This Whole Debate Is Torture

by A. Jay Adler on May 11, 2011
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Given that the dark matter is once again exercising its invisible pull on the national consciousness – come, let me show you something my little darlings, its right here, just around the corner, you’ll like it, a little further now – and attempting to use Osama bin Laden’s long goodbye as renewed justification for torture, I thought it might be a good time to rerun a few favorites we at the sad red earth earlier posted on the subject. We being I and my tortured muse.

Among the several characteristics to note in the very flawed way we pursue this debate is how nearly everyone, including ardent opponents of torture, run from the morality of the act. Even those with a deep conviction of the immorality of interrogation enhanced with – enhanced with what? ah, yes, torture, enhanced with torture – even they vigorously argue, instead, the question of torture’s efficacy: it doesn’t work, they are all at pains to persuade us. Somehow, after two millennia and more of the supposedly irreplaceable and refining ethical influence of monotheistic theology, very few people really believe that a moral argument has any – how shall I put it? – any balls to it. Talk to me like a man, like a conqueror of lands and peoples. Talk to me of what works.

Here, then, today, from the vaults of the past, originally posted on May 8, 2009, just over two years ago,

Tortured Argument

The next several years of the torture debate will be variously instructive, not least in what we already see in the low form and manner of important public political argument among figures who should have been schooled to a higher level. The debate will last at least a few years, and it will distress in too many ways. To begin, there is, well, yes, the torture, distressing to the tortured to be sure, but distressing, too, to the fabric of the society that permits or institutionalizes it. We see that already.

The integrity of that social fabric – the health of the society, the democracy that necessarily engages in debate – is ensured in no small part by the quality of its argumentation. We can see that, too, in the arguments that formed our nation, including where, ahem, a few stitches were missed. There have always been shoddy arguments, sure. Always will be. And you appreciate your good view, in part, by a little perspective on the cheap seats.

So let’s examine some. Let’s start with the misdirection of focus by torture proponents on the recent most high-profile subjects of torture, Khalid Sheikh Mohammed and Ramzi Binalshibh.

You feel sympathy for them? proponents impugn.

Notice the hat? See the rabbit?

The eternal tortures of the damned for both of them, I say.

But let’s recall where the damned get tortured.

And who does the torturing.

It isn’t about them. Not to mention the reported one-hundred-plus dead in detention who weren’t KSM and RB.

It’s about us. As death penalty opponents often try to focus us sympathetically (the emotional appeal) on the innocence or injustice in the case of a particular prisoner, rather than the greater argument against capital punishment – that it dehumanizes the culture that creates a system for it, the more so the less it questions its righteousness in doing so – so, in reverse, torture proponents mislead us to the heinous subject of torture rather than the practice of it and what it means for the culture that endorses in it.

Let’s keep our eye on the argument. Rabbits come and go.

Then, too, notice how constantly is the red herring dragged across the ground of whether the torture is effective. This is done, in fact, on both sides of the debate – for obvious reasons by torture proponents, but why by opponents? In this one instance, they are the more disingenuous. The whole appeal of their argument is intended to be ethical, and then they resort to efficacy as a kind of sleight of argument piling on. (“I’ll just throw this in for extra measure, however irrelevant, and if it persuades anyone of the thusly invalid conclusion that torture is wrong, well, all’s fair in L, W, and political debate.”) What is more, opponents’ smug assertions that torture doesn’t work are hardly definitively supportable. (One form of cheap, or cheating, argument is to pretend there is nothing about which to argue.) Evidence is presented on both sides, almost always by self-interested or biased parties, and in neither case is it the pièce de résistance (“and it doesn’t even work!”) the promulgator of the half canard with plum sauce pretends.

You want to investigate torture as an enterprise in effective human engineering, fine. But that’s not what our current debate is about, now is it? Our continuing descent from the trees, marked over the past couple of hundred years by increasingly developed rules of war, codified in international law, did not lead us to define and ban torture because it doesn’t work. We decided it was inhumane, and, so, morally wrong. When then President Ronald Reagan – the patron saint of many now disturbing his rest – signed the UN Convention Against Torture, he didn’t do it because torture doesn’t work. 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.

Reagan signed the Convention because torture is wrong – even if it does work. And to grasp at the crutch of its declared inefficacy is to falter in courage – the courage to believe in, and hold to, the force of moral reasoning even in the face of the brute: not just the torturer, but the effective torturer.

