The potential prosecution of Bush-era officials for waterboarding and other alleged uses of torture during interrogations of terrorists is an outrageous plan of action for the Obama administration. First of all, it will prove to be extremely divisive. For a President who ran a supposedly bi-partisan campaign by promising to reach across the aisle, such a public investigation of and prosecution regarding these interrogations would certainly polarize the nation. This reeks, not of bi-partisanship, but the anti-Bushism that defined Obama’s campaign and the extreme liberal-left.
Secondly, it is disastrous policy to prosecute officials that were not only acting as instructed, but were doing a phenomenal and successful job of protecting America. Whether you consider waterboarding to be torture or harsh interrogation techniques is irrelevant. Frankly, I care little if it is termed torture. The fact of the matter is that if torture or interrogation yields truthful, useful, and otherwise unattainable intelligence that leads to the saving of innocent lives then it is one-hundred percent morally and politically acceptable. It is a simple utilitarian argument that justifies this. If injuring or scaring one man can save one or more men then the total harm done in society is minimized. Not torturing is morally equivalent to murdering those who could have been saved had the terrorist been tortured.
Far too often critics try to draw a moral distinction between active and passive actions. The argument implicitly distinguishes between harm caused by an active action, such as torture, and harm caused by a passive action, such as failure to stop a terrorist attack. Under this simplistic morality, actively caused harm is always worse than passively caused harm. For some reason, proponents of this belief seemingly feel a discomfort at being directly involved in harm. However, they feel a little better by being able to stick their head in the sand and, at least mentally, avoid harm that is distant. This may explain why they believe it is less moral to commit harm with an active action.
However, this is a deeply flawed philosophy. The fact that harm is more or less remote is irrelevant. Instead we must to look to the magnitude of harm- or more appropriately the expected value of harm. For instance, if there is even a 10% chance that 1000 people will be injured there is a greater harm in not torturing one man. Committing harm has to be judged in light of the harm it prevents. Harming another is completely justified if it reduces the overall global harm. Just because some types of injury may be caused by passive actions does not negate the fact that we have a moral responsibility to stop them.
The only caveat is that torture has to lead to true intelligence. Torturing for cruel or sadistic purposes is never acceptable. Torture has to be done in a way to extract useful information. Interrogators need to be trained to avoid creating situations where the captive says what the interrogator wants to hear in order to stop the torture. Likewise, less severe methods should be used first, in order to minimize the harm. Escalation should occur as necessary and appropriate. Ultimately, however, it must be recognized that the aim of such tactics is to minimize the amount of global harm. If enemies of our free society decide to create a situation in which there will inevitably be harm, we must do everything we can to minimize that harm. Sometimes this means not being passive, but actively inflicting a small amount of harm to avoid a greater amount.
If Obama decides to pander to an ill-informed and morally twisted ideology and punish those that have so far protected us, we will only be put at greater risk. If our enemies believe that they can harm us without harm coming to them there will be little to protect us. If we hamstring ourselves in the name of a false-morality we will only step down the path to America’s decline and ruination.
What is the utilitarian justification for 183 times?
ReplyDeleteJust some thoughts...
ReplyDeleteObama has been pretty clear that no agent that used coercive means will be prosecuted. The only potential targets are the lawyers (Bybee, Gonzales, etc) who argued for the legality of the methods used and were ultimately responsible for developing the policy. Under criminal law norms, these individuals could only be found guilty of a crime if they developed their arguments in bad faith--i.e. they knew what they were writing was wrong and in fact believed such methods to be illegal, but approved them none the less. This intent would be very difficult to prove. Criminal liability is thus very unlikely, even if pursued. The more likely result is the impeachment and removal of Jay Bybee along a party line vote (Bybee is now a Federal Judge on the 9th). Circuit).
I disagree with your argument that seems to suggest that torture should be "legal" in extreme circumstances. I think this erodes our moral authority. That being said, I do agree with you that torture is necessary at times. Criminal Law provides a nice safety hatch through jury nullification. In extreme circumstances, if torture is used, and subsequently prosecuted, the jury can always find that the act, although illegal, was justified by necessity and refuse to impose punishment on the government agents/authorizing officials. I think this approach is a good (although admittedly very lawyerly) way to deal with the problem.
