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Opening Arguments

Tortured debate

Washington Post and syndicated columnist Richard Cohen has an interesting take on torture and expresses a view that needs to be heard more often in the debate that too often focuses on utilitarianism -- let's not torture anybody, but let's not pretend that such restraint will somehow makes America safer:

America should repudiate torture not because it is always ineffective -- nothing is always anything -- or because others loathe it but because it degrades us and runs counter to our national values. It is a statement of principle, somewhat similar to why we do not tap all phones or stop and frisk everyone under the age of 28. Those measures would certainly reduce crime, but they are abhorrent to us.

But it is important to understand that abolishing torture will not make us safer. Terrorists do not give a damn about our morality, our moral authority or what one columnist called "our moral compass." George Bush was certainly disliked in much of the world, but the Sept. 11 attacks were planned while Bill Clinton was in office, and he offended no one with the possible exception of the Christian right. Indeed, he went around the world apologizing for America's misdeeds -- slavery, in particular. No terrorist turned back as a result.

If Obama thinks the world will respond to his new torture policy, he is seriously misguided. Indeed, he has made things a bit easier for terrorists who now know what will not happen to them if they get caught. And by waffling over whether he will entertain the prosecution of Bush-era Justice Department lawyers (and possibly CIA interrogators as well), he has shown agents in the field that he is behind them, oh, about 62 percent of the time.

I would probably start at a slightly different point on the utilitarian issue than Cohen but end up in about the same place: 1) If torture is not effective in getting the desired results, its use would merely be the sadistic inflicting of pain for no reason and cannot be justified. 2) Torture is most likely to be effective if the subject has reason to believe the end result might be death. 3) That would never be the end result of torture by Americans, and everybody knows it. That, in the face of 1, 2 and 3, there could still be "the squalid efforts of legal toadies to justify the unjustifiable" is not as surprising as it should be.

But what if torture could be shown to be effective more often than not? Well, that's where the moral dilemma lies, isn't it? For a good thrashing of the subject -- people actually arguing with each other, and politely -- check out the online debate at the Federalist Society. I liked this, from Douglas Kmiec, professor of constitutional law at Pepperdine Law School:

More than once in the last few days I have heard the former vice president or others advocate that President Obama release other classified materials in order to demonstrate the effectiveness of aggressive interrogation techniques. The ethical and legal assumptions under this line of argument will be troubling to many.

If torture has been declared an intrinsically evil act (i.e., wrong regardless of context), which I take it is the point of the United Nations convention which we signed, ratified, and incorporated into our criminal law, what exactly is the point of the former vice president's argument--unless he is making Lincoln's emergency argument into some kind of far flung general prerogative power.

The argument from utility at least vis-à-vis torture is pernicious because it seems to be a fulsome denial of law and the ethical principles settled beneath it. The best case for such utilitarian consideration to carry the day would be obtaining indispensable and otherwise unattainable actionable intelligence. I've noted in an earlier post, this factual indispensability and unattainability is highly disputed. What I wish to raise here is what would surely trouble an ethicist--namely, constructing a justification for what the world community has called the employ of intrinsically evil means.

Perhaps that United nations convention is too vague (as argued elsewhere in the debate), which would have been a good reason not to sign and ratify it and incorporate it into our criminal law. But we did. And when we want to make a case that we're fighting the "intrinsic evil" of militant fundamentalism, we'd better not take our eyes off the moral high ground.


Bob G.
Wed, 04/29/2009 - 10:22am

When arguing the UN's take on SEVERE pain, you have to realize that everyone IS different by degrees, ergo:
"One man's severe pain is another man's perverse pleasure."

Like to see those talking heads dispute THAT one.

"We're not TORTURING this detainee...we're just satisfying his LATENT HEDONISTIC AND MASOCHISTIC DESIRES."
(yeah...that works for me)

tim zank
Wed, 04/29/2009 - 1:59pm

What I find utterly amazing is the unmitigated gall of todays so called "experts" claim that torture does not work. Forget whether waterboarding, or listening to Keith Olbermann is torture. That part of the argument IS subjective.

