Friday, June 5, 2009

Against Torture (including water-boarding)

1. Most importantly, it's immoral.
2. It's ineffective.
3. It negatively affects the souls and reputations of the individuals who carry it out and the country they represent.
4. It's illegal several times over:
  • USC § 2340 defines the crime of torture as

    "an act... intended to inflict severe physical or mental pain or suffering... [meaning] the prolonged mental harm caused by or resulting from—

    (A) the intentional infliction or threatened infliction of severe physical pain or suffering;
    (B) the administration... or threatened administration... of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
    (C) the threat of imminent death; or
    (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
    (C) the threat of imminent death; or
    (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering..."

    And I think water-boarding might easily fall into at least either the "act intended to cause... mental suffering" or the "threat of imminent death" category.
  • The Constitution, in article VI clause 2, states that

    "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

    Therefore all treaties our Congress has ratified rise to the level of being constitutional law. One such treaty is the United Nations Convention Against Torture.

    The United States is a party to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which originated in the United Nations General Assembly on December 10, 1984, and signed by the President Ronald Reagan on April 18, 1988. Ratification by the Senate took place on October 27, 1990.

    The United Nations Convention Against Torture, in article 1.1, defines torture as

    "Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."

    Notice how the definition of torture includes mental suffering for such purposes as obtaining information. This makes water-boarding quite clearly unconstitutional.
  • The military field manual for Human Intelligence Collector Operations mentions "waterboarding" by name as a prohibited action (p. 5-21).

I think the military field manual for Counterinsurgency sums it up when it says "Efforts to build a legitimate government though illegitimate actions are self-defeating".


  1. Well said, good sir.

    I can't help but agree with the data you've presented. It's pretty difficult to argue with.

    Thanks for asking me my opinion on torture while I'm running on a Treadmill.

  2. Concerning JMR’s comments:

    I’ve read his post several times, and I’ve yet to see a straightforward argument. For one, he runs very near presenting at least two red herrings: the first is the juxtaposition of Christ’s being tortured by the Romans with the alleged torture that went on in Gauntanamo. But Christ was tortured as a means to punishment, not the obtaining of information. Perhaps this difference doesn’t make a difference to some, which is fine. But the difference must be addressed if he wants to do more than preach to the choir; viz., if doesn’t want to beg the question against someone who doesn’t already believe that torture can never be justified in any circumstance whatever.

    The second red herring is the juxtaposition of the justifications for torture with the justifications for abortion. But the parallel doesn’t seem to get off the ground. What do the reasons that some might give to justify waterboarding someone who has intentionally endangered the lives of non-combatants as a means to saving them have to do with the intentional killing of a human being who is guilty of absolutely nothing?

    The only substantive arguments seem to be:
    Torture is wrong because it debases the torturer.
    Perhaps it might be debasing to waterboard someone who wants to kill noncombatants, but surely not anymore debasing than any other destructive act, either justified or not. So how does it follow that ‘act F is wrong’ because ‘F-ing is debasing’?

    Torture is wrong because it dishonors the image of God.
    Isn’t this just the point in contention?

    Concerning torture being ineffective:

    Hmm. Interesting.

    Concerning point (3), that ‘It negatively affects the souls and reputations of the individuals who carry it out and the country they represent.’

    Any destructive act will harm the individuals performing it. So what’s your point? This point applies mutually to killing in self-defense, or the Allies storming the beaches at Normandy, etc. But surely you don’t think these two are wrong because they ‘negatively affect the souls who done did it’.

    Perhaps it tarnishes our reputation. This is important, to some degree, but I doubt the morality of torture will be decided by it.

    Concerning your point that ‘It's illegal several times over.’ The same could be said about disobeying the Jim Crow laws when they were in effect. All that laws do is make enforcement and coercion possible on a grand scale. Hopefully the morality of an act isn’t decided by its legal status. Maybe your post isn’t trying to establish the link between torture being illegal to it being immoral—but maybe you just have in mind those people who try and argue that torture isn’t illegal.

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  4. What I take to be the strongest case for the immorality of torture is as follows.

    It’s always wrong to bring about a per se moral evil for a per se good.
    Torture is a per se moral evil.
    Torture is always wrong, even if done as means for a per se moral good.

    Why think torture is a per se moral evil? What keeps us from categorizing it under other none per se evils like ‘killing in self-defense’ or ‘bombing military targets even when civilian casualties are highly likely to occur’?

    Well, these latter two cases are putative candidates for “double-effect” (DB) justification. DB reasoning says that an evil state of affairs can brought about so long as the evil brought about in a given effect is
    (1) not a means to the good effect
    (2) that the evil effect can be foreseen without it being intended.

    In the case of killing in self-defense, it can be justified since if someone happens to kill in self-defense, they need not have intended to kill, and the good of effect (preserving one’s life) is not necessarily connected with the evil of killing. In other words, one can protect her life without either intending to kill someone or without killing someone at all.

    The same goes for ‘bombing military targets even when civilian casualties are highly likely to occur’. This action is justified via DB since the killing of civilians is not a means to destroying military targets (the two are in no way connected), and secondly one can foresee civilian causalities without intending them.

    But torture in any and all cases cannot meet the DB conditions. For one, in every case of torture the evil effect (someone’s getting tortured) is always a means to a good (i.e., it’s not just an unhappy side-effect like in the above mentioned cases). And secondly, it’s impossible to torture someone without intending to torture her.

    I find this case to be persuasive, but I think the possibility of a just war might count as a powerful counter-example. In a just war, it’s clear to me that the killing of other human beings is a means to a good (like the protection of liberty or property, for instance), and you cannot willfully engage in armed combat without willfully intending your enemies’ destruction. Famous just-war theorists dealt with this problem by changing the subject: Thomas Aquinas thought that a just war is only just if it’s declared by a legitimate authority. But this entails, contra Locke, the impossibility of a just revolution- for who was the legitimate authority that was able to declare war on England— surely not the Continental Congress, because, de jure, they had no such authority.

    This shows, I think, that DB reasoning cannot show the moral justifications of all putative morally justifiably acts (e.g. the possibility of a just revolution). So why might a revolution be deemed just? Intentional killing can be justified, in the absence of a legitimate authority, if the killing is done for the sake of securing a people’s natural rights.
    Incidentally, I think a rights-based analysis might show how torture could be justified. On this view, a person who willfully endangers the lives of non-combatants seems to cancel out some of her natural rights. Which natural rights? There are many, but one natural right she might have lost is the right ‘not to be waterboarded for the sake of saving the self-same people she has endangered.’

    But isn’t torture a per se evil? Not on this view, since per se evils can only happen to people who have rights—rights of which anyone who willfully endangers the lives of noncombatants ipso facto doesn’t have.


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