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What is torture?
Or, perhaps more precisely and more to the point, what is the moral objection to torture?
I believe that this issue is at the heart of whether or not prosecution is called for among those variously involved in the Bush administration. So let me spend some time exploring this question; I'll then return to its application to the issue of prosecution.
Now, I think that the only sensible way of making out the moral objection to torture is to define torture as the deliberate infliction of pain and/or suffering to coerce.
Yoo and Bybee in their memo refused to accept such a definition. Instead, they opted for a definition that required not only the infliction of pain and/or suffering, but of permanent damage -- psychological or organic -- to those so subjected.
Now, of course, there is no good reason for Yoo and Bybee, based on standard moral principles, to declare that permanence is a critical feature for declaring the infliction of pain permissible or not. Certainly, in an ordinary court of law adjudicating ordinary law, it is no excuse for an intentional act of cruelty to another human being, or even to an animal, that it has no "permanent" effect.
I think that the issue of permanence has no real bearing on what constitutes the basic moral objection -- for the most part, the best way to think of the "permanence" of the effects of such an act is that it extends the infliction of the pain and suffering over time, and, therefore, makes it in aggregate greater than the same act without such permanence. But it is the infliction of the pain and suffering that is the core moral issue; the time period simply determines its full extent.
Indeed the day will likely come when it will be fully possible scientifically to induce in people the maximum amount of pain or anguish of which they are capable by means that don't engender long-term visible harm. No doubt there are pain centers in the brain which, when properly stimulated by perhaps electrodes or psychotropic drugs, can be put in states corresponding to great pain or anguish, up to and including the very worst. It would be hard to deny, I think, that inducing those terrible states would constitute torture; whether any residual effect is permanent is rather beside the point.
Beyond the fundamental irrelevance of "permanent effects" to the moral problem of torture, there is its insidious use to excuse torture by obfuscation. Clearly, it's quite possible to induce tremendous pain and suffering without inducing permanent physical effects. But what about permanent psychological effects? Well, the problem with that is that it is close to unknowable for a certainty whether the psychological effect of given procedure might be permanent. How might this possibly be established without following the lives of many subjected to such procedures and seeing if there might be some permanent effect? How would one determine the presence of such a permanent effect without serious disputes over whether that effect was something inherent to the individual's development, or would have been induced by ordinary imprisonment and interrogation? In essence, the only way to determine the answer to these questions is via a carefully controlled study of many decades duration -- and, of course, such a study will never be conducted for reasons political, legal, and ethical. Hence, even to invoke the "permanent effects" issue, when it comes to psychological effects, is simply to obfuscate. It throws up smoke and mirrors that permits the use of essentially any known way of inducing pain and suffering that doesn't involve actual organic damage.
And once one sees the irrelevance (and obfuscation) of "permanent effects" to the fundamental issue of torture, one recognizes that whether an act is torture is, in fact, largely self evident, insofar as the pain and suffering involved is self-evident. That self-evidence is the precise thing that no torture apologist can allow people to accept. If they do, his case is irretrievably lost.
It may make sense to say that performing an act whose potential moral objection is not self-evident or otherwise obvious should, for those subject to orders or instructions, be adjudicated by some relevant authorities. It does not make sense to say that when the moral objection is self-evident or obvious.
Let us turn now to the question of prosecution. The self-evidence of whether an act is torture has everything to do with whether someone who participates in it should be prosecuted.* The self-evidence of whether an act is torture, again, hangs on the self-evidence of whether the act induces great pain and suffering.
So the question becomes: who might have been aware of the pain and suffering inflicted by some of the so-called "harsh interrogation"? Certainly those who engaged in acts such as waterboarding, as well as those who saw the tapes of it could hardly have been more keenly aware of it. But one must also include those who read memos describing the procedures, and who saw how, among other things, the procedures could extract desperate, false confessions; they too would all have been inescapably aware of the suffering felt by the victim. Indeed, that suffering was the very point of the procedure, as they well knew.
What I find really objectionable in much of the discussion I have seen about this is the idea that "legal guidance" might outweigh, and excuse, the immediately and even instinctively felt cruelty of the acts. Those of us who read about those acts and object to them do so because we can see, based on the descriptions themselves, the barbarous cruelty in their deliberate infliction of undeniable pain. It is because of that immediate and overwhelming reaction that we demand that the practice stop. Indeed, it is on this ground, presumably, that Obama himself decries it and has forbidden it; it surely can't be because he "knows" that the effects of those procedures are permanent. How then can "legal guidance" be used as an excuse to engage in those very practices -- which is Obama's own reasoning when it comes to those in the CIA who carried it out?
Either those acts are self-evidently cruel and immoral, as we maintain, or, if they can be excused by some legal memo, they are not. We really can't have it both ways - which is what Obama and many others seem to want to do.
*While there may be a distinction between the moral and the legal in some cases, the great majority of criminal laws are certainly intended in their spirit to follow the moral argument. This is most notably true with prosecuting war crimes, which nearly always feature appeals to underlying moral considerations. It is precisely why "following orders", ordinarily required by relevant laws and regulations, serves as no justification when those orders might include morally depraved acts, such as killing innocents as in concentration camps. The self-evident moral obscenity of the acts overrules any other consideration, and must be used as the overriding consideration in the relevant laws governing prosecution.
[crossposted at FDL]
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