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Sunday, October 08, 2006

"The Torture Debate" - Part II

This post is a supplement to On Torture, "Aggressive Interrogation" and The Military Commissions Act of 2006, posted one week earlier on Against The Grain.

Framing the Debate

Readers and pundits wrestle with the question of how to frame the debate on torture and the U.S.' development of new measures of interrogation in dealing with terrorist detainees. In my first post I've discussed the problems inherent in labeling the opposition 'torture apologists' -- of willfully, consciously endorsing torture. In a recent post, Mark Shea suggests that raising questions about the validity of certain interrogation procedures and whether they constitute torture is tantamount to deceitfully asking "how close can I come to committing torture without actually doing so," in the same manner as "a man who is constantly calling you to ask just how far he can go with the blonde at work without it actually crossing the line into adultery."

Of course, you don't have to go through the trouble of finding out what the Christian tradition says. You can just go straight to the multiplying loopholes and excuses part. Because something in our hearts tells us there's something wrong with beating a defenceless man with a rubber hose. That's what I the majority of torture apologists appear to do out there in the wide world. That's certainly what those in the Bush Administration and the right wing media have been doing. . . .
Now, I realize Mark is taking aim at what he has dubbed on some occasions the "Rubber Hose Right" and on other occasions "Torture Apologists", by which he refers to a certain segment within the "right wing media" -- who would dismiss Abu Ghraib as "frat hazing" (Rush Limbaugh) or defend water-boarding as a legitimate tactic (a practice rejected by the Department of Defense, according to this report). But I take issue with Mark's wholesale imputation of devious motives to the Bush administration or the Republican Party in general ("The Torture Party", as he is taken to referring to the GOP nowadays).

Nor do I think that the majority of those (infinitely more patient than I) who continue to respond in Shea's combox -- including Chris Fotos, Victor Morton and the Coalition for Fog -- advocate beating prisoners with rubber hoses or "poo-pooh" Abu Ghraib as a harmless prank (more about this in a minute).

In defense of the latter, Ed Graham puts it best:

I think your real debate here is not with those who would try to justify the decision to "enter into evil," but with those who sincerely desire NOT to enter into evil but are unconvinced that particular interrogation techniques, including interrogation techniques that seem to fall short of any traditional definition of torture, but which may otherwise violate strict interpretations of the Geneva Convention, are "intrinsically evil." That's where efforts -- by both sides -- to "think different" (God, I hate that ugly slogan!) truly are needed. Yes, there are some who will defend torture or other obviously immoral approaches outright, but most of the people on these threads . . . are sincerely struggling to balance two powerful goods: protect life but act virtuously. They understand that some conduct is obviously beyond the pale but they cannot believe that we must always eschew even mild forms of physical and psychological coercion and disorientation when interrogating prisoners who may have life-saving information. I know that that is what I struggle with when thinking about this subject. Perhaps we must eschew such techniques. But if your goal is to convince us that we must, I'm afraid that simply repeating that our guiding principle should be the question "how do we treat prisoners humanely?" inevitably begs the question whether interrogation technique X is "inhumane"? No matter how many times you inflect the delivery.
I'd like to believe that there is mutual agreement from all of us in the Catholic blogging community that torture and the abuse of prisoners is morally impermissable. For example, here is Mark Shea [in his own combox]:
We have to *begin* by recognizing there are certain things we may not do, such as torture and abuse of prisoners. *Beginning there*, we have to then ask, "How *can* we interrogate them?"

And here is Rich Leonardi [in my combox this week]:

Detention and interrogation are legitimate; cruelty and torture are not. Determining at what point the former crosses over into the latter is essential. Characterizing those who are making that determination as either legalists or near-torturers isn't helpful.
At least, Mark and Rich Leonardi seem to be on the same page. But as Rich points out, this begs the question as to what practices actually constitute torture, and whether some forms of "physical and psychological coercion" used during interrogation are licit. (Judging by conversations I've read over the course of this week, I am certainly not alone in thinking this discussion is necessary).

Mark Shea's continued Referral to Abu Ghraib

One impediment to holding a serious discussion on this topic at Catholic and Enjoying It is that the prominent example cited by Mark in recent discussions on torture are the scandalous abuses which occurred at Abu Ghraib. Mark has on more than one occasion given the impression that the Bush administration is fighting tooth and nail to perpetuate the abuses and cruelty towards prisoners that occurred at Abu Ghraib. This is demonstrated by this past week's "I can't believe it's not torture" use of black humor, which perpetuates the equasion that Abu Ghraib should be considered the norm for U.S. interrogation.

