Kenneth Magnuson on Torture

In his Weekly Standard article, “The Truth about Torture” (December 5, 2005), Charles Krauthammer responds to arguments made by Senator John McCain and codified in the McCain amendment, which would prohibit any “cruel, inhuman, or degrading treatment” of any prisoner in United States custody.

Senator McCain proposes a total ban on the use of torture, arguing that it is ineffective and, more importantly, immoral and contrary to the ideals upon which our democracy is founded. It weakens America’s standing in the eyes of the world, and takes a heavy toll in the war of ideas that is central to the struggle against terrorism. According to a Newsweek article (November 21, 2005), he acknowledges that there may be extreme situations (the “ticking time bomb”) in which the ban would have to be violated in order to save innocent lives. Nevertheless, only a total ban will prevent the horrors that accompany any policy that would permit torture.

Krauthammer directly challenges a total ban on torture. He argues that in some cases the use of torture is not only permissible, it is morally mandated. Ironically, while Krauthammer contests the conclusion that torture should be categorically banned, he accepts key arguments used to support that conclusion. He claims that “moral honesty” demands that we acknowledge that certain measures that we must use to get information “are by definition inhumane” (emphasis added). The use of torture, he says, troubles our conscience because “there is no denying the monstrous evil that is any form of torture” (emphasis added). Further, he makes the sobering statement that “there is no denying how corrupting it can be to the individuals and society that practice it.”

Krauthammer cannot be accused of glossing over the issue. Despite such statements, he remains convinced that the use of torture is demanded in some cases. Indeed, he charges that a complete ban on torture is “a deeply immoral betrayal” of those whose lives could be saved. He describes such idealism as “saintly” and “deserving of a certain respect,” and yet as “deeply reproachable,” and “a case of moral abdication.” Whether he can justify both his praise and criticism of the idealist is not entirely clear, but such tension highlights the complex and disturbing world of war, terror, and the debate about torture.

How is Krauthammer able to defend a practice that he believes to be a monstrous evil? He offers several lines of justification in the course of his essay. First, he argues that the use of torture is permitted in the case of terrorists because they do not engage by the rules of war—chiefly because they target innocent civilians—so they are not protected by the rules of war.

Second, Krauthammer asserts that in the “ticking time bomb” scenario, if there is the “slightest belief” that life-saving information can be obtained, we have a moral duty to use torture if necessary to elicit the information. In that case, torture is not only defensible but also required “by any rational moral calculus.” Thus, however rare the circumstances, the true debate concerns not if but when torture should be allowed, and what form of torture could be acceptable. In such cases, he claims, the use of torture is the lesser of two evils. We have to choose between “the undeniable inhumanity of torture versus the abdication of the duty to protect the victims of a potentially preventable mass murder.”

Finally, he asserts that the primary responsibility of the government is to protect its citizens.

Krauthammer recognizes that if torture is ever permitted, it introduces the potential of a slippery slope. He is not deterred, but rather he offers safeguards to prevent abuse. One is to limit the type of case in which torture could be used. Krauthammer would ban all forms of “torture, coercive interrogation, and inhuman treatment” except in two situations, each of which would call for a different response. The first is “the ticking time bomb,” in which he would not rule out anything that is “rationally related” to extracting the necessary information. The second is “the slower-fuse high-level terrorist” (one who has information that would prevent future deaths), in which the level of interrogation, coercion or torture used “would be proportional to the need and value of the information.”

A second set of safeguards proposed by Krauthammer deal with procedural issues. Only “highly specialized agents who are experts and experienced in interrogation” would be authorized to use torture. Further, to use such techniques, they would be required to obtain written permission from “the highest political authorities in the country (cabinet level)” or from a specially formed judicial body. If there were no time to obtain written permission, authorized interrogators could act on their own, but they would be subject to immediate review.

Thus, Krauthammer is concerned about the consequences of permitting the use of torture, but he prefers to set stringent regulations in place, rather than banning it altogether with the implicit understanding that it may need to be used illegally in rare circumstances. As he put it, “McCain embraces the same exceptions I do, but prefers to pretend he does not.”