Another point of distress, then, are the many leading lights – journalists and government officials, think-tank intellects and media silverbacks – who do, in their argument, acknowledge this distinction by caring very little to pretend they are not advocating torture. But it is not some “third-world” tin-pot tyranny wrestling with the seaweed here, it isn’t some doctrine-drunk, authoritarian oligarchy, it is the United States of America (apply your own heart-felt encomium), and we see that people who have been raised in it – nurtured on the traditions of the first great modern republic and educated in its democratic universities – would now very readily turn back scores of years of social evolution and advancement in international affairs in order to rule, and righteously so, by the screw. As if the darkness of the Middle Ages and Inquisitions had never lifted. As if several centuries of perpetual European conflict had not managed to lead us – as some manner of solace – out of it.

Just so we know.

Just so we all may ponder how easily a kind of false consciousness can slip over us, the thug arrived at the family table – pretending that certain matters had not already once and finally been settled – and demanding his plate with fine words and songs of the nation-volk. Where we may proceed to feed him, until history delivers its slap in the face (its repertoire so varied) and we spend decades trying to understand how we brought ourselves to do it – trying, even, to acknowledge that we did.

Not just there. It can happen anywhere. It can happen here.

We see their stolid forms, their overcoats, the bent brims of their hats, the narrow bureaucratic lapels and the ruler-thin ties. We hear the drone of their banality. The Woos, the Bybees, the Bradburys and Addingtons. Educated men whose great distinction, once in life, was to become ready levers for the engineers of power that were Cheney, Rumsfeld, and the knavish naïf who led them.

And they will have done it, they’ll say, for us. They will even believe it.

It is obvious, though, that many torture proponents do know, yes, what they do, and paying their homage to virtue deny that all kinds of torture, not just waterboarding – don’t be fooled by that one – but a range of acts that inflict pain and suffering, are actually torture. How do they do it? With Orwellian “newspeak” and Inquisitorial casuistry. They warp reality by rending its linguistic fabric. “Enhanced” or “robust” interrogation techniques were just the start, as robust persuasion is only the first kick in the ass. And it is no accident that “enhanced interrogation” was a Nazi term of art, because the slayers of honest thought, however well they think of themselves, all are drawn to loiter in the same verbal death house.

Members of the Convention Against Torture (in green)

So we see in the recently released Justice Department Office of Legal Counsel memos how bureaucratic exactitude merges with a kind of theological casuistry to produce a bland moral derangement. In the August 1, 2002 memo from Assistant Attorney General Bybee to Acting General Counsel of the CIA John Rizzo, for instance, the mutual ass-covering purpose of the memo is all in the “reported” speech that constitutes most of it. Bybee reports back to Rizzo what Rizzo has purportedly already described elsewhere about the interrogation techniques being used. Every legal clearance Bybee offers, then, is dependent in its authority on the accuracy of Rizzo’s prior account, and each can hold the other accountable for any discrepancy producing legal jeopardy. And the discrepancies would be from the feigned precision in the application of the techniques. Page four tells us that during the waterboarding, “air flow is slightly restricted from 20 to 40 seconds” as if 15 or 50 seconds have through some formal methodology been established as beyond some regulatory pale, and with “slightly” surprisingly undefined. The water is “applied from a height of twelve to twenty-four inches” because the Office of Legal Counsel, or course, has had access to studies demonstrating that eight or thirty inches will miss some either humane or efficacious mark. Elsewhere, stress positions, where the subject leans back at a, no doubt, medically-determined “45 degree angle” produce “muscle fatigue” of a sort that “despite its discomfort” cannot “be said to be too difficult to endure” and so does not constitute “severe physical pain or suffering,” as mere drops of water dripping onto a forehead are merely uncomfortable in a technique Bybee presumably sought to have renamed the Chinese Water Annoyance.

Subsequently, and for near theological lunacy, nothing surpasses Fox News and its distinction and insistence that KSM was not waterboarded 183 times, but subjected to 183 “pours” of water, the “pour” now, sadly, a new technical term for journalists who cover the torture beat. We might almost be resorting to Aristotelian “substance” and “accidents” to distinguish what is from what is apparent in the Eucharistic transubstantiation. Or better, from Andrew Sullivan, the Inquisition’s non ad iterandum tormenta sed ad continuandum: to “continue” a torture (okay) was not to “repeat” it (not okay). Fox News: yesterday’s arugments for torture today.