Never mind the fact that the abuse at Abu Ghraib was subject to a military investigation with those directly responsible for Abu Ghraib were investigated, tried and convicted. See Accountability for Abu Ghraib ( March 14, 2006); in June 2006, a dog handler was convicted, making for a total of 11 convictions (Hard labour for Abu Ghraib abuser BBC News June 2, 2006).

When this point was raised by a commentator, Mark's cynical response is: "People were prosecuted and sent to jail for this because it would have been political suicide not to do so" -- as if to suggest that our own military, and the Bush administration, are utterly incapable of recognizing that those acts which occurred at Abu Ghraib constitute abuse and are morally impermissable.

But this flies in the face of both the facts, the testimony of witnesses and -- according to this report (The 'Torture Narrative' Unravels", by Robert Pollack (Wall Street Journal Oct. 2, 2005) -- the conclusion of the Independent Panel to Review DOD Detention Operations that the abuses "were not part of authorized interrogations nor were they even directed at intelligence targets." As the report goes on to say:

It's worth remembering too that these prosecutions were based on investigations conducted with dispatch that did the Army nothing but credit: A criminal probe was begun within a day of the abuse reports traveling up the chain of command on Jan. 13, 2004; two days after that, Central Command issued a press release about the investigation; on March 20 it was announced that charges had been brought against six of those involved. Meanwhile, Maj. Gen. Antonio Taguba had completed an investigation whose conclusions have now stood the test of nine courts martial. And this all more than a month before the photos were leaked to the press.

Have detainee abuses occurred elsewhere in the war on terror? Of course. But they were "widespread" only if you define that term geographically instead of by frequency. The adjective "systematic" has been similarly misused. Overall, more than 70,000 detainees have passed through U.S. military custody since late 2001. About 500 criminal investigations have been conducted into allegations of related misconduct, many of which were found to be unsubstantiated. But more than 200 people have already been disciplined for actions ranging from failure to report to prisoner abuse itself.

(Hat tip: Tom Conelly | 10.06.06 - 10:12 am).

And in the estimation of Jeffrey Addicott, Associate Professor of Law and Director, Center for Terrorism Law at St. Mary's (Military Justice at Abu Ghraib Jurist Sept. 28, 2005):

At the end of the day, it seems improbable that the United States military engaged in command directed torture or ill-treatment at Abu Ghraib, particularly when it was the military itself that self-reported to the media the fact individual soldiers were being investigated and punished in accordance with the rule of law for wartime abuses at the prison. Clearly, the best indicator that the senior leadership is not culpable is found in its continuing commitment to criminally investigate and prosecute those soldiers accused of committing detainee abuses. Numerous soldiers have already been prosecuted and sentenced for their crimes, and criminal trials will continue for others.
Does Mark Shea consider Abu Ghraib to be the primary example of what the Bush administration is -- in his own words -- "fighting tooth and nail" -- to establish as the norm?

If so, I would suggest that the burden of proof rests on him.

Addendum 10/9/06

According to this briefing with Deputy Assistant Secretary of Defense for Detainee Affairs Cully Stimson and Army Deputy Chief of Staff for Intelligence Lt. Gen. John Kimmons, the new releases of the Defense Department Directive for Detainee Programs and the Army Field Manual for Human Intelligence Collector Operations were developed in part as a response to the abuses which occurred at Abu Ghraib:

This directive is the cornerstone of DOD detention policy, and that's important to understand. The Army Field Manual, for instance, falls under this DOD directive. It sets out policy guidance for all DOD detention operations that is necessary and appropriate to ensure the safe, secure, and humane detention of enemy combatants, both lawful and unlawful, regardless of the nature of the conflict. It consolidates existing direction and instructions of the president and the secretary of Defense, and incorporates the lessons we have learned over the past few years in waging the global war on terror. It does so in a number of ways. It incorporates key policy changes recommended in the 12 major investigations conducted by DOD over the past two years. In fact, by publishing this document and the Army Field Manual, we will have addressed over 95 percent of the recommendations from those 12 major investigations since Abu Ghraib.
I would encourage a full reading of the transcript to understand the depth and scope of the changes. According to Gen. Kimmons, there are more than 500 interrogators deployed, four-fifths of which are Army soldiers, assigned with generating "actionable intelligence of practical, tactical relevance."

