Speaking About the Unspeakable

Don’t talk about it. The more we talk about it, the more we make it seem normal. That is one view of the matter. The subject is torture. It is a subject that keeps cropping up in the news in connection with U.S. treatment of prisoners in Iraq and Guantanamo. Then there is the practice of “renditions” in which the CIA apparently sends suspected terrorists to countries that are not so squeamish about the techniques of “enhanced interrogation.” They, it is reported, do the dirty work for us. Alan Dershowitz of Harvard Law School kicked off a new discussion of torture by advocating that it be brought under legal jurisdiction by requiring a bench warrant for torturing suspects in extraordinary circumstances. Dershowitz is not advocating torture. He simply notes that it is practiced in the great majority of countries of the world, and he is proposing a way by which he thinks the practice could be reduced by careful regulation.

Now Sanford Levinson who teaches law at the University of Texas has edited a book from Oxford University Press, Torture, with sixteen reflections on the subject. They range from the don’t-talk-about-it school to the talk-about-it-only-to-condemn-it view, to a variety of discussions of when torture is permissible and impermissible. The book includes an older essay by Princeton’s Michael Walzer advancing the inescapable connection between political action and “dirty hands.” The essay reflects an un-Jewish skepticism about the reach of morality and law; indeed it is almost Lutheran in its view of simul iustus et peccator, popularly translated into the maxim, “Sin boldly.” Among the more interesting contributions is one by Richard Posner of the U.S. Court of Appeals for the Seventh Circuit and Senior Lecturer at the University of Chicago Law School. Posner notes that “torture” lacks a clear definition in international agreements and American law. “Almost all official interrogation is coercive, yet not all coercive interrogation would be called ‘torture’ by any competent user of the English language, so that what is involved in using the word is picking out the point along a continuum at which the observer’s queasiness turns to revulsion.”

There is also, one notes, a continuum of circumstances in which most people, rightly or wrongly, would make an exception to the general prohibition of torture. The most commonly cited exception is that of “the ticking bomb” in which there is reason to believe that a suspect knows the location of a nuclear weapon planted in a large city which, if it explodes, will kill thousands of people. In this book and elsewhere, almost all the parties to this discussion feel compelled to address “the ticking bomb” circumstance. Posner says he agrees with Dershowitz that “if the stakes are high enough, torture is permissible.” He adds, “No one who doubts that should be in a position of responsibility.” He suggests that Dershowitz is naïve, however, in thinking that the involvement of judges and warrants would not quickly become corrupted, resulting in the routinizing of an odious practice.

A Law of Necessity

Posner draws a comparison with Lincoln’s unconstitutional suspension of habeas corpus during the Civil War. “Lincoln did it anyway and was probably right to do so—the Union was in desperate straits, and its survival was more important than complying with every provision of the Constitution, since, had the rebellion succeeded, the Constitution would have gone by the boards. It does not follow that the Constitution should be amended to authorize the president to suspend habeas corpus; for he might be inclined to test the scope of that authority.” It is important, says Posner, that Lincoln knew that what he was doing was illegal. The comparison is weakened, however, because Lincoln’s circumstance was sui generis, while the practice of torture is widespread and ongoing. In these discussions, reference is frequently made to Israeli laws aimed at prohibiting torture in the interrogation of terrorist suspects. The regulations distinguishing legitimate interrogation techniques from torture are quite precise, but allowance is made for ex post facto pardons in the use of torture when the appeal is to “the law of necessity.” We are again back to the ticking bomb scenario.

In all this, I am struck by the paucity of serious discussions by Christian moral theologians and ethicists. In these pages I have said, “We dare not trust ourselves to torture.” I believe that but acknowledge that it is not sufficient. How do we address these questions of what in fact is happening in circumstances in which conscientious Christians seek moral guidance, and how can we do this without falling into the pits of relativism, proportionalism, consequentialism, and related errors? In the ticking bomb instance, does the duty to protect thousands of innocents override the duty not to torture? There is a related development that has also not received the attention it would seem to deserve. It is a generally accepted moral maxim that it is always wrong to deliberately take innocent human life. Yet after September 11 it is the policy of our government to shoot down hijacked airplanes, thus killing the innocent passengers, if there is reason to believe that, as in the case of the World Trade Center, the hijackers intend to use the plane as a weapon. One can, of course, stretch the rule of “double effect”—the distinction between what is directly willed and what is only indirectly willed—but it is a stretch that teeters on the edge of simplistic intentionalism.

The instance of hijacked planes is relatively rare; the instance of torture is common, and, it would seem, becoming more common. Christian ethicists have in recent years moved away from “quandary ethics” to “virtue ethics,” and that is in many ways a good thing. But quandaries persist. Casuistry has a bad reputation, but the careful study of cases and the moral rules that apply to them is inevitably part of serious moral reflection. I, too, earnestly wish that we could not talk about torture. But the reality and the discussion of the reality will not go away. One cannot help but think that the discussion would benefit from the contributions of Christian and Jewish thinkers informed by the wisdom of biblical sources and their own traditions.