-Rob
Regarding 183 times: From my understanding, the repeated waterboarding of Khalid Sheikh Mohammed lead to a lot of actionable intelligence. This includes admission of his role and plans regarding 9/11, information that foiled a plot to attack Los Angeles, and information that lead to the discovery of facilities and individuals who were plotting to destroy the Brooklyn Bridge. I am reasonably sure that there is other intelligence that has not been made publically available yet as well. I think this makes the utilitarian argument fairly clear. Thousands of people would have lost their lives if either LA or the Brooklyn Bridge were attacked. If you compare this to waterboarding, even 183 times, I think the case is pretty straightforward. I also think it is necessary to point out that waterboarding, while I’m sure is not too enjoyable, does minimal if any bodily harm to the detainee. It is much more of a psychological stressor. I’m sure it is unpleasant and terrifying, but it isn’t on the level of caning, tearing of the flesh, or bodily mutilation. To terrify and humiliate an admitted terrorist to save many lives is, in my mind, completely moral from a utilitarian perspective. Do you disagree?
ReplyDeleteRob - First of all, I am wary about putting too much faith in what Obama says. He is already developing a track record of diverging in action from what he says. Take his commitment to bi-partisanship as a prime example. That being said, I’ll accept your legal arguments as I am sure I can’t do much to dispute them. However, it doesn’t so much concern me whether these Bush-era officials end up in jail or not, but whether the prosecutorial process happens at all. I think the moral message that is stated by charging these men is dangerous for our country. I think a show trial, as Bill O’Reilly likes to call it, will set a dangerous tone in this country. Not only will it be divisive, but I think it codifies and enforces a false and corrupt morality.
ReplyDeleteWhile your criminal law safety-hatch is all well and good, I think it is too little too late. I disagree with the fact that torture necessarily degrades our moral authority. As I argue in the post, I think torture is sometimes the most moral path to follow. I strongly believe that we as individuals and a country should not shy away from being moral just because on the surface it does not look good and makes us feel uncomfortable. Morality is not always easy and certainly not simple. Far too often, the Left and others, take a very simplistic look at the world. A simple morality- such as killing is bad, living is good, therefore we must never kill – can lead to disastrous, immoral policies. I think America has to get past this simplistic way of thinking and talk openly and freely about these issues. We need to feel comfortable with taking actions that in isolation may be immoral but in the appropriate context are moral. Legalizing appropriate and just torture does not limit are moral authority, but raises our moral understanding to a more advanced, higher level. Just to be abundantly clear, I am only talking about just torture. Unjust torture, such as for sadistic, personal, or punitive measures, should never be legal. It is only just torture, which leads to greater good, which is appropriate. I think this is a moral distinction that many people fail to make. Conservatives do a poor job distinguishing between the two, while liberals just ignore the distinction altogether.
Yes, I still disagree. I find it incredibly hard to believe that the marginal utility of waterboarding someone the 183rd time outweighs the moral cost. If indeed we're still gleaning actionable information after 182 rounds of torture, then the sheer inefficiency of our chosen torture method is the glaring immorality in the situation.
ReplyDeleteOn an unrelated note, I find it funny that "conservatives" are afraid of a show trial in light of the Clinton impeachment.
From my understanding of interrogation techniques- whatever level of intensity- the fact of the matter is that it is a process, not a one-shot deal. Techniques are used to draw out the answers. Often times interrogations have to go slowly. I don’t believe it is about waterboarding the target once and hoping that all the information just spills out. It is a process. Would you be more supportive of only one instance of a more extreme method? Would you say that an hour on the rack would be preferable to 183 waterboardings? How about only one session of intense electrocution? Would that be better? Or how about the reverse- what about 1000 sessions of humiliation? I think when you get to these levels of specificity you are dealing with very precise details and calculations. Could there have been a less harmful way? It is possible. There are infinite outcomes that are possible. What my essential point is that the methodology shouldn’t be demeaned or ruled out. I don’t think everyone we pull off the street should be waterboarded. I do think that the people running these interrogations are trained and have analyzed the effectiveness and safety of these techniques. I don’t think, in these situations that we are in any way morally comparable to our enemies overseas- who behead and maim our men. I think we do everything to ensure that the interrogation technique is being employed with the sole intent of getting information and not any vindictive goal of injuring these men. I believe that the 183 times was thought to be the best and least harmful process to getting that information. Whether it truly was or not is a different question. But if a thorough analysis and appropriate oversight of the interrogation was done, then I see no use in criticizing it.
