Torture Segue #1


I’d like to believe that torture doesn’t work. If torture didn’t work, that’d be sufficient reason to forbid it; sufficient but not necessary. Torture is malum in se; it’s illegal—and should be—not because it’s ineffective but because it’s wrong. My opposition to torture is a matter of honor. It doesn’t matter to me whether it works or not; we—Americans—shouldn’t do it.

I don’t give much credence to the torture memos’ accounts of what CIA said about “enhanced interrogation” (which includes non-torture as well as torture methods) preventing an attack. But I’m sure there are occasions when torture works. Torture someone 83 or 183 times, and he’s bound to tell you everything you want to hear; some of what he tells you will be the truth and of “high value”. That doesn’t mean we should license our government to torture.

When conduct is generally criminal, but a specific instance of that conduct serves some societal purpose, we say that that instance is justified. For example, murder is illegal (because it’s wrong). But the use of deadly force (including murder) can be justified by (among other things) self–defense, defense of a third person, and defense of property. Most murder trials in Texas, as a matter of fact, are not about whether one person intentionally killed another, but about whether the murder was justified. If a murder was necessary, that is a defense to prosecution; the murderer is not criminally responsible.

Here’s Texas’s law on necessity, from Penal Code Section 9.22:

Conduct is justified if:
(1)  the actor reasonably believes the conduct is immediately necessary to avoid imminent harm;
(2)  the desirability and urgency of avoiding the harm clearly outweigh,
according to ordinary standards of reasonableness, the harm sought to
be prevented by the law proscribing the conduct; and
(3)  a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.

Federal law is a little less legalistic. A defendant claiming justification must show:

(1) that he was faced with a choice of evils and chose the lesser evil; (2) that he acted to prevent imminent harm; (3) that he reasonably anticipated a causal relation between his conduct and the harm to be avoided; and (4) that there were no other legal alternatives to violating the law.

I can see a scenario in which the torture of Abu Zubaydah might have been either necessary or justified: if the torturer acted to prevent imminent harm (“the ticking bomb”) with no other legal alternatives.

Call it the Jack Bauer scenario. If Jack Bauer can show that torture was the least of the available evils, he shouldn’t be convicted. But that’s for him to prove. This puts the torture memos in new light, incidentally. “Imminent” harm isn’t harm that’s going to happen sometime after you seek legal advice. Also, Bauer might have a justification defense even while Bybee and Pelosi, sitting in their offices in DC, do not; that might change my thinking about prosecuting them all.

Why not give Bauer free rein? Because there’s substantial societal benefit in requiring someone who’s choosing among evils to be at some risk for choosing badly. The greater the danger of choosing badly, the more careful Bauer will be to choose correctly.

That some murders are justified doesn’t lead us to countenance all murders; in the same way, that torture might sometimes be justified shouldn’t entice us to give our government carte blanche to torture. Morally repugnant conduct doesn’t become any less repugnant because it’s necessary, and the lesser of two evils is still evil.

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0 responses to “Torture Segue #1”

  1. I have one major problem right off the bat with this post, possibly others but this one is easy.

    If it is in any way justified it is not murder. Murder is by definition an unjustified killing.

    Even imperfect self defense is homicide rather than murder.

    • By whose definition? In Texas, murder is “intentionally or knowingly causing the death of an individual”.

      And even in a place that defined murder as an unjustified intentional killing – even if justification were not a defense that the accused had to raise, but rather an inferential rebuttal – why would this be a major problem to you? Who has the burden of production may be of some small importance, but the point still holds – we don’t permit all killings just because some might be necessary.

      WADR, sounds like nitpicking to me.

  2. I have a quibble.

    “Morally repugnant conduct doesn’t become any less repugnant because it’s necessary”

    That doesn’t sound quite right to me. A necessary killing in defense of innocent life (including yourself) is not a morally repugnant act. Morality implies a choice, but no matter what you did something bad would have happened.

    Nevertheless, death at the hand of another is a terrible thing whether it’s self-defense or murder most foul. It’s just that a self defense killing saves someone else’s life, so it may be the least undesirably of the obtainable outcomes.

    Perhaps I’d prefer it if you’d written, “A terrible thing doesn’t become any less terrible because it’s necessary.”

  3. Americans don’t do torture and there must have been a massive breakdown in internal security for a number of federal agencies.

    There are numerous incidents of brutal behavior by local and state police officers but it appears that in the vast majority of such cases they were not attempting to obtain information. If there was even a hint of such behavior there would be a major shit storm at the local or state level. In other words the use of brutal tactics to obtain information appears to be a practice only used by federal agencies.

    The federal internal security watchdogs for these agencies either were not doing their jobs or they were being ignored. In some cases it is clear they were ignored but it is also possible that in other cases they were not doing their jobs. Congress is supposed to promptly investigate malfeasance of this nature instead of allowing the executive branch to drag their feet and destroy evidence.

  4. I’m really glad you’re grasping the nettle here, and dealing with the possibility (I think it’s about as certain as we get, but that’s another matter) that torture can, in some situations, produce useful and important information. There’s a large component of “neener, neener, I’m not listening” in some folks’ discussions around that issue.

