Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Tuesday, May 10, 2011

How Not To Argue Against Torture

This column by Dahlia Lithwick from a few days ago struck me as right on the merits, wrong on the manner of argument.  And for those who think tone and style don't matter, so long as the arguments are right, I must disagree.  Particularly with a subject as fraught as the justifiability of torture -- as seemingly dependent on who does what to whom, how recently one has suffered serious losses, how big the stakes appear to be -- the style of argument makes a big difference.

As I said, I agree on the merits with Lithwick (mirabile dictu).  Torture is wrong, whether it leads to useful information or not.  I also agree with the very different point, further down the page, that correlation does not necessarily imply causation.  That is a worthwhile and important contribution, but it is an empirical point that requires -- not Lithwick's rhetorical splashing about -- but greater capacity to test the effectiveness of various techniques for eliciting information.  As it stands now, there is a 'tu quoque' quality to the argument -- we don't know for sure that torture elicits reliable information, and we don't know for sure that it doesn't.

Having said that, I disagree almost entirely with the rest of the tone.  First there is the languid, supercilious dismissiveness of others' views ("Do we have to have another national debate about torture?  Really do we have to?"), as well as the characterization of anything which does not match up with the view advanced as "stupid" and "self-serving propaganda."  "A bunch of Bush officials" are cast down for obloquy -- sui generis moral reprobates.  But in reality, the debate endures because it is an enduring question.  It would be a mistake to assume that with changed political circumstances necessarily come changed moral views.  Indeed, there is a danger that when those whom one admires hold the reins of power, one is more susceptible of being blind to missteps.

Next, there is the puzzling statement that "the only reason we are having this discussion at all is because we have tortured people."  But of course -- the only reason that we have discussions about nutrition is that people eat things.  The only reason that we have discussions about the justification of punishment is that people commit crimes.  The only reason that we have debates about self-defense is that people sometimes attack one another.  If a matter is of human concern, it is often proper to have discussions about it.  Torture is no exception. 

Third, there is the proclamation that the discussion of torture attending the killing of Osama Bin Laden is a "national embarrassment" because we are not debating the effectiveness of other intelligence-gathering mechanisms.  I do not understand why that should be embarrassing.  I don't feel embarrassed.  Other intelligence-gathering mechanisms may or may not carry the same moral freight as the torture issue.  If they do not, then it is no surprise -- and certainly nothing to be embarrassed about -- that we are not talking about them in public fora. 

Those that believe torture may be justified, writes Lithwick, "are now using half-facts and unverifiable assertions to ask another question: Does torture work? Unsurprisingly, they claim that it does. That's nice. Let's ignore them."  I could not disagree more.  Indeed, I take it that Lithwick herself, in writing this column, is not ignoring them.  She is engaging with them.  But the style of engagement leaves much, in this reader's view, to be desired.


DeGirolami, Marc | Permalink

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Although she doesn't mention it, I think some of Ms. Lithwick's frustration (and mine) on this issue comes from the GOP Presidential debate of last week. In that debate, the candidates were asked if they supported waterboarding and one of the candidates, Mr. Santorum, answered in the affirmative. We all know that Mr. Santorum is a Catholic and makes no bones about his faith when it comes his views on many issues. However, one should not (unfortunately) expect him to be corrected by either his bishop or the USCCB for expressing this viewpoint that is obviously in contradiction to the Cathecism.

Posted by: Edward Dougherty | May 10, 2011 11:41:29 AM

Torture is centainly a very hardy weed. On that basis, it seems almost inescapable that it works. As for whether it is necessarily wrong it not is not se easy to discern.

At what point does behavior modification become torture? We certainly agree, I think, that many methods of behavior modification work. We know how to discourage people from misbehaving, either by using the power of example (deterence) or the power of direct force (incapacitation or prevention). We know how to make other peoples' lives miserable in hundreds of ways. These ways work. Which ones are indefensible?

This is a vitally important question. Patrols carried on the battlefield yield essential information abuout the disposition of enemy forces, which which the army would be blind, and lost most of the time. Some of the information is obtained by observing, but most be far is extracted from unfortunate enemy soliers at great cost to them. Does the need for tactical information make war indefensible?

On the other hand, aren't long prison terms tantamount to torture? If torture means anything disagreeable, we are going to have to rethink a lot of laws and methods. So, what is torture and why, or when, is it wrong?

