Senator John McCain’s proposed amendment on interrogation practices has sparked lots of discussion about torture and coercion, including on NRO’s weblog, The Corner. Ramesh Ponnuru added some typically valuable insights yesterday in a post that was primarily about Charles Krauthammer’s recent article in The Weekly Standard, but also mentioned my own contributions on this topic. I thought it was worth responding. That response is more extensive than what seems appropriate for a Corner post, so I’ve made it into something longer. I should stress, however, that Ramesh wrote a blog post, not an article. This piece is an effort to elaborate my own thoughts in light of the couple of points he raises, not to rebut his position–which he should have a better opportunity to develop before anyone presumes to challenge it.
I begin with the observation that Ramesh misstates my position, slightly but significantly, when he describes it as being “that torture is not only morally permissible, but obligatory, in cases where it is necessary to, say, save a city from imminent destruction.” To the contrary, torture is against the law, and I believe in the rule of law–even when the laws are foolish.
Leaving simple national-security concerns aside, one reason the discussion about interrogation methods is so important is that we have an obligation to follow the law, whatever the law is. I have criticized Senator John McCain and Yale Law School Dean Harold Koh over their support for an indefensible law, which they fully expect to be broken when necessary. I want to be able to make a fully defensible law–i.e., one that works in all situations–because I believe we have to try to follow the law in all situations. Anything else is a cop-out.
To be fair, I don’t pretend to know what I would do if I were a decision maker in the ticking-bomb case. If thousands of lives hung in the balance, I suspect I would probably disregard current law, order coercive interrogation, and be prepared to suffer the consequences. But I do know that even though I believe torture/coercion would be “morally permissible” in the abstract, I would hesitate to authorize it, and perhaps even refrain from authorizing it, simply because it is against the law. And I felt even more strongly about that when I was a public official, because then I was under an oath, which I took very seriously, to uphold the law–an oath that covers even the dumb laws.
For what it may be worth, that’s why, in connection with torture (and the more pertinent but less-discussed topic of coercion), I’ve tried to speak more about what the law ought to be than what it is. As it is, torture is unqualifiedly illegal. Therefore, I don’t and wouldn’t take the position that it is “obligatory.”
Curious Torture Taboo
To address the two main points Ramesh raises: (1) I don’t believe the ticking bomb blows up “any categorical moral prohibition,” and (2) it is already a fact–torture or not–that what we can do to someone we’re interrogating depends on his guilt and the gravity of the situation. In many situations other than interrogation, what we can morally and legally do to someone already depends on his guilt and the gravity of the situation. That being the case, I continue to be puzzled over the torture taboo. Out of all the “let’s not go there” lines we could conceivably draw as a society, it is odd to me that the single one we pick out to defend absolutely involves the physical integrity of the morally guilty terrorist.
I am more sympathetic to Bentham’s utilitarianism than Kant’s categorical imperatives here. But just to stick with the latter for a second, categorical imperatives have to be defined. Let’s assume the imperative we are talking about is the sweeping “never torture, period.” In point of fact, we are already prepared to be in gross violation of that imperative when the stakes are high enough. For example, we hope we will never have to use our nuclear arsenal. But we maintain it nonetheless because we are prepared to use it if the provocation warrants–even though we know it cannot realistically be done without effecting the grisly (and in some instances, slow and painful) deaths of thousands of civilians. By the logic of the same categorical imperative that would outlaw the nonlethal torture of single terrorist, we should be prepared to disarm our weapons of mass destruction, since they cannot be used without causing torture. We would no longer be secure, but we would be faithful to the categorical imperative … however long we lasted.
If we can’t in good Kantian spirit hold to commands like “don’t torture,” we then have to refine the imperative, taking account of situations. But then we also have to justify why we should be uncompromising about the non-lethal infliction of pain during interrogation when we are quite willing to make compromises in situations that are more dire (like war-making and capital punishment). And we have to account for things like who is a morally culpable person and who is an innocent (e.g., why, if your goal is to compel information, would you forbid coercion of an uncooperative guilty terrorist but permit–as we do–the incarceration of an uncooperative innocent person?).