What is NOT subjective is, throughout all of recorded history, torture has been an absolute mainstay of every single culture/society/civilization. One would have to assume any practice being used for such a long period of time (thousands of years) by seemingly diverse nations/tribes/cultures would have produced positive results or it would have simply fallen off the menu, so to speak. It is absolutely intellectually dishonest to ignore the FACT that torture DOES work. I'm not advocating torture, I'm simply pointing out the FACT that torture does get results.

But Lo & Behold: Thousands of years of use and seemingly desirous outcomes aside, todays Messiah blinded minions and faithful now tell us THEY know the "undeniable" truth is that "torture/coercive/enhanced interrogation is actually useless and does not produce ANY useful results?

How more full of sh&t can you possibly be? If you don't believe in torture, fine, make the case that it is morally repugnant, but don't lie and defy all common sense by making the obviously false argument that "it doesn't work".


Wed, 04/29/2009 - 3:54pm

Simply because torture is ubiquitous doesn't mean that it's effective, Tim. Yes, torture is a fairly common practice across a wide number of cultures, but that doesn't say much about its utility in contemporary interrogation techniques. Torture in the past usually served a completely different purpose: it inculcated sovereign power by showcasing the lengths to which the sovereign would go to maintain his monopoly on violence. The Romans, for instance, didn't torture to get information, they tortured to demonstrate the power of the Roman state. Confessions, such as they were, were pro forma and largely beside the points.

I think that, in the modern age, its not really going too far to say that this kind of extra-ordinary use of the state's coercive power exhibits a sentiment that is antithetical to liberal democracy. I'm not necessarily saying that enhanced interrogation is never an option in a nation like ours, just that the argument for torture's efficacy needs to take a pretty expansive look at the meaning and purpose of torture throughout history--it's not all Jack Bauer on "24."

tim zank
Wed, 04/29/2009 - 4:36pm

My point was really very simple, I just didn't do a good job of clarifying it.

Torture works for whatever purpose you like, be it extracting info or altering behavior. Those are facts backed up by thousands of years of history.

To argue we shouldn't use torture because it doesn't work is simply incorrect, and those making that argument are woefully full of sh&t.

Now the argument that we shouldn't engage in torture because it's immoral is a perfectly legitimate argument. One I would agree with. (waterboarding isn't torture imo)

I just wanted to point out how a small, vocal group of "kumbaya chanting morons" can be so blinded by emotion they completely block out any sliver of common sense. (that being the fact torture does work)
That's what liberals do, they block out all common sense and rely solely on emotion.

Michael B-P
Wed, 04/29/2009 - 11:07pm

Working backwards from your comments, Tim, as a recent visitor to right-wing blogs in cyberspace where many conservatives are venting their spleen and proposing insurrection, I might be inclined to say that liberals don't have a lock on "common sense deficit syndrome."

Since I haven't experienced waterboarding, I can't say whether it's torture or not. But a while back Christopher Hitchens tried it and gave his reponse (so maybe the whole Hannity/Olbermann pantywadding contest is just a remake).
Check that here: http://www.youtube.com/watch?v=4LPubUCJv58

I agree with you that the argument presented as "torture doesn't work" is B.S. It just depends on the intended effect.

But I also think that we're being naive to believe that just because the practice is denounced or repudiated by our President that it will discontinue. It has already been revealed that others are williing to engage in the technique as our surrogates. It doesn't require a great deal of imagination to reconfigure that approach into another one in order to maintain deniability.

By and large, the President, I believe, is seeking a reapproachment with other heads-of-state, particularly the Europeans and others liberal democracies. He knows he isn't going to win friends and influence people in those quarters by publicly condoning torture. Nor is he going to enhance his own career prospects here by being publicly consistent with his predecessor in an area where moral repugnance is so easily available as a basis for denouncing the previous administration.