Prologue: Writing the Unwritable Post
So let's talk about torture.It's been in the news for a while now, and has quickly become a defining issue of the last 9 years: legally, politically, and ethically. It fairly clogs the news cycles on some days – the media trots out questions and talking points, which ripple into the morning shows, local papers, and countless web sites:
- Is it right or wrong?
- Who authorized what?
- Who knew or didn’t know, and how much?
- Republicans versus Democrats.
- Which religious demographics support it or don’t.
- How America + Torture = Nazi Germany.
When we discuss things like racism, or gun violence, or whether drugs should be legalized, there are plenty of folks with first-hand knowledge, and even more with second- or third-hand knowledge. Mention torture, and suddenly almost no one is an expert (even if they have an opinion). The folks “in the know” are people most of us will never meet. Many are deliberately hidden from the world, so even if you do know them, you don't know you know them. This makes torture a unique consideration to the common man. How do you genuinely contemplate something that you know nothing about? If you're a FrankSpot reader, you know that I lament that people generally opine (and take up fortified positions) in relative ignorance, but this topic is unique in that there really isn't any way for the average person to contemplate it with a foundation of experience. By default (and lucky for all of us), we lack the ability to speak on the topic from place of knowledge. Everything we think we know is anecdotal. That's one of the things that made it so hard for me to put words around this topic. What do I really know about torture?
But the story is still very much in the minds and in the media, and I’m drawn to it because it speaks to our fundamental humanity. I want to explore the philosophical notions that underpin the outrage, and the real world considerations of torture’s application and efficacy. Unfortunately, it more and more seems that every measuring stick is insufficient, and there’s a good chance that the only thing likely to be borne of the debate…is more debate. That poses a special and significant challenge for me: what do philosophers do with a conundrum like this? What if there is no final answer? No absolute right or wrong? No way to build true consensus? What if we just can’t solve this one?
These questions dogged me every time I tried to put words to page. What follows is my wholehearted attempt to make sense of it all.
Defining the Indefinable
What is torture?As I mentioned above, the main problem with this discussion is that torture isn't one easily definable thing. It's a word open wider to interpretation and semantics than most in our language. Sure, there's a dictionary entry, but as I survey the outrage of everyone touched by the topic, it’s clear that that the “official definition” has barely informed the debate. It turns out, instead, that the notion of torture is as personal and subjective a thing as anything out there. People define it through a combination of religious, moral, and ethical beliefs, political affiliations, gut reactions, and their own sense of place in the world. So the dictionary entry doesn’t add any meaningful text to the discussion. What is torture? It’s whatever the debaters – the observer, the victim, the state enemy, the foreign government, the special interest group – want it to be. If we were discussing torture as a philosophical exercise, or a re-examination of unfortunate history, we could stop there. And it wouldn’t matter that we couldn’t reach a consensus. But the debate has changed: it is no longer a lukewarm ethics discussion, but an urgent legal issue. That brings us to the second problem:
The Legal Definition
In a society of laws (which I’m glad I live in, despite the sometimes rickety condition of our legal system), we classify specific behaviors as illegal. It makes sense if we want to surround ourselves with safety and order. But, there’s a catch, and it’s the same one that makes the torture debate so hard to resolve: what measuring stick do we use? This is an important consideration in any debate, and doubly so in this one. Laws require both a proverbial watermark as a starting point – a consensus-based standard to be used any time we perceive a transgression – and very specific wording. Like it or not, laws aren’t meant to be flexible; and well-written ones don’t leave much room for interpretation (even if they are dense with legalese and abstraction). That’s an important protection for us as citizens. (And yes, that creates a host of other issues, but I’ll save that for another blog entry.) Laws need to be specific if they are to be understood and enforced fairly. This applies to simple stuff – don’t take something from a store without paying for it – and deep, unwieldy stuff like torture. So, regardless of your personal feelings, torture needs a legal definition if we’re going to address it as a society. That means specifics, examples – dictionary entries. It means a legal consensus even when there is no philosophical one. And to be clear: it can’t be a moving target.Let’s stop on that for a second, just to make sure we’re all on the same page. Torture – from a legal standpoint – has to be strictly defined. That means one clearly stated description of what constitutes torture. It can include a laundry list of citations and examples, but the definition has to be finite. It has to end. If you look to the law, you’ll find that there’s already a legal definition in place. That’s a key problem with the current debate: people keep forgetting (or ignoring) that definition in favor of their personal outrage, and want to categorize as torture treatments that currently fall outside the legal definition. In itself, that’s a noble pursuit. Something has rankled us, and we want the law to be rewritten so that thing can’t happen again. But, the problem is further complicated here by the public's need to punish someone: it’s not good enough to rewrite the law for tomorrow. People want to bend the law to create a retroactive illegality. An interesting idea, I suppose, but impractical at best, a path to absolute ruin at worst. As a rule, we don’t criminalize past behavior, only future behavior. Call it a conceit to the linear, forward-only nature of time’s passage – and to our basic inability to predict which of today’s legal behaviors would land us in the electric chair tomorrow. It’s a basic protection we have to embrace: what you did yesterday might become illegal tomorrow, but you won’t be prosecuted because it was legal when you did it.
