unlikely – and many torture proponents think the ticking clock not as unlikely as do opponents – is to test the absolute nature of our principles and to modify them if necessary by introducing the complexity of the real. However, if one accepts the modification compelled by the ticking-clock hypothetical, as I do, then one may still distinguish extreme circumstances from standard policy prescription and practice.

The first-duty argument can be put to the same test. Does this argument entail as a further conclusion that we hold no value greater than our own lives? Will we, acting nationally out of that duty, do anything to defeat our enemies and survive? Some many answer immediately, yes, and there we are, but what are the further entailments of that answer? Will we, as a nation, but also as individuals, torture? Torture the innocent? Torture children? Serve as guards in concentration camps? Machine gun rows of naked people standing at the edges of ravines, more readily to fall in for disposal. Place heads back to back so as to kill two with one bullet. Cut off heads? Ourselves enslave and terrorize?

These apparently extreme hypotheticals are, in fact, less hypothetical than the ticking clock – nations and peoples have done them all. Answers are germane to reasoning along this line. Libertarian blog friend ShrinkWrapped raised the question a little while back, “What are you willing to die for?” Young men and women answer this question regularly in their military service and combat. There are values they hold dearer than their own lives. Champions of torture are among those who tend to wax most openly patriotic, singing the song of the American strain worth dying for. So what is that strain? Is it only American, or is it more fundamentally human? To die in active combat for values higher than life at any cost may seem more gloriously assertive than to risk all for what one will not do, but they are in the final analysis the same.

Those who make the first duty claim believe they have reached the end of an argument, when in truth they are only at its beginning. They have not yet really begun to reason.

Bad argument 7

The vital information argument. This is the necessity argument nested in the first-duty argument. It is, note, an extension of – more importantly, the relaxation of – the ticking clock argument.

In the ticking clock hypothetical, mass death is imminent. We know that. Without that knowledge the clock is not ticking, or, if I may say so, it is ticking all the time. That is the human condition. But that is not the ticking clock scenario. In the vital-information scenario there is only the threat of a ticking clock, not actual knowledge of one. By such imagining, every enemy is potentially, mysteriously, like a black box, in possession (or not) of information that holds lives in the balance. This is the constant condition of warfare: every captured combatant, every prisoner, is such a hypothetical fund of vital information. However, it has not before been U.S. policy to torture prisoners on the possibility that they might know something of value.

Yet this is what many torture proponents would now institute as policy. So far removed are we from the ticking-clock scenario into the all-purpose, always-applicable, potential vital-information scenario, that not only nationally-known torture proponents, but a majority of the American people, according to a Rasmussen poll, supported waterboarding as low-level a figure as Detroit in-flight bomber Umar Farouq Abdulmutallab. In fact, according to a GFK-AP poll, the American people have now sustained for the past nine months at least majority support for the use of torture on “suspected” terrorists more often than rarely.

That’s the consequence. And that’s not exceptional. Not exceptional at all.

AJA


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