Robert Vischer on Torture

Self-preservation is not the ultimate value underlying Christian ethics, and recognition of that fact must underlie any attempt to articulate a Christian response to torture. The specter of terrorists holding information that could save thousands of lives does not alter or eviscerate the Gospel’s call to transform our world through an abiding and uncompromising ethic of love. Foremost in any framework purporting to implement this ethic is a prohibition against using our fellow humans instrumentally, as a convenient means to our chosen ends, no matter how noble.

This principle is reflected in the Catholic Church’s inclusion of torture in the category of “intrinsically evil acts.” Torture, as explained by Pope John Paul II, is by its very nature “incapable of being ordered to God” because it “radically contradicts the good of the person made in [God’s] image.” Pope Paul VI cautioned that “it is never lawful, even for the gravest reasons, to do evil that good may come of it.”

We cannot, in other words, “intend directly something which of its very nature contradicts the moral order, and which must therefore be judged unworthy of man, even though the intention is to protect or promote the welfare of an individual, of a family or of society in general.” This uncompromising stand against torture is necessary not only for the well-being of the victim whose body is used as a means to achieving a greater good, but also out of concern for the perpetrators, for as the Second Vatican Council recognized, such practices “contaminate those who inflict them more than those who suffer injustice, and they are a negation of the honour due to the Creator.”

The notion of torture as intrinsically evil is utterly foreign to those who defend the practice as a prudent public-policy measure. Charles Krauthammer agrees that, in most instances, torture is bad. But not always:

However rare the cases, there are circumstances in which, by any rational moral calculus, torture not only would be permissible but would be required (to acquire life-saving information). And once you’ve established the principle, to paraphrase George Bernard Shaw, all that’s left to haggle about is the price.

Krauthammer is correct in the sense that once we back away from the premise that torture is unacceptable per se, everything is negotiable. Witness the infamous August 2002 “torture memo” in which the Office of Legal Counsel’s John Yoo provided President Bush with considerable discretion in allowing interrogation practices that would generally be construed as torture under the prevailing understanding of the term. One argument raised in the memo was that such practices were necessary, despite the harm caused to the subject being questioned, given the possible harms averted. Yoo wrote:

Clearly, any harm that might occur during an interrogation would pale to insignificance compared to the harm avoided by preventing such an attack, which could take hundreds or thousands of lives.

And in that single statement, we have the essence of why Christians cannot condone torture, no matter the justifications offered. An ethic grounded in human dignity can never hold that the purposeful infliction of pain on a person is insignificant, nor that its significance can be minimized as though concerns over human life and dignity are mere variables in a cost-benefit analysis. The Catholic Church’s teaching addresses the temptation to relativize human suffering by placing torture in the sphere of categorical prohibition, beyond the reach of well-meaning pragmatists.

But not all Christian ethical traditions fit comfortably within this sort of deontological framework. The “Christian realism” embodied in the work of Reinhold Niebuhr provides perhaps the sharpest Christian contrast to the Catholic Church’s mode of ethical inquiry, as Niebuhr gives short shrift to fixed principles, opting instead to grapple with fallen humankind at the ground level, letting the exigencies of geopolitical developments define the ethical course.

Illustrative of this approach is Niebuhr’s sharp criticism of Christian pacifists in World War II. He asserted that the blanket rejection of violence in the modern world is grounded in a dismissal of “the Christian doctrine of original sin as an outmoded bit of pessimism,” and a reinterpretation of “the cross so that it is made to stand for the absurd idea that perfect love is guaranteed a simple victory over the world.” Such views are heretical not only when viewed through the lens of settled doctrine, but also when viewed through the lens of human history, as Niebuhr encouraged Christians to recognize a “lack of conformity to the facts of experience as a criterion of heresy.”

In the case of World War II pacifism, he pointed out that “[i]f we believe that if Britain had only been fortunate enough to have produced 30 percent instead of 2 percent of conscientious objectors to military service, Hitler’s heart would have been softened and he would have not dared to attack Poland, we hold a faith which no historic reality justifies.” Christian pacifists, in this regard, “make Christ into the symbol of their faith in man.”