Now some people argue here that the Bush administration’s lawyers deliberately exploited the finite nature of legal language to “get away with” treatments that don’t violate the letter of the law – but still cross into unethical/philosophically shaky behaviors we’ve retroactively classified as torture. They’re right, but skirting the law isn’t actually illegal. As despicable as it seems in this context, “going around the law” is just another part of the legal process. Those lawyers aren’t the first or only ones to do it. It happens every day, sometimes in our favor, sometimes to our detriment. That is a conceit to the vagaries of our language, and a basic fact of life. I recently wrote a post about the drive to legalize drugs in America, and I posited that every regulation (or law) breeds loopholes. This is the same problem. If you don’t list smacking someone in the head with a rolled up magazine as torture – or have intersecting laws that constrain any of the constituents of that treatment – then it’s legally not torture. And guess what – it’s not just lawyers and government officials who exploit that fact. Almost everyone you know does too (in some form), and so do you. It’s obviously not in the same vein as torture, but the principle is the same. We have imperfect language, so we have imperfect laws. The best – and some would say smartest – thing we can do, is use history and better language to help us redraw ineffective and incomplete laws. In this case, we can rewrite torture laws to include what was done to those alleged terrorists; add as many new clauses and behaviors as we like – dig into history books, and even popular fiction, and litter the legal definition with examples. We’ll be behind the curve, but we can be assured that those specific tactics will be illegal the next time they are used.
Which brings us to:
The Three Killer Questions: Efficacy, Intent, and Degree
Despite the basic disagreements about what specifically constitutes torture, there is one common belief that seems to resonate throughout the national debate, and across many international borders: torture itself is bad. It's something only bad people or bad countries do. Proof of that belief is found in treaties and pledges, and in the outspoken condemnation of those who torture. But just below the surface, beneath the philosophical condemnation of the act, lies the tricky question of efficacy. Does torture ever work? If you follow the national headlines, or read books like Daniel P. Maddix’s The History of Torture, you probably get the idea that it doesn’t. And if the national uproar is an indication, we don’t want it to work.But there’s an important question that lingers, even if it’s fully obscured by the shining spotlight: what if it does work?
I know that’s a scary question. It sets people’s hair on end, and makes people reach for antacids, or their bibles, or the television remote. But, what if torture isn't the ineffective black hole of the popular belief? Sure, you can point to what happens when you torture an ignorant someone for information: they’ll say anything to stop the torture, and none of it is worth the breath it arrived on. But what happens when you torture a person who actually has the information you need? This is an interesting point that comes out of the Bush administration: they say that “harsh interrogation” produced actionable intelligence. Regardless of your personal feelings, if it’s true, then it’s a fact that counts in the reality of the world, and has to count in our debate. And it begs the larger question: how much is a life, or a handful of lives, or a way of life worth? How far would/should we go to secure something important for ourselves? What happens when talking simply doesn’t work, and when the clock is already ticking? I know this is dangerous water, but aren’t these questions valid parts of the debate? Some people argue that the loss we stand to suffer (personally or nationally) is insubstantial compared to the moral breach we commit when we abandon talking in favor of inflicting pain. They could be right. I think it's probably a question for the ages, and certainly for the people that have already lost something or someone because of our adherence to principle over the need for positive results.
Lets focus on that for a moment: why does anyone use torture? I’ve been exploring the efficacy question, but I haven’t really touched on the purpose question. Like efficacy, it’s an important thing to explore.
As I’ve absorbed the national commentary, I’ve noticed that there are lots of different ideas about why we used those interrogation techniques in the first place. A good portion of people accept that they were used to obtain information – some about yesterday, but most about tomorrow. Some people think it was to extract confessions – like the Viet Cong used, a way to demoralize the prisoner’s parent nation – or to exact punishment, or gleefully inflict pain on inferior races. They evoke images of World War 2 Japan and Nazi Germany. Provocative stuff, to be sure; more importantly, a prompt to discuss intent – to examine if and how the intent of the torturer factors into our considerations. Does a lack of sadistic intent count in the torturer’s favor? Is it a more acceptable practice if torture is used strictly to garner information, and not applied with malice or hatred? If it’s an unfortunate escalation, in situations where gentler methods don’t produce the needed results? If it’s applied clinically, dispassionately?
And what about degrees? As we build our new legal and national definition of torture, does degree count for something? Should we compare types of harsh treatments? Is that informative as we draw our lines? Is a slap as bad as genital electrocution? Is a flushed holy book as bad as pliers-based fingernail extraction? Is being forced into a naked human pyramid, or being deprived of sleep, as bad as being beaten lame with batons and 2x4s? If we take degrees into consideration, don’t we run the risk of more unethical treatments slipping through the legal cracks? If we ignore degrees, aren’t we opening the doors of interpretation so wide that our “enemies” can complain that restricting access to cable TV and alcohol in prison is just as harsh as crushing their fingers in drill presses? How do we factor in the common sense comparisons without opening the door too wide, or shutting it too tightly, and without ignoring something key? Is there even an answer?
Sudden Epilogue: A FrankSpot First
So, I’ve just asked a bunch of questions, and I know it seems like I have a lot more ground to cover. But I’m not going to cover it. As unlikely and abrupt as it seems, I’m going to end here – after two months, and 2500 difficult words. As I predicted in my prologue, I haven’t found any answers on this. Not for myself, not for my readers, and certainly not for the national debate. Instead, after all this time and typing, I’ve become exhausted by the topic. I’m truly at a loss to draw some profound overarching conclusion, or make any valid suggestions on how to address the ongoing issue. I can’t even answer most of the questions I’ve raised here. At least not definitively, and not in the space of a single post. The most I can do is ask my readers to keep this post in mind as they add their voices to the debate. I hope they’ll remember that religion, ethnicity, age, political belief, and level of education impact how people feel about torture; so do being touched by loss, or war, or terrorism, or fearing for the lives of people loved. I hope they’ll remember that the law is an important tool – especially in this debate – but one that shouldn’t be used for revenge, or to apply retroactive justice. And I hope they’ll remember that – even without one we can see from here – the pursuit of an answer is still important. As we strive, we grow; and as we learn, we change. Hopefully, all for the better.Peace.