Posted by: Joel Clarke Gibbons | May 10, 2011 1:12:33 PM

I would argue that torture does not work due to the fact that it will often give you answers that are untrue due to the need for the torture to stop. It certainly did not lead to the whereabouts of Mr. Bin Laden.

Since this is a Catholic legal blog, I can point out that the Cathecism says that torture is never acceptable as it violates the dignity of the person who is being held. This is why Mr. Santorum's support of waterboarding is unacceptable from a Catholic perspective and discouraging that so little in the church are not condemming him on it.

You ask what is considered torture and what is indefensible. Anything that inflicts mental and physical anguish on a prisoner is wrong. We are the same nation that for years was regarded for it's humane treatment of prisoners of war. Hans Frank (Nazi Germany's governor of Poland during WWII) thanked the Allies for his kind treatment during his captivity before his 1946 execution. If we could treat the Nazis humanely, then I don't see why we can't do the same with terror suspects. And it makes me angry that so many in our government don't feel the same way.

Posted by: Edward Dougherty | May 10, 2011 1:28:31 PM

There was only one guy at the GOP debate who was willing to argue against the use of torture, and he's a decent Protestant fellow who has been largely maligned by the GOP and others as a kook.

As for Ms. Lithwick's admonition to "ignore them" with the arguments about effectiveness of torture, I can see where she is coming from. I think it's dangerous to go down that road in arguing effectiveness of torture due to the incalculable probabilities and contingencies associated with estimating such effectiveness. If one goes down that road, one will fall into a trap where the apparent winner of the argument will convince others based on fear, usually through means of a false dilemma.

I think Lithwick is right in pointing out that a number of torture proponents (including Catholics like Santorum and Theissen) have used half-facts to set up false dilemmas. And it is in this sense, perhaps Lithwick is thinking with a similar mind to GEM Anscombe in Modern Moral Philosphy where she lamented that she did "not want to argue with" those who set up false dilemmas since they "show a corrupt mind."

Posted by: CK | May 10, 2011 2:18:41 PM

I found nothing whatsoever wrong with Lithwick's article, including the tone.

Posted by: Patrick S. O'Donnell | May 11, 2011 2:14:43 AM

Mr Dougherty,

It is hard to know if I am agreeing or disagreeing with you since you haven't told me what torture is. Herr Franck was executed. Was he happy about that?Thank goodness he was not tortured?

First of all, the definition of torture is not hard to find. Torture if discretionary punishment. Punishnent for crimes has two important features: 1. sanctions are spelled out and fixed in advance, and 2. they are regulated with reference to the crime. Sanctions are not necessarily less disagreeable than torture. The Catholic Church and I arre united in our support for capital punishment when circumstances demand it.

Torture is not punishmemt. When we are on patrol and happen on some poor devil who falls into our clutches, we don't case about his morals. We just need the tactical intelligence. By the way, rest assured that we will get it. Torture does work.

Posted by: Joel Clarke Gibbons | May 11, 2011 9:39:26 AM

Torture is no greater attack on the dignity of the person that lawful punishment us. I personally can't imagine a condition more undignified than life in a high security penitentiary. The difference is one of justice. Punishment is an exerecise in justice, but discretionary abuse never is.

Posted by: Joel Clarke Gibbons | May 11, 2011 9:44:41 AM

Mr. Gibbons,

I thought I did answer your question on what constitues torture but I'll try it again. Any method to elicit information from a prisoner that inflicts a mental or physical hardship on a prisoner is torture. This would include sleep depravation, food depravation, undue physical exercise and waterboarding.

My point about Hans Frank was that if any prisoners ever deserved harsh treatment, it was the Nazis. And yet, at the end of WWII and during the surrender of Berlin, we had Axis soldiers who were rushing to surrender to us rather than the Soviets because they knew we would treat them in a just manner. And I want that country back.

Torture is not justified by Catholic Social Teaching. Read the Cathecism on this issue-it is disallowed as an attack on the dignity of the prisoner. Someone such as yourself or former Senator Santorum who advocates its use is going against CST as much as someone who advocates fuinding for abortions.

Torture most assuredly does not work-the intelligence that led us to Mr. Bin Laden was after torture methods had been used. Torture will more likely give you information you do not want-I remember Jesse Ventura on this point (himself a former Navy seal) who once said that if you gave him a waterboard and one hour with Dick Cheney, he'd have him saying he was with Charles Manson the night he killed Sharon Tate. That's how torture works-you get wrong information.