But Niebuhr’s criticism of the pacifists should not be read as a denial of the absolute and uncompromising nature of Christ’s law of love; rather, it reflects his acknowledgment of man’s fallen nature: “Every law and every standard which falls short of the law of love embodies contingent factors and makes concessions to the fact that sinful man must achieve tentative harmonies of life with life which are less than the best.” In a world in which we are called to reveal Christ’s love, violence resistance may sometimes be preferable to unchecked power, whether that of Hitler or al Qaeda, and even when violence is unnecessary, Niebuhr encourages us to embrace a “social structure in which power has been made responsible.”

So while Niebuhr’s realism may avoid bright-line prohibitions, its emphasis on sin offers another Christian foundation for opposing the state’s validation of torture as a means of pursuing the greater good. Human experience must inform the Christian’s ethical course, and the track record of torture is not a good one, either in terms of its efficacy or the ability of its purveyors to limit its application.

This reflects a broader point that torture as a government practice cannot be evaluated in the abstract through idealized hypotheticals; torture as a government practice flows from torture as a government policy, and that requires granting power to fallen individuals to decide when the instrumental use of human life is warranted. It is a power to inflict pain not as an unavoidable but unintended consequence of resistance to evil (as in the proper conduct of war or incarceration by the state), but as the deliberately cultivated path to achieve a certain outcome.

Under a Christian realist approach, such power is objectionable not so much because it is wielded, but because of who wields it—human beings steeped in their own sin and self-aggrandizement. If torture is justified when we are certain that an individual knows the location of a nuclear bomb threatening millions, what if we only suspect that he might know the location of an individual who knows the bomb’s location? Or what if it is a dirty bomb threatening hundreds, or dozens? Or what if the information pertains to the overthrow of the government, or the shutdown of a vital industry? Whether we can draw these lines to our satisfaction in academic discourse is irrelevant to the realist, for in practice the decision-maker cannot rise above our sin-saturated world.

The understandable reluctance to cede torture authority to a fellow human—however circumscribed that authority might appear as stated policy—may lead even the Christian realist to embrace a fixed rule prohibiting torture. Because categorical judgments tend to disregard the moral nuance that defines a fallen world, Niebuhr resisted bright-line rules. But his intellectual descendents within Christian realism have recognized that human discretion fills the void in rules’ absence, and human sinfulness makes that discretion problematic if left unfettered. Even though the realist concludes that rules may not be capable of encompassing the best moral course in a particular case, the realist knows that individuals cannot be trusted to identify those cases accurately. My colleague Tom Berg has nicely captured the realist case for rules in a recent article:

If human beings are stubbornly partial in their moral reasoning, this strongly suggests that their decisionmaking should be constrained by nondiscretionary rules, rather than liberated for quite free-floating assessments of how general principles apply to each unique set of circumstances.

Niebuhr and his progeny thus offer no easy compromise in the torture debate. A Christian’s steadfast opposition to the blanket legitimization of torture cannot be allowed to melt into ambivalence toward a case-by-case implementation of torture, as though the existence of the “ticking bomb” scenario can blot out the sinfulness of those charged with searching out that scenario and resolving it within idealized boundaries.

It bears noting that a Christian approaching torture from the premises of natural law will have a markedly different journey than one coming from the realist perspective. But at least on this issue, they arrive at common ground. Whether we lean toward the natural law tradition’s deontological framework or the realist tradition’s consequentialist emphasis, the case against torture is formidable. Whatever our convictions as to torture’s purported necessity or connection to the public good, the Gospel’s call to honor human dignity while recognizing human sinfulness compels Christians to resist the temptation to embrace the utilitarian bent toward using another human life as an instrument of self-preservation.

Robert Vischer is an Associate Professor at the University of St. Thomas School of Law in Minneapolis, MN and is a regular contributor to Mirror of Justice, a weblog devoted to the development of Catholic legal theory.