There are extreme situations when we grant authorities the discretion to perform acts that would not be permitted under circumstances where more deliberation or other alternatives are possible. For example, if a person is in imminent danger of being killed by a third party, a policeman can use lethal force to protect the threatened person. We would never allow police use of lethal force as summary punishment. However, we have collectively recognized that it is impossible and morally irresponsible to formulate absolutes like “lethal force will never be used.” It is possible to encounter difficult situations when it is necessary to opt between the lesser of two evils. We have consequently developed a whole jurisprudence about when lethal force can and should be applied. Generally, the balanced is tipped toward the protection of innocent life.
Charles Krauthammer has written a thoughtful piece in the Weekly Standard, “The Truth about Torture,” examining the circumstances under which torture might not only be morally permissible but a positive duty. The classic extreme case is when a captured terrorist knows the location of a nuclear weapon about to explode and kill many thousands of people. Is torture permissible to extract the information necessary to prevent this catastrophe? Krauthammer’s conclusion is direct: “Now, on most issues regarding torture, I confess tentativeness and uncertainty. But on this issue, there can be no uncertainty: Not only is it permissible to hang this miscreant by his thumbs. It is a moral duty.”
This case is certainly extreme, but this extreme educes an important principle. If there are cases when torture is ethically required, then morally serious people in government ought to establish guidelines for its appropriate use.
Senator John McCain’s bill prohibiting “cruel, inhuman, or degrading” interrogations by persons acting on behalf of the US government was passed by an overwhelming margin in the Senate. The Bush Administration was willing to accept categorical restrictions for the US military. Indeed, the limitations are already part of the Army Field Manual. However, the Administration did not want to establish an absolute prohibition for intelligence agencies.
If there are exigencies when torture is required, not delineating conditions for appropriate use could lead to two negative outcomes. First, the restrictions may tie the hands of officials when torture might be necessary. Or, torture is driven so deep underground that it is practiced without regulation and it becomes more likely to descend from a search for necessary information into unsanctioned punishment and revenge.
Krauthammer distinguishes between three types of detainees. The first are members of combatant militaries that are captured. These people ought to be treated with the utmost respect and deference. The Geneva Convention establishes conditions for treatment of these legal combatants less to protect detainees, then to protect civilians. In exchange for not targeting civilians and conducting operations in accord with the rules of war, military prisoners of war are detained only for the purpose of keeping detainees from the battle field. Detainees are held to keep them from battle, not for punishment.
The second group is composed of captured terrorists who have violated the rules of war but lack any especially useful information. By virtue of their violation of the rules of war, they have not earned any humane treatment. We treat them humanely and make sure they are reasonably comfortable, because we do not wish to pay the price of the emotional and moral damage of doing otherwise.
The third group consists of terrorists that have information that could save lives. This information could be of the immediate variety, where a terrorist knows of a particular bomb about to go off in a particular place. The second type of terrorist would be a very high level operative who has wide-range knowledge about future operations. Krauthammer argues that more aggressive interrogation is justified in such cases. The level of aggressiveness should be proportional to the immediacy and size of the future danger.
The use of torture not only dehumanizes the subject of the torture, but also the persons inflicting the pain. As a matter of maintaining the moral and warrior spirit of the military, military people ought not to be called upon to use aggressive interrogation techniques. These ought to applied by a small, well-trained cadre of experts and only under the supervision of independent quasi-judicial supervision.
Krauthammer may not have struck upon the proper balance between the sin of inhuman treatment against the sin of allowing innocents to die when it is in our power to stop it, but he has at least opened the debate in a constructive wave. The weighing of competing values is difficult and it can be too easy to hide mere retribution and vengeance behind a veil of civilian protection. The danger lies in becoming like the type of people we are seeking to protect ourselves from.
The categorical restrictions passed by the Senate may be a consequence of the concern that though torture may be necessary, an absolute prohibition prevents its misuse. This is a morally serious position. However, this very reasonable concern must be weighed against the destruction of innocent life. If the potential loss is grave, we may not be able to enjoy the luxury of categorical prohibitions.
The Administration has been negligent in not proffering a set of guidelines for reasonable and appropriate use of coercive interrogation techniques. At the same time, the moral posturing by a lop-sided vote in the Senate has shrouded clear thinking in a squid-like ink of moral vanity.