I wouldn’t presume to speak for Charles Krauthammer, but I doubt he is making the strict utilitarian claim that Ramesh’s post suggests. I know I am not making that claim. This strict utilitarian argument (which Alan Dershowitz, who also approves of non-lethal torture in dire circumstances, properly denigrates as “morality by numbers” in his book, Why Terrorism Works) holds that torture can be justified whenever the lives saved outnumber the lives tortured. Such a crude view is naturally vulnerable to the suggestion that it embraces the torture of moral innocents (like the mother and infant of the terrorist referred to in Ramesh’s post) if that’s what it takes to get the morally culpable person to talk.
When Krauthammer, I, or anyone else cite the ticking bomb as a useful illustration of the folly of an absolute prohibition on torture, that is not remotely the same thing as saying “anything goes if it’s for the greater good of saving lots of lives.” Bentham talked about the torture of a criminal to save 100 lives, not the torture of anyone to do so. I would not permit the torture of morally innocent persons. I also think there are many methods of applying pain that we would absolutely ban because they are perverse and unnecessary to the task. The slippery-slope argument against torture–which is a very respectable one, but one I find ultimately unpersuasive–is very effective if its proponents can succeed in painting the opposition as anything-goes torturers. But that is not an accurate reflection of the position of most people who believe there are more important societal values than the concededly legitimate interest of a morally guilty person in not having his physical integrity disturbed.
The ticking bomb, moreover, is useful not merely because it is an entirely plausible hypothetical. It is an instructive device, very much like the worst-case-scenario questions appeals-court judges commonly put to lawyers at oral argument. It is designed to reveal and challenge the ultimate logic of an advocate’s position–so that he can’t get stave off scrutiny of his arguments by couching them in arresting words and phrases–whether they are agreeable ones (like “marketplace of ideas”) or frightful ones (like “torture”). It is significant for people to know that those arguing for an absolute ban on something as a matter of public policy are essentially unwilling or unable to defend the ban when things get tough–i.e., when reality intrudes and they are actually forced to make hard choices.
That is especially vital to do here, because we are mired in the rhetoric of torture when, in fact, most of what we are talking about is not torture at all. If the ticking bomb can succeed in pushing people off their (understandable) predisposition against any torture under any circumstances, their minds become open, often for the first time, to the reality that these are difficult, circumstance-driven matters. It involves important but competing values. It is not responsibly given over either to absolute prohibitions or anything-goes license. When people come around to that notion, you can then have a more reasonable conversation with them about where the rubber really meets the road here: What coercive methods, short of torture, should we be allowed to use? In what circumstances, short of the ticking-bomb exigency, should we be allowed to use them? And who should decide and be accountable?
Finally, there are many values more worthy of our concern than the physical integrity of the morally culpable, yet we, as a society, have seen fit to compromise them when it is necessary to defend or vindicate other values. Just as we presumptively oppose torture and coercion, we also oppose, for example, incarceration of the innocent, compulsory isolation, burglary, and murder.
Still, (a) if an innocent person who has relevant information refuses to speak, even about wrongs that are far less serious than terrorism, we are willing to imprison him in civil contempt in order to coerce his cooperation (and imprisonment for the innocent, it bears noting, can on occasion be just as horrid a physical and mental experience as coercion is for the uncooperative terrorist); (b) if prison inmates misbehave badly enough, or if they are enough of a threat to society, they are often held in isolation for months or more, an experience akin to mental torture; (c) if we believe evidence of a crime may be found, we authorize the police to enter people’s homes, forcibly if necessary, and take their belongings; and (d) we impose the death penalty, shoot-to-kill in certain domestic policing crises, would have shot down hijacked airliners loaded with innocent civilian passengers on 9/11 in order to prevent them from hitting their targets and killing even more civilians, and engage in warfare knowing full well that innocent people will be collaterally killed.
None of this is to trivialize coercion or torture. It is to wonder aloud why it is that we trust ourselves to make necessary compromises, draw appropriate lines, and employ adequate due process in connection with a wide variety of necessary evils, but we somehow have concluded we are incapable of the same judgment when it comes to interrogation. A person is not tortured any less because you strike him from the blind 10,000 feet in the air rather than from across a table looking him in the eye. What is the principled reason for sometimes permitting the former but never the latter?
–Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.