ReplyDeleteThe utilitarian argument in favor of torture is wrong: it's riddled with logical fallacies. It assumes that torture produces useful, actionable intelligence - there's no proof that it does and lots of evidence that it does not. It assumes that such actionable intelligence is not attainable in any other way - there's no evidence that this is true. It assumes that there are no other ways to protect the lives of people who've died in terrorist attacks - there's no evidence that this is true. That's three false choice fallacies that are required to make the argument stand.
ReplyDeleteI wholeheartedly agree that the utitilitarian argument (at least partially) rests upon the the three assumptions you point out, but I don't think this actually makes the philosophy fail. In fact, those are precisely part of the argument and I believe I indicated this above. Those are three factors that must be considered when deciding whether to use torture. If, as you suggest, these items indicate that torture will not help the ultimate end goal then I 100% concur that one should not torture; however, the opposite would indicate torture should be used. What you are arguing is about the use of a tool, not about the underlying moral code or decision making process.
ReplyDeleteThe point I am making is not necessarily stating if and when we should use torture, but that torture by itself is not moral or immoral. Instead, it is amoral; simply a tool to be used within a moral framework. [Similar to guns which aren't bad or good, it depends on how they are used]. This is a distinction that is often ignored in America and I think it is bad. I certainly agree that we dont want to use torture if it doesn't help and they if we can get to our end in a better fashion, but it doesn't mean we should remove it as a usable tool. [I would also argue that the act of torture does harm to the torturer as well (psychological for instance) but that this is just one cost that needs to be considered].
Now I think you bring up a very valid point, that in application this becomes much more difficult. How can we know what the probabilities are, if it will or will not help, or even how to measure harm? That is a much stickier problem to solve and I certainly do not have an answer to what the proper formula to 'calculate' when we can and cannot use torture. But this current limitation in application does not mean that we cannot solve this problem.
Thanks for reading.
"interrogation yields truthful, useful, and otherwise unattainable intelligence that leads to the saving of innocent lives then it is one-hundred percent morally and politically acceptable"
ReplyDeleteI completely disagree. There is NO evidence what so ever that backs that up! If anything it has been proven that information that you gather from these techniques are unreliable becuase one, the torturee will say anything they think the torturer wants to hear even if its false to stop the treatment. Plus its been scientifically proven that a vast, complex literature, prolonged and extreme stress inhibits the biological processes believed to support memory in the brain!
First, you misquote by leaving out the "if" - a key word at the beginning of that statement. I'm not arguing that it always does, but I think methods can be deduced to have such effect. Your comment that the prisoner will often say what he thinks needs to be said to end the torture is often very correct. But if an interrogator does not bias the answers, or lead the prisoner in one direction it is difficult to know what can be said to 'game the system'. This is especially true if the interrogator has no pre-planned idea of what he wants. Furthermore, you have the issue of repeat games. An interrogator has the ability to confirm information and come back to the prisoner. If the prisoner knows this, it is much easier to induce correct answers. Obviously, any interrogation, whether torture or not, has to be conducted in a way not to elicit lies, but that is a matter of proper technique not an issue of whether interrogation is valid.
ReplyDeleteNevertheless, the argument isn't about the efficacy of specific techniques of torture, but a moral argument that torture if effective (key) is a valid and moral tool for governments to use. If you are right that 100% of the time torture does not provide anything useful in terms of information, than I would agree it shouldn't be used. But I doubt that is the case, and thus proper techniques to minimize harm from torture and maximize the resultant good intelligence should not only be developed but employed.
Thanks for your comments.