No, there's nothing dignified about incarceration. But people can at least be treated in a decent manner while incarcerated. To compare incaceration (in which that decent treatment takes place) to a torture regime is very much off base.

Posted by: Edward Dougherty | May 11, 2011 10:27:59 AM

While I can't offer a complete definition of torture, US jurisprudence has determined waterboarding to be torture. See the case of Lt. Chase Nielsen, for which a military judge determined that Lt. Nielsen was tortured by means of waterboarding by Japanese interregators trying to extract information. In addition, the recent Army Field Manual recognizes waterboarding as such, which Marc Thiessen maligns as "ineffective." (Note that the Army, unlike the CIA, Thiessen's fetish, is an honor based institution).

Posted by: CK | May 11, 2011 4:31:35 PM

Surely you don't want to condone torture that is not expected or intended to yield information.

All punitive actions attack the dignity of the person. So all punishment is forbidden?

I'm no big fan of torture, be we have to get straight what is torture and why we don't like it.

We don't like it because it is in principal unjust. There are exceptions. The enemy patrols that we ambushed were trying to kill us and defeat our forces. That's not very nice (I mention this since niceness seems to be high on your scale of values.)

The Criterion of nastiness that the Vatican promotes is simply unsustainable Except in the following sense: suppose we define torture to consist of taking pleasure from the misery applied to thers who are under our control. I certainly agree that is evil, and it helps us to discern what is torture.

Since the evil is a function of the dehumanzing glee the torturer experiences, torture is wrong when it is dehumanizing. This deals with the personal experience of torture, which is what the Church is concerned about. It has however little to say about the objective goals of it. They are not condemned per se.

Posted by: Joel Clarke Gibbons | May 11, 2011 5:52:32 PM

i agree that the author employed rather rhetoric than systematic approach in her article
but is it an excuse to skew her point?
she did not attempt to prove that torture is wrong (if somebody doesn't know, doesn't feel that it's wrong, no words can help)
she wanted to show that it's ineffective and thus unjustified and unacceptable
does anybody know a single conclusive study "if torture works or not"?
does anybody here approve of torture under any circumstances?

Posted by: elena | May 11, 2011 8:00:41 PM

Elena, with all due respect, I'm afraid I don't see, and you have not identified, those portions of my post which "skew[ed] her point."

If her point was, as you say, that torture "is ineffective and thus unjustified and unaccceptable," then it will not do, in my view, to cite the absence of a "conclusive study" that "torture works."

If her point was, as you say, that torture should not be acceptable "under any circumstances," then that should have comprised the substance of the article, as it did not.

And if, as you say, "no words can help," and the arguments against torture are so self-evident that we need not discuss them, then it ought to be a curiosity that the torture debates continue to be a subject of public discussion, most especially for Lithwick herself.

Posted by: Marc DeGirolami | May 11, 2011 9:00:27 PM

Well said, Marc. I hate to beat Aquinas to death, but we realy must decide first what torture us. It will then emerge which applications are evil and which are necessary evils.

Posted by: Joel Clarke Gibbons | May 11, 2011 11:55:50 PM

Mr. Gibbons,

I'm going to assume in your first sentence that you meant to say that I don't mean to condemn torture that yielded useful information. if that's what you meant, then I certainly do mean to condemn it and in the strongest possible terms. I would use the terms expressed in the Cathecism about how torture is a violation of human diginity. I would also advise you that one need not examine the dignity of all punishment in order to come to the conclusion that torture is wrong. I would also argue with your premise that torture yields useful information because our experiences during the so called War on Terror reveals that it does not.

The fact that I have niceness high on my set of values does not mean that I don't recognize the danger that those in Al Queda pose to us. My point is that the use of torture on these folks is morally wrong, counter productive in the information it provides and it can be used against us in the information portion of the War on Terror in the Middle East. If being nice means that I don't approve of waterboarding, food depravation, sleep depravation, extreme physical exercise (by the way, there's you definition of what torture consists of, among other things) then I plead guilty.

The Vatican doesn't condemn the objective goals of torture? So what? That doesn't take away from the fact that advocating for torture (see Senator Santorum) is going directly against CST. I would also think that the Vatican would also be highly dubious about the objective goals, as I am, as well.

Posted by: Edward Dougherty | May 12, 2011 10:07:01 AM