There are a number of strengths to Krauthammer’s line of argument. It should be reiterated that his defense of torture is limited to very specific, rare, and “stringent” types of situation. As such, his case is measured, proportionate, and provides for accountability. Despite Senator McCain’s concerns and intentions, it is not clear to me that his proposal is less subject to abuse than Krauthammer’s. Although it has the virtue of insisting on the highest of standards, he concedes the necessity to “compromise” those standards in rare cases. If the end result is the same, at least Krauthammer’s position opens the issue to debate and some measure of accountability, and for that reason it may be preferable. If it is always illegal, there is little chance that the responsible agents would report the use of torture.

A second strength of his case relates to our moral intuition that in the “ticking time bomb” scenario, torture could be justified to save the lives of many people. Krauthammer simply is stating and defending what many people, including McCain, believe to be true.

On the other hand, there are some things about his line of argument that are inadequate. One problem is that his major moral claims are simply asserted or assumed, but not defended. After presenting the case of the “ticking time bomb,” he asserts the heart of his position: “However rare the cases, there are circumstances in which, by any rational moral calculus [emphasis added], torture not only would be permissible but would be required (to acquire life-saving information). And once you’ve established the principle [emphasis added] . . . the argument is not whether torture is ever permissible, but when—i.e., under what obviously stringent circumstances: how big, how imminent, how preventable the ticking time bomb.”

The problem is that the principle has not been established, only asserted. He has simply presented as self-evident that in the case of the “ticking time bomb” we must be able to use torture to extract information necessary to save innocent lives. Any principle has at best been implied, and then only on the basis of moral intuition and a Utilitarian calculus.

Acting on moral intuition may be necessary at times. But normally, and certainly with stakes so high, it must be defended through moral arguments, for intuition easily fails us, or is reduced to Emotivism (where something is considered right or wrong based upon how we feel about it). Krauthammer’s defense of this intuition is deeply problematic because it is Utilitarian. The phrase he uses, “rational moral calculus,” is precisely the language of Utilitarianism. So is the way his argument flows: he weighs the torture of one terrorist (a “miscreant” who is entitled to no protections whatsoever) against the lives of innocent people who will be killed by a bomb. On a Utilitarian calculus, the duty is clear: “torture not only would be permissible but would be required.” The good outweighs the evil of torture.

By framing the issue in such a way, Krauthammer introduces problematic issues that accompany a Utilitarian account of morality: it becomes too easy to justify doing evil things in the name of something good. Krauthammer implies that we could torture even if it is unlikely that we will get the necessary information (if there is “the slightest belief” that it could save a million lives). It is not too difficult to imagine the possibility of concluding that if we can save a million lives by torturing the terrorist’s family, we must do that as well. It is the lesser of two evils.

The “lesser-evil” view may be appealing at first glance. Torture is a horrible thing, and yet it seems less evil than allowing the death of innocents that could be prevented. However, it is a deeply disturbing argument, and full of moral contradiction, for we cannot make a moral duty out of an evil. We cannot justify doing evil that good may come (cf. Romans 3.8). If his presupposition is true (torture is always a “monstrous evil”), then he cannot defend his conclusion (sometimes we have a duty to torture). If torture in every case is morally repugnant (because it is intrinsically evil), then it must be wrong. The case is closed, and we must never, ever, torture.

On the other hand, if it is true that torture may not always be wrong, then it must not always be morally repugnant or evil. The question is whether the proposition that torture may be acceptable in rare and extreme cases is defensible on other grounds. Here Krauthammer makes two points, which are not developed, that provide a hint at a solution.

One has to do with a comparison to capital punishment. Krauthammer refers to it as the “moral twin” of torture. He means to suggest that capital punishment is always evil, but in fact he supports a different point just as well. It is true that capital punishment, practiced indiscriminately, or with bias, is monstrous, inhumane, and evil. Yet if there is a case in which justice permits capital punishment, it is not an evil to carry out such an act. Could the same be true of aggressive interrogation, coercion, and even torture in the “ticking time bomb” scenario?

The other undeveloped premise has to do with the responsibility of government. He states that elected leaders are responsible “above all for the protection of their citizens.” In this, he touches upon a possible moral defense for a strictly limited use of torture. It must be said that the protection of its citizens does not justify immoral action on the part of any government. However, it may be possible to justify the use of some forms of torture in extreme circumstances in order to extract information that will allow a government to protect its citizens. This is not despite the fact that it is a “monstrous evil,” but because it is demanded by justice, and in such a case it is not necessarily an evil at all.

