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Sunday, November 12, 2006

So what do I think about Torture?

In what has become the characteristic approach of Catholic and Enjoying It, Mark dismisses a post by Tom McKenna by saying that he was "orgasmic at the idea of hanging Saddam," that his "blog is more or less devoted to obsessing over how to execute as many people as humanly possible," and that he had an "insatiable hunger and thirst for death, death, death, and more death."

Responding with what has likewise become my characteristic rejection of Mark's approach (played out over the course of a three-part series on Mark's treatment of the 'neocons' in August 2006 and a four-part series on "the torture debate" in October 2006), Mark expresses his frustration with my "fair and balanced act."

ZippyCatholic likewise issues a challenge:

"It is all well and good to link to a lot of what other people say and think, though of course any "roundup" is going to have biases built into it (if for no other reason than that not every opinion has the merit to be put on an equal platform with every other opinion, as evidenced by Christopher's failure to publish the opinions of Catholics for a Free Choice with the same noncommital dispassion as he publishes the opinions of the Coalition).

But what do you think is true, Christopher? Do you actually have any opinions of your own, or do we have to glean them implicitly by reading the tea leaves in what you do and do not choose to publish in your "roundups"? Can't we all agree that someone must be wrong? . . .

These things aren't OK. Christopher presents some of them as if they are OK. If his point is "Mark is right in substance on these issues, but I wish he was different in how he approached them rhetorically" then Christopher is more than capable of just saying that outright. I suspect he doesn't say that because that isn't his position in fact. And I would have more respect for his position if he would just come out and say what it is outright, come out and own it rather than posting endless roundups and leaving us to guess from his editorial decisions where he is coming from himself

Jeff comes to my defense in Shea's combox, followed by Victor Morton in a post to his own blog (here and here).

Nonetheless, I think it fair to provide Zippy with a summary of where I stand on various issues in the past several roundups on torture.

Read more!

On Torture, "Aggressive Interrogation" and The Military Commissions Act of 2006 Against The Grain October 2, 2006.

  • I began this post by citing approvingly Jonah Goldberg's criticism of how the "torture debate" has progressed so far:
    It steals a base to say that the Bush Administration wants to legalize torture because you first have to demonstrate that what they want to do is torture. I think it is a perfectly defensible and honorable position to claim that waterboarding, sleep deprivation etc. amount to torture. I don't think I agree with that view. But I certainly believe it is made in good faith. But the good faith ends when the same people then issue blanket and sweeping assertions that the people who want to legalize those actions are simply pro-torture. If the legalizers were simply pro-torture they would favor hot pokers, iron maidens, finger-nail-yanking and the rest.
    I'm not sure if Jonah reads Catholic & Enjoying It, but it is a good assessment nonetheless of why a good number of fellow Catholic bloggers I know have either vacated that blog or remained only to point out why this approach doesn't work.

  • I also agree with Evan's comment on the need for "better definition of if/when tactics like sleep deprevation, etc. can be used so that guards/soliders can't be brought to trial for simply doing things they felt were acceptable". As I stated myself:
    in order to condemn an action, you have to be in a position to recognize and define what it is. Especially when defining and implementing legal regulations pertaining to "the laws of war" and prisoner interrogation, I don't see how you can go about formulating such criteria without discussing the range of actions taken.
    To concur with Fr. Neuhaus: "The task is to draw as bright a line as possible between coercion and torture, and to forbid the latter absolutely."

  • In my first post, I had offered from the Catechism what at first read seemed a cut-and-dry rebuttal to the "But didn't the Church use Torture?" argument. However, the introduction of the two-part history by Fr. Harrison (which I was unaware of at the time of my initial writing) has since persuaded me that JPII and the Catechism's cursory paragraph-long treatment of this issue is insufficient, and I am largely appreciative of Harrison's contribution to this debate. (I will elaborate on this in a bit).

  • In the section, "Does Torture Ever "Work"?", I pointed to two historical cases demonstrating that torture did, indeed, "work" -- one of which was Oplan Bojinka, involving the interrogation of Hakim Murad -- co-conspirator of 1993 World Trade Center bomber Ramzi Yousef -- who was caught by the Philippine police in 1995 and revealed plots to crash 11 commercial airliners into the Pacific Ocean. To divert attention from the airline bombings, there was a concurrent plot to kill Pope John Paul II when he visited the Philippines during the World Youth Day 1995 celebrations.