Sullivan has addressed the essential point here:

The entire spirit of the UN Convention and the Geneva Conventions is not to see whether governments can find clever, legal loopholes in the ban on torture, abuse, inhuman treatment and outrages on human dignity – but to see that no government ever comes near the kind of prisoner abuse and torture that we have seen throughout history. I cannot begin to believe that those who drafted both conventions believed that waterboarding, for example, was okay if it is done in certain ways and not others. And to even countenance such a sophistry is to have capitulated to the logic that the executive – empowered with massive force and enormous secrecy – should always get the benefit of the doubt when applying the rule of law.  The lawyers we are talking about, after all, are lawyers for the president, whose oath of office demands that he faithfully execute the laws.

Beyond the mockery derivable from absurd efforts at self-justification, however, it is important to affirm that this debate – worldwide – has already long since been had, even before Reagan and the UN Convention, back to the Geneva Convention of 1929, revised as the Third Geneva Convention, which the United States signed in 1949 and ratified in 1955. When the U.S. signed the convention, it expressed only one formal reservation, regarding the death penalty, and it specifically rejected the reservations made by others at the time of signing, never mind fifty-plus year later when it might have suited any party’s new purpose. The debate was closed, and by the U.S. too. If certain elements of the U.S. polity now wish to reopen it, against the sweeping tide of civilized history in this matter, they are free to try to do so, but let them be honest and clear in their purpose and their language. Let them tell all, without subterfuge in language or manipulation of law, where the world has gone wrong in this regard and how they will lead us right.

Honesty in debate is incumbent on all sides, however. When torture proponents raise the “ticking bomb” hypothetical, not matter how unlikely opponents believe – or want to believe – that hypothetical situation is, proponents are offering a coherent counter-argument to a morally absolute claim (torture is always wrong, under all circumstances) made without qualification. This is a fundamental and frequently explored quandary of moral reasoning – whether to switch the runaway train onto a track to kill only one person rather than the five now in the train’s path (and now with the twist that the lone person set the train on that path) – and simply to derisively dismiss it due to its hypothetical unlikeliness is to fail to engage the moral problem and not to respond to the argument.

In fact, there are answers. Josh Marshall offers one here:

As I’ve argued before, I think the answer to the ticking time bomb rationale for torture is this: that in the extremely unlikely circumstance that government officials ever found themselves in that position of having a ticking time bomb ticking away, they might have to make the decision to break the law. Not fudge it or keep their actions hidden, but take the decision on their own responsibility that it was the best thing to do in the situation — despite it being wrong as a general matter — and then bring their decision to attention of the people and law enforcement authorities and throw themselves on the mercy of the public. Thomas Jefferson explored a similar question and argument for the position a president could find himself in when faced with extra-constitutional or even unconstitutional actions.

Note how Marshall’s argument opens up the necessary distinction between the legal and the moral, essential to a full discussion of the dimensions of this issue. A lie is always an admission of the known violation of a social code, regardless of whether one agrees with the code. If one does not, the disagreement should be acknowledged, not hidden by “enhanced term creation.”

In the end, we all come before the law; we can all be Kafka’s man from the country, who lifelong seeks admittance before the door, and its keeper, that none else ever approaches:

“Everyone strives to reach the Law,” says the man, “so how does it happen that for all these many years no one but myself has ever begged for admittance?” The doorkeeper recognizes that the man has reached his end, and to let his failing senses catch the words roars in his ear: “No one else could ever be admitted here, since this gate was made only for you. I am now going to shut it.”

AJA

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1 comment

{ 1 comment… read it below or add one }

D.M. Solis May 17, 2011 at 4:38 pm

Dear Jay,

Thank you, as always, for thinking and making us think. Most inspiring. If I were teaching social justice today, I know I would have my students reading your blog, especially pieces like this, where you offer concepts and scenarios, positing outcomes. I would have students respond in discussions and in written assignments–and would encourage a systemic approach on their own level in their own lives (organized around bullying, say), with actionables, and a presentation on outcomes.

Gratefully,
Diane

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