Augustine, one of the primary Christian formulators of the Just War tradition, develops this line of thinking to defend torture in some cases (see City of God, 19.6). This is significant, since many contemporary Just War advocates see torture as prohibited as an abuse of Just War principles. Augustine does not, for two reasons.

The first is that a judge (i.e., government official) may use torture without “any intention of doing harm.” For Augustine, then, torture is not intrinsically “harmful” (meaning a moral wrong, rather than physical harm). Against Krauthammer, he would not accept that every form of torture must always be considered a “monstrous evil.” The intention is critical in judging whether it is right. If torture can be justified, it will not be for the purposes of extracting a confession (which could easily be false, since the purpose may simply be to stop the pain) or for punishment. It could only be to elicit information to save lives (particularly in the ticking bomb scenario) from someone who is known to have information (and is therefore bears guilt in relation to the intended victims).

Second, Augustine defends the one authorized to use torture, in proper circumstances, because “human society claims him as a judge.” That is to say that torture is defended on the basis of the demands of justice. The judge is to serve the interests of the people, to protect them, and to expose and deal with evil in the name of justice. To fail to act to prevent evil would be to fail in the task to which the judge is appointed. To prevent wrongdoing and to hold wrongdoers to account are responsibilities of government as assigned by God (e.g., Romans 13). Though that obviously does not justify a general use of torture, it may justify it under stringent circumstances.

It is important to note that Augustine argues that the Church can never resort to the use of torture, e.g., to force a confession or root out heresy, as was shamefully done later in Church history. It is only the Governing authority that has such a right, and only in order to obtain justice and for the security of the nation. It is a tragic necessity (because evil has made it so), but a necessity nonetheless.

In a case where a suspect is held who is known to have information concerning the intended killing of innocent people, that person bears the guilt of the offense that is planned. It may therefore be argued that it is just to elicit information that will save lives by means that are necessary to obtain the information, provided that only what is necessary, and not more, is done.

Having made a possible case for the moral justification of some forms of torture in very limited circumstances, a few additional comments are in order.

First, there is a need for continued debate on this matter, testing each other’s arguments and assertions, and attending carefully to moral reflection and deliberation.

Second, even if it is possible to defend torture theoretically, it is far from certain that it can be used justly in practice. Whether it could be contained to the few cases in which it may be justifiable; whether an adequate system of accountability could be set in place to prevent abuses; whether the interrogator is capable of extracting the information with the least coercion necessary (without turning quickly to torture because it is deemed to be justified); and whether it is possible to know for certain that the suspect indeed has relevant information; these are but a few concerns.

Third, there is a need for careful definitions and distinctions concerning, for example, how we differentiate between interrogation, coercion, and torture. Further, there is a need to delineate clearly what methods of coercion, and possibly torture, would be acceptable, and what would be considered out of bounds. No one should have a blank check to act towards another human being in any way that they deem necessary.

Fourth, there are some troubling issues that require additional attention. It is not entirely convincing to me that it is possible to prohibit the use of torture in a conventional war while defending it in the “war on terror.” It is true that terrorists do not fit standard categories of war for which the Geneva Conventions encoded protections for prisoners of war. However, the moral foundations of those conventions are derived from the fact that even the enemy is a human being who must be treated humanely. Krauthammer has not convinced me that a captured terrorist is “entitled to no protections whatsoever.” Further, in conventional war, there are situations in which a prisoner may have information that could save thousands of lives. That prisoner may also have acted treacherously toward us. Why do we not permit torture to extract life-saving information from him? Is it not because we are bound by a code of honor and rules of justice, even when our enemies fail to abide by them? If Just War principles have prohibited torture, we must not quickly abandon such wisdom in the name of expediency.

We ought to be troubled to find ourselves in a debate about whether it is ever justifiable to torture another human being. Whatever the necessity, and the justice, of the act, we must agree with Augustine that the entire discussion is necessitated by the miseries of human life brought about by sin and evil.

Dr. Kenneth T. Magnuson is an Associate Professor of Christian Ethics at the Southern Baptist Theological Seminary (Louisville, KY). He is a member of the Evangelical Theological Society, American Academy of Religion, and the Center for Bioethics and Human Dignity.