    In a subsequent discussion with Victor Morton on this subject, I learned what "tactical interrogative" techniques were used by the Manila police to obtain this information and foil Al Qaeda's plans. I do not approve of the measures taken, but at the same time, I think it is certainly legitimate to inquire what techniques should be employed in instances where a terrorist is captured with concrete evidence of a plot and reasonable suspicion exists (in the case of Bojinka, plans for the attack were discovered on a laptop, after police investigated a fire in Yousef's apartment). This should put to rest Mark's assertion that "24 scenarios" simply don't exist. If it happened once, there is a good expectation that our military and intelligence operatives will encounter such a situation again.

  • Just for the record, I have asserted my opposition to waterboarding. I also rejected the argument from one milblogger I read that, since our own government employs waterboarding in the training of our special forces, it would be acceptable to inflict it on our enemies. Training our troops to endure such practices (with the expectation that they would be subjected to them by the enemy) does not necessarily legitimize our use of them.

    On that note, I might as well add that I consider "Palestinian hanging" and "cold cells" (involving the deliberate attempt to induce hypothermia) to be torture and morally indefensible as well.

What do I think about The Military Commissions Act?

The Military Commissions Act of 2006 (MCA) was the primary subject of my first roundup and my motivation for rounding up resources, responses and commentary. If I recall, it was the legislation that sparked Mark's accusations that the Bush administration "wanted more Abu Ghraibs."

I highlighted passages in Byron York's article ("The Detainee Deal: The White House Won — and So Did McCain" National Review Sept. 22, 2006) that appeared positive, as well as indications of concern ("the status of the most notorious of those techniques, waterboarding, is not quite clear").

I also posted a link to the actual text of the legislation, because -- silly me -- I assumed that if we were discussing it, we might want to read it ourselves.

I am not a legal scholar, so when it comes to forming my own judgement on the MCA I try to find and examine the informed criticism from both sides. For this reason I've linked to a roundup by legal scholars like John M. Balkin, as well as some counter responses -- The New Detainee Law Does Not Deny Habeas Corpus, by Andrew C. McCarthy (National Review October 3, 2006; The Constitution, Writ or Wrong, by Adam J. White (Weekly Standard October 5, 2006) -- that question, for instance, Sen. Arlen Spectre's assertion that the MCA "take[s] our civilization back 900 years," to before the adoption of the writ of habeas corpus in medieval England.

I have not yet concluded on the legislation, but given the liberties the CIA has taken with interrogation in the past decades, I think an open discussion and some attempt at regulation is a positive thing. The full implications of the MCA won't be known until it is put into practice -- Stephen Rickard believes it may actually have an opposite effect than what its critics are claiming ("Interrogators Beware" Washington Post Oct. 17th). Time will tell and I'll likely be looking more at this in the future.

While I think people should have given it more attention, the focus of 'the Catholic blogosphere' was on the interpretation of magisterial documents on the subject, which was the subject of subsequent roundups.

* * *

My subsequent roundups cover similar aspects of the debate as I tried to tie together various discussions in the Catholic blogosphere.

In my second post I disagreed with the proposal 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," -- which Mark Shea thought was comparable to asking how close can one get before committing adultery. Suffice to say I think fellow Catholics asking such questions do not harbor this intent. To quote Rich Leonardi:

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.

What do I think about Abu Ghraib?

I disagreed with Mark's display of photos of Abu Ghraib as a debating tactic and the assertion that Abu Ghraib is what the Bush administration wants, indeed, "fighting tooth and nail" to achieve, and that "People were prosecuted and sent to jail for [Abu Ghraib] because it would have been political suicide not to do so."

I am not inclined to believe that the only reason our government was involved in bringing the abusers of Abu Ghraib to justice was for reasons of political expediency, and that they are incapable of remorse or moral repulsion. (The way Mark describes Bush, you'd think he would be happily applying electrodes to the captive's testacles). So I examined the topic for myself and came across some articles which challenged Mark's characterization (The 'Torture Narrative' Unravels", by Robert Pollack Wall Street Journal Oct. 2, 2005; Military Justice at Abu Ghraib Jurist Sept. 28, 2005).

I noted that 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.

At the same time, I shared with my readers what I believe to be a persistent problem of civilian contractors who played an instrumental role in Abu Ghraib (as described in "The Unaccountables" American Prospect September 2006). Falling outside the military's jurisdiction, such individuals have eluded legal prosecution.