    • Yes, but the useful information is no less tainted due to YOUR illegal activities to get it. Ok, Yes it saves a life, or MIGHT save a life. Whichever it may be, still does not take away the illegality of your actions in torture. The one question I would have on this was, how relevant was the information after the 100th waterboarding? I mean, how long had he been in custody?

      We know the AQ is not un-intelligent. Knowing that an important person were captured, one that knows about certain secrets, the secrets would be changed, bodies moved, defenses re-done. Anything outside of the first 24 hours would have been worthless. As for naming names, Any individual that could have been named should have been, or were known at the time. If not, then we need to rethink the naming of the Central Intelligence Agency..

      • Well, it’s at least probably not a “100th waterboarding.” It appears the the large numbers are the number of “pours” — times water was poured on a guy– and the smaller numbers (like 5) are the numbers of waterboarding sessions; 3 appears to be the numbers of individuals waterboarded.

        I’m not saying that makes it right, or wrong, mind you.

        But the notion that the AQ equivalent of the S3 would only possess useful information with a 24 hour lifespan is almost certainly wrong.

        • Once someone of that level was grabbed, things are immediately changed, so again, I do not believe that any information past the 24 our mark was relevant enough to waterboard him. pour versus session… you mind telling me what the difference is? First come the lies, then small truths then full truths. 100 is overkill. 1 is overkill. There are other ways, and that fact is what stains the Bush administration, and the American People.

          ‘WE’ are ok with it (as long as it isn’t us on the board)…

          I

          • I’m carefully not taking a position on whether or not it’s okay, or, if it is, under what circumstances it might be. Chill.

            But you’re trying to set up a straw man, and you can do that, subject to the ruling of the host; I get to point that out, ditto.

            The issue isn’t whether AQ would try to work around the fact of their top operations officer being snatched; of course they would. But it’s bizarre to argue that all significant information that he’d have would be utterly stale after 24 hours. Not important enough to waterboard him? I claim gotcha: you’re implicitly conceding that he might have information, from hour zero to 24, that was important enough to waterboard him over.

            My guess, by the way, is that the S3 of AQ would be a treasure trove of intel, even many months later. Not about what house a bomber is hiding in on day one, but about players and support and a whole bunch of things, and that’s precisely the sort of information that those folks who argue in favor of the kinder, gentler forms of interrogation are going for.

            I don’t think you get to dismiss a serious issue with smoke and mirrors. Not effectively, anyway.

          • “But it’s bizarre to argue that all significant information that he’d have would be utterly stale after 24 hours..”

            No my original argument was any information he might have that we DIDN’T would be stale. If we were not already well versed in most of the information that he could have, then we are surely lost.

            I made no such claim that torture was justified. My point was if they wanted to gather information, or attempt to then there were other methods. Not setting up any ‘strawman’, which by the way is a silly term.

            My point was, and it was obviously lost, is that the government misused the ability to gather information from someone, they chose the low road versus the high road and that they would have no purpose served using the methods that they did. 24 hours, 48 hours, it is irrelevant, what matters is the road they took. Knowing that the information would have limited rewards after a small amount of time did not deter them from violating all treaties on the treatment of Prisoners of War. The very fact they put them in Gitmo is fact supporting the knowledge of Bush, that they were going to do things that would be against the US laws.

  5. I don’t know if I find it more laughable or disturbing that if another country used the same methods the US did to extract information from combatants (particularly American combatants) our government would condemn it in a heartbeat.

    The pro-torture crowd just doesn’t seem to get the point that what comes around, goes around.

    • Yes, that was my point on another entry. We claim torture against the losers, but “WE” would never stoop so low, OH NOES…

      The adage is ” Our Government does the things that you thought only other governments do.”

    • Err… no.

      The “what comes around, goes around,” argument supports the use of torture by the US; American combatants have been routinely tortured since (at least) the Korean War, during periods when it appears that torture was not only not US policy (as it arguably was during part of the Bush II administration), but was actively if not universally punished. That argues that if the US ceases to unilaterally waive the use of torture, perhaps others might be deterred. (I’m unpersuaded, myself, but it’s far more possible than the counter argument, which is simply counterfactual.)

      As to treatment of captives by the AQ people, perhaps it would to be better to ask questions instead of making assumptions, instead.

      Would KSM have put down his sword or saw and and not hacked off the head of Danny Pearl by beheading if he had reason to believe that he would be captured, and would end up being tortured? I don’t know, but if you’re going to discuss torture in practical terms, you’re going to have to deal with that possibility. If you’re going to insist that it’s utterly morally unacceptable, no matter what the circumstances or consequences of not using it, then you don’t have to look at any specifics.

      (Just to be clear: I’m neither advocating an utter ban on torture and/or waterboarding nor advocating against it. Me, I’m not sure if, given that Hiroshima was right — and it was; either that, or we gotta dig up Roosevelt, Truman, Lincoln and Sherman to punish them for far worse war crimes — that “The Grave of the Hundred Head” was wrong, and maybe once I’ve figured that out, I’ll work out whether what I think was actually done — and what Mark’s arguing might be ethically done — is okay.)

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