This is an argument very much worth having. Charles Krauthammer writes in The Weekly Standard:
But if that is the case, then McCain embraces the same exceptions I do, but prefers to pretend he does not. If that is the case, then his much-touted and endlessly repeated absolutism on inhumane treatment is merely for show. If that is the case, then the moral preening and the phony arguments can stop now, and we can all agree that in this real world of astonishingly murderous enemies, in . . . very circumscribed circumstances, we must all be prepared to torture. Having established that, we can then begin to work together to codify rules of interrogation for the two very unpleasant but very real cases in which we are morally permitted—indeed morally compelled—to do terrible things.
Krauthammer is writing against Senator John McCain’s proposal for banning all forms of “cruel, inhuman, or degrading” treatment of prisoners, a proposal which has overwhelming support in Congress but is opposed by the Bush administration. McCain has said that in extreme circumstances—such as the familiar “ticking time bomb” scenario—authorities will do what they have to do to extract information. Krauthammer says that means McCain’s proposed rule is “merely for show,” and comes close to saying that its supporters are guilty of hypocrisy.
I am not at all sure. Establishing a principle is not “merely for show.” Recognizing, clearly but sotto voce, that there will sometimes be exceptions to the principle is not hypocrisy. Those who, under the most extreme circumstances, violate the rule must be held strictly accountable to higher authority. Here the venerable maxim applies, abusus non tollit usus—the abuse does not abolish the use.
We are not talking here about the reckless indulgence of cruelty and sadism exhibited in, for instance, the much-publicized Abu Ghraib scandal. We are speaking, rather, of extraordinary circumstances in which senior officials, acting under perceived necessity, decide there is no moral alternative to making an exception to the rules, and accept responsibility for their decision. Please note that, in saying this, one does not condone the decision. It is simply a recognition that in the real world such decisions will be made.
This understanding of the matter offends the legal, and legalistic, mind of Alan Dershowitz of Harvard who has suggested that officials should have to get a court order in order to torture a prisoner. This, like Krauthammer’s proposal and the apparent position of the administration, would be a giant step toward “normalizing” torture and other forms of cruel and inhumane treatment. In short order, it would likely result not only in the very widespread abuse of the rule but in the effective abolition of the rule.
Krauthammer’s moral logic is that it is sometimes necessary to do evil in order that good may result. Here he is in the company of Michael Walzer who has argued that effective leaders must be prepared to have “dirty hands.” An alternative argument is that coercion, even brutal coercion, may be morally justified in extraordinary circumstances in order to save thousands of innocent lives. In that event, it is further argued, the use of such coercion is not evil but is the moral course of action.
Whether, in fact, the circumstances justified the action must be subject to the rigid scrutiny of higher authority. There will likely be cover-ups, rationalizations, and other forms of duplicity. Where possible, they must be exposed, in the full awareness that in this connection, as in all connections, we are dealing with fallen humanity. As with all rules, the aim is to make sure that the exception to the rule does not become the rule.
McCain is right: The United States should be on record as banning “cruel, inhuman, or degrading” treatment of prisoners. The meaning of each of those terms will inevitably be disputed, as will the case-by-case application of the principle. But again, abusus non tollit usus.
The late Richard John Neuhaus was the founding editor-in-chief of First Things. This essay originally appeared at the First Things blog, On the Square. It was reprinted with the permission of the author.
January 7th, 2010 | 4:34 pm | #1
The implicit argument here seems to be based on a conflated definition of “prisoner” with the stated fear that allowing for specific case criteria to torture someone would open the flood gates for authorities to torture every prisoner.
But Krauthammer’s essay first defined his terms. He was not talking about POWs or common law criminals. He was not talking about people picked up for J-walking or disorderly conduct. He was talking about the specific class of people known by the term “terrorist” which he further defined as a non-state agent, non uniformed, hiding behind civilians, for the purpose of intentionally killing, maiming and terrorizing civilians.
According to this definition the Taliban might not be terrorists if they restrict their assaults on uniformed personnel and not civilians.
He also mentions a sub-set of terrorists who are picked up not after the fact, but ‘before’ a strike that is deemed imminent.
His example was to hang someone from their thumbs. Specifically this is to ‘rack’ someone which, since it provokes permanent injury, would fall under the classic definition of torture – which water boarding does not.
But so far as anyone knows, the Bush administration did not permanently injure terror detainees. They instead waterboarded them, roughed them up and engaged in psych-ops to do disorient and deflate them as to make ‘talking’ seem like a viable option for them.
Seems to me then, that unless we keep the debate to exact definitions and exact descriptions of who we’re talking about, what methods exactly we mean by “enhanced techniques” and the data about whether these techniques actually ‘work’ in actionable information….the symposium is pointless.
“Cruel, inhumane and degrading” actions could mean anything. Literally – if the definition is subjective.
Similarly, if we refuse to define ‘terrorist’ any person seized by the state could be so described.
There’s the stubborn refusal to accept the classic definition of torture (permanent damage) and instead move it to include subjective states of affairs like emotional harm, fear, and less than permanent physical damage.
Finally, there’s a boat load of theological and ethical definitions also vital to the debate.
The first is the exact translation of the 5th commandment. In modern English it’s commonly translated as “thou shalt not kill”. However, the original is “thou shalt not murder” – a big difference.
Accidental homicide is not murder. Killing an unjust aggressor is not murder. Soldiers at war and police stopping criminals are not classified as morally equivalents of murderers. But civilians, soldiers, and police do on occasion have to resort to deadly force to stop unjust aggressors.
So if a lay person who is responsible for the common good and the defense of innocents may deal a deadly blow to an unjust aggressor who will not cease and desist….. on what principle do we rest our case that this person may not otherwise cause pain or discomfort to an unjust aggressor as a means of stopping him from further crimes?
By the expanded definition of torture, tazering someone is now unethical. Holding him at gunpoint while the police are called….could also fit the redefinted definition of inhumane treatment.
But death is surely worse than permanent physical harm, and permanent harm is worse than temporary harm. If then, it is licit for authorities to kill unjust aggressors, why is it illicit for them to inflict physical harm on them in order to protect the innocent?
I can see the problem if the harm is inflicted out of hatred or retribution and serves no deterrent or actionable purpose other than simply to harm.
Just as it’s murder to kill someone who is NOT a threat, such as the soldier who has laid down his weapon and is surrendering, or the convict who poses no on going threat to society at large, or to the low-level terrorist who doesn’t know anything about tomorrow’s attack.
But both the Bible and Christian historical praxis is replete with examples of good people being required to use deadly force to stop unjust aggressors. It’s also replete with lessons of mercy and conversion…. as well as the use of ‘terror’ in the form of theophanies, and the threat of future punishment to turn people from certain evil ways.
So explain to me again this claim that Christians who are responsible for the common good or defense of innocents may not harm (*physically, mentally, spiritually) any unjust aggressor, for any purpose.
It sounds nice. But I don’t think it’s scriptural, historical, practical and therefore…ethical.
It places unjust aggressors on the same moral footing as innocent people in the idea that somehow if we treat the unjust as the just this will save the just from injustice. That’s simply a ridiculous argument.
It’s like the claim that free speech must allow for Pornography so that political speech is protected….and yet with McCain Finegold we saw the RESTRICTION of political speech while Pornography expands with less and less control.
If you give the rights and priviledges and “dignity” due innocents to the guilty and more than the guilty, to active unjust threats…. you actually dimwittedly undermine all dignity everywhere.