I continued to examine this aspect of the abuses at Abu Ghraib in my third roundup of the "torture debate", when I uncovered an exclusive interview Army Reserve Brigadier General Janis Karpinski that supported the thesis that the chief problem at Abu Ghraib was not the CIA (about whom she praises as "the consumate professionals", and not prone to endangering the health or life of their charges) but rather civilian contractors, placed in positions of responsibility for interrogation and who operate without supervision, accountability or under the jurisdiction of the army. As a article asserted, "The use of civilian contractors is key to understanding Abu Ghraib" ("Contract to torture", by Osha Gray. August 9, 2004).

As I stated then and will reiterate:

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.

* * *
What do I think about Fr. Harrison?

In subsequent roundups of "the torture debate", I linked to others who were engaged in similar discussions, howebeit in a less polemical manner and perhaps for that reason seemed to bear more fruit. Many of these conversations centered on the treatment of Fr. Brian Harrison's two-part examination, "[following] the classical procedure of examining in turn the witness of Scripture, Tradition, and Magisterium."

Fr. Harrison's survey of torture is troubling. He finds "Christian witness on [torture] . . . not only sparse, but is also, on the whole, disappointing. What we see is an instance of the familiar scenario in which a pendulum drawn too far in one direction swings rapidly to the opposite extreme when suddenly released."

In examining Gaudium Et Spes (and John Paul II's later use in quoting the passage in Veritatis Splendor #80), his key interest is in discerning exactly what is being referred to in the Council's condemnation. What is not attempted is a precise definition of torture; rather, in light of its pastoral nature, what it refers to are those kinds of torture which have actually been going on in the 20th century:

By the 1960s probably not a single country was left on earth whose penal code still openly and shamelessly provided for torture, with corresponding legislation regulating its application. At the same time, however, 20th-century Communist and Nazi regimes, along with many other petty dictatorships, especially in Latin America, Asia and Africa – not to mention any number of proscribed terrorist and criminal organizations – had been clandestinely refining, and ruthlessly applying, any number of new and horrendous torture techniques.

That, I suggest, is essentially the kind of torture contemplated and condemned by Vatican II, and then subsequently branded by John Paul II, as one example of "intrinsically evil" practices among others, when he quotes the Council word for word in Veritatis Splendor #80. I do not think we can conclude much more than this about the morality of pain infliction from these two magisterial texts alone. For that would be trying to make them provide answers to questions they did not set out to address.

The ensuing analysis from Harrison has been the subject of much discussion in the comboxes:
The Council itself, as we have pointed out, is contemplating, and roundly condemning, the currently existing phenomenon of torture, which happens to include this gravely aggravating factor of uncontrolled, clandestine arbitrariness. But also in the case of John Paul II’s encyclical, the Pope’s primary purpose in #80 is not to pass a considered judgment on torture as such – a question of ‘special’ moral theology. Rather, he is concerned to assert a much more general truth pertaining to ‘fundamental’ moral theology, namely, the falsity of recent ‘proportionalist’ theories, according to which practically any specific kind of human action could be justified under certain conditions. What the Pope wants to insist on here, in opposition to such theories, is simply that there do really exist classes of actions which are intrinsically morally evil, and which, therefore, can never be justified under any circumstances. And Gaudium et Spes #27 simply happens to furnish the Pope with a convenient, ready-made set of examples to help him illustrate his point. But even here, while the first examples given by Vatican II (murder, genocide, abortion, etc.) certainly serve the Pope’s purpose, not all of those further down the list do so – at least, not without further definition, amplification or clarification. . . .
Like "deportation" and "subhuman living conditions", Fr. Harrison asserts that "a hasty and strictly literal interpretation of what this passage says about torture would not accurately reflect the mind and intention of John Paul II. That is, VS #80 cannot legitimately be read as containing a formal judgment on the part of the Pope to the effect that the voluntary infliction of severe pain is, as such, 'intrinsically evil'."

Fr. Harrison points out three practices that do merit the description of "intrinsically unjust" according to Catholic doctrine:

  1. "Torture for extracting confessions of a crime of which one is accused"
  2. "Torture carried out on those not even accused formally of any crime or offence, simply in order 'to frighten opponents, or satisfy hatred'"
  3. "Torture, or indeed, mutilation or any other kind of physical or psychological violence against the person, carried out not by public authority in accordance with a norm of law, but by those acting arbitrarily and clandestinely, without any legal authority (even if they should happen to be heads of state, secret police, etc.)." According to Fr. Harrison, the majority of those acts of torture presently occuring in the world fall into this category.
However, he goes on to consider a fourth scenario: the infliction of pain in the effort to obtain information for the saving of lives (the possible rationale for torture not mentioned in the Catechism).
. . . there remains the question – nowadays a very practical and much-discussed one – of torture inflicted not for any of the above purposes, but for extracting life-saving information from, say, a captured terrorist known to be participating in an attack that may take thousands of lives (the now-famous ‘ticking bomb’ scenario). As we have noted above, this possible use of torture is not mentioned in the Catechism. If, as I have argued, the infliction of severe pain is not intrinsically evil, its use in that type of scenario would not seem to be excluded by the arguments and authorities we have considered so far. (John Paul II’s statement about the "intrinsic evil" of a list of ugly things including torture in VS #80 does not seem to me decisive, even at the level of authentic, non-infallible, magisterium . . . My understanding would be that, given the present status question is, the moral legitimacy of torture under the aforesaid desperate circumstances, while certainly not affirmed by the magisterium, remains open at present to legitimate discussion by Catholic theologians.

Jimmy Akin & Fr. Harrison

While Harrison's study is more substantial, it is worth noting that in his two musings on the subject, one of Mark's fellow Catholic apologists, Jimmy Akin, registers opinions that are similiar, to Fr. Harrison's own:

From Doubts About Torture (October 26, 2006):

There have been a number of statements in Magisterial and semi-Magisterial documents condemning torture, but these do not offer technical definitions of what torture is, and having a good definition is a precondition for formulating a solid response to finely posed moral questions on the topic. . . .

At this point we don't have a good definition for torture--one that will allow it to be distinguished from other uses of the infliction of pain (mental or physical) to ensure compliance with various goals--and so at present moral theologians have the liberty to hash out the question until the issue matures to the point that, should it be warranted, an official response would make sense.

From What About Torture? (June 28, 2004):
The Catechism's discussion of torture (CCC 2298) focuses significantly on the motive that is being pursued in different acts of torture. If it means us to understand that having a particular motive is necessary for an act to count as torture then it might turn out that some acts commonly described as torture are in fact not torture--just as some acts commonly described as stealing are not actually the sin of stealing, such as taking food to feed one's family during a time of starvation when the person who initially had the food has plenty. The same might turn out to be true of torture (i.e., not everything that looks like torture would be the sin of torture).

For example, the Catechism's list of motives for torture does not mention the use of physical pressure to obtain information needed to save innocent lives. It thus might turn out that it is not torture to twist a terrorist's arm behind him and demand that he tell you where he planted a bomb so that it can be defused and innocents can be saved. Certainly the kind of things that Jack Bauer may do on 24 are very different morally from the kinds of things that happened in Soviet prisons.

I would be disinclined to go the route of saying that torture is not always wrong. I think that the Church is pretty clearly indicating in its recent documents that it wants the word "torture" used in such a way that torture is always wrong. However, I don't think that the Magisterium has yet thoroughly worked out all the kinds of "hard case" situations one can imagine and whether they count as torture.

If I am not mistaken, Dave Armstrong comes to similar conclusions in his deliberation of the subject, when he claims: "Certain clearly specified, morally acceptable forms of coercion in limited amounts for extremely important strategic and preventive purposes is no worse than warfare itself, which the Church has never condemned in toto."

For Fr. Harrison, Jimmy Akin, and Dave Armstrong, there are actions which count as torture and which are understood to be intrinsically evil. Nevertheless, all three also acknowledge desperate circumstances where the "deliberate infliction of intense pain" would be permitted -- such circumstances involving the need to obtain information (or what some refer to as "actionable intelligence") and which involve the welfare of innocent lives.

Likewise, they appear to be of the opinion that the Magisterial texts and the Catechism are not particularly helpful either in providing a definition of torture or the criteria to evaluate these "hard case" situations. As Jimmy Akin puts it:

If Rush Limbaugh were commenting on the situation, he might--in his own characteristic idiom--refer to such brief condemnations as acts of "drive-by Magisterium" that condemn torture in a brief manner that does not pause to explain in technical detail what torture is or allow finely-tuned moral questions to be answered about it.
In any event, it seems to me that Jimmy Akin and Dave Armstrong would both consider a valid use of coercion in such situations as something other than torture.

I imagine Fr. Harrison would do so as well, although his interchangeable use of the term "torture" and the "