Now, the question I would ask -- which I think Mark would likely ask as well -- is if the DoD directive can hold accountable "civilian contractors" and those not directly affiliated with our Armed Forces? One article that I came across yesterday -- "The Unaccountables" (American Prospect September 2006) -- raises this troubling question:

On May 7, 2004, shortly after the Abu Ghraib scandal broke, Defense Secretary Donald H. Rumsfeld and Acting Secretary of the Army Les Brownlee appeared before the Senate Armed Services Committee. Brownlee said they would make sure individuals “responsible for the shameful and illegal acts of abuse are held accountable.” Eighty-nine members of the U.S. military have been prosecuted for detainee-related misconduct since the start of Operation Enduring Freedom. And recent reports of rape, murder, and other crimes in Haditha, Mahmudiya, and other Iraqi towns indicate that some soldiers responsible for such acts will be held accountable.

Not so for independent contractors like Nakhla, who has been implicated in charges of rape, torture, and assault during his one-year stint in Iraq. He is one of 25,000 civilian contractors who have worked for the military in Iraq since hostilities began. Currently, more than 15 contractors are under Justice Department investigations. While that number may seem small set against 25,000, many observers say instances of contractor abuse are vastly underreported by victims -- and underinvestigated by the military. Only one civilian, David A. Passaro, a CIA contract interrogator, has been indicted -- for assault on detainee Abdul Wali, who died in June 2003. Passaro’s trial opened on August 7.

In short, while the DoD's response to the Abu Ghraib scandal and other incidents of detainee abuse is commendable -- according to the American Prospect, more than 250 officers and soldiers have been held accountable -- the process for taking legal action against contractors and those not directly under the jurisdiction of the military presents a grave impediment to justice, as evidence by the fact that "none of the civilian workers from Abu Ghraib have even been put on trial."

We can agree that this remains a problem to be rectified. Nevertheless, as regrettable as it is, it does not remotely warrant the suggestion that the Bush administration is not concerned about detainee abuse, or that the only reason disciplinary actions have been taken is "because it would have been political suicide not to do so."

Fr. Brian Harrison's Examination of Torture

In response to the second section of my post, including my citation of the Catechism on the Church's sanction of torture in the past, Greg Krehbiel and Victor Morton raise like-minded objections. The weakness in Mark Shea's approach, according to Victor, is that "how can something become an intrinsic evil when the church has affirmatively and authoritatively mandated it."

Victor Morton and others have mentioned this letter from Fr. Brian W. Harrison, who in response to Shea's article in Crisis magazine, noted "the huge elephant in our Catholic living room that everyone politely refrains from mentioning is the massive, trimillennial Judeo-Christian tradition that legitimized torture right up until Vatican II."

A more extensive and scholarly treatment of this subject is offered by Fr. Harrison in Torture and Corporal Punishment as a Problem in Catholic Theology (Living Tradition No. 118 July 2005). After noting the "near-silence on the part of theologians may be the great difficulty involved in the ethical evaluation of a concept [of torture]" due to its resistance to precise definition, Fr. Harrison goes on to say:

Another reason for our reluctance to address this issue theologically may be a sense of uneasiness, not to say embarrassment, about the prospect of re-opening old wounds. For while the shudder-evoking practices that we qualify as torture are generally excoriated on all sides today, every student of Catholic history and theology knows they were endorsed for many centuries by the most respected theologians (including saints and doctors of the Church), and by the highest ecclesiastical authorities. And yet the issue cannot simply be side-stepped forever. . . .

The theological problems arising in this are area can be put fairly simply. First, how has this great ‘disconnect’ – this astonishing contrast between the beliefs and attitudes of Christians today and yesterday respectively about the ethics of torture – arisen historically? And secondly, is there any discernible continuity across the centuries in the Church’s official doctrine regarding this matter? Or has she simply contradicted her own magisterial teaching?

Fr. Harrison's two-part essay -- the second part has yet to be published -- represents a significant and serious treatment of the subject, "[following] the classical procedure of examining in turn the witness of Scripture, Tradition, and Magisterium." It calls for a careful reading, and seems to warrant something more than the casual dismissal from Mark Shea, who in his response to Chris Fotos in my combox gives the impression that Fr. Harrison has adopted a permissive attitude to torture:
[Shea] . . . because somebody named Fr. Brian Harrison says so, we can all pretend that physical and mental torture are not intrinsic moral evils, despite the fact that Veritatis Splendor defines them as exactly that.
I am curious whether Mark Shea had read Fr. Harrison's more lengthy treatment of the subject? -- If he did, he would discover that -- despite their differences on the formulation of the Church's prohibition of torture -- with respect to the practical, contemporary application of torture itself, they are basically in agreement. Consider Fr. Harrison's conclusion:
These biblical principles would seem to lay the foundation for a coherent account of the gradual development of Catholic doctrine on the ethics of inflicting of bodily pain. First, there is no evidence of approval in either Old or New Testaments of torture for the purpose of coercing the will. Then, as regards similar extreme pain as punishment for offences already committed, the fullness of revelation in Christ, without ever reaching the point of condemning such penalties as absolutely and intrinsically unjust, emphasizes mercy and forbearance – taking account of both the human sinfulness of the judge and the human dignity of the malefactor – to the maximum extent compatible with preserving public order in a society formed by Gospel principles. The eventual abolition in practice of these extreme measures from such a society in accordance with a changing common estimation of the needs of both human dignity and public order remains, therefore, in fundamental harmony with the fullness of biblical revelation. The requirements of mercy merge, for practical purposes, with the requirements of justice.
(Note as well that Scott Carson and ZippyCatholic have both offered something in the way of a response to this issue).

Related Discussions from "St. Blog's Parish"
(And of course, read the comments).

  • Torture, by Prof. Scott Carson (The Examined Life October 4, 2006):
    In this post I am interested in addressing two separate, but related, issues: first, what I will call the Demarcation Problem, that is, what are the boundary conditions that separate acts of torture from acts that are merely "aggressive"? Second, a problem raised in Christopher's post: what to make of the use of torture by agents of the Church during certain periods of history? Does this in any way imply that the Church accepts the moral licitness of torture in defense of the common good?

  • The Doctrinal-Juridical Two Step, ZippyCatholic. Oct. 3, 2006. (Zippy takes on Victor Morton / Fr. Harrison's argument with respect to the Church's advocacy of torture in the past):
    There is a fundamental difference, though, between a doctrinal teaching and a juridical decision. When Church administrators (including the Pope) make juridical decisions, they are not exercising the teaching office of the Magisterium. Their authority is every bit as legitimate, and obedience to it is every bit as obligatory, as is the civil authority within its legitimate domain. But a juridical decision is just a juridical decision: an act of a human administrator doing his best - or not - in exercising his legitimate authority over human affairs. It is a different sort of thing from a doctrinal teaching about a truth of the Faith.

  • Thinking About Torture, by Maximos. Enchiridion Militis Oct. 6, 2006; response: What the Meaning of "Just Is" Is, by ZippyCatholic Oct. 7, 2006.

  • More from Disputations: Against rule-based rules Oct. 4; Torture Debate 6.0: Now With Visual Aids! Oct. 5; Lines, laws, and morals Oct. 6, 2006.

  • Torture Redux and Consequentialism, from M.Z. Forrest The Discalced Yooper Oct. 2, 2006.

  • Gestalt Morality, by Tom McKenna (Seeking Justice):
    One thing is certain: the view that holds "it is fundamentally wrong-headed to approach this question from the perspective of 'How close can we get to committing the grave evil of torture and get away with it?'" is a variety of Quietism that negates the whole endeavor to make distinctions in moral theology so that we can know "what it right and what is wrong." A police officer interrogating a suspect for 8 hours with only bathroom breaks might be on one end of a spectrum. Waterboarding might be on the other end. Simply repeating, mantra-like, "torture is evil" does not answer the question for the interrogator "what may I do in the (legitimate) endeavor to elicit information from a wrongdoer?" Not only are such lines important in and of themselves for moral reasons, but the government agents need to know what is civilly permissible. Hence the efforts on the federal level to codify some of these distinctions.
  • Torture: Safe, Legal, and Rare?, by Maclin Horton. Light on Dark Water Oct. 9, 2006:
    That’s the nature of the rules we make for ourselves. Wherever the line is drawn, we can assume that people will cross it. To pass laws allowing torture in some circumstances, however limited they may be, is to declare it fundamentally licit, and its use a matter of judgment on the part of those most likely to be tempted to employ it. . . .

    A better approach, it seems to me, is to think of scenarios such as the ticking-bomb one as similar to the case where a starving man steals food. Because no reasonable person (in our culture, at least) would blame him, we would expect a sensible administration of justice to let him off with little or no penalty. . . .

  • Is Torture Intrinsically Immoral?, by Maclin Horton. Caelum Et Terra October 10, 2006.

Update! Oct. 11, 2006

Update! Oct. 19, 2006

Fr. Brian Harrison informs Tom McKenna (Seeking Justice) that the second part of his article has been published in Living Tradition -- see Torture and Punishment as a Problem in Catholic Moral Theology: Part II. The Witness of Tradition and Magisterium Living Tradition No. 119, Sept. 2005. [The link was not available at the original time of this posting].

Please see my first post -- On Torture, "Aggressive Interrogation" and The Military Commissions Act of 2006 -- for an extensive compilation of links and reference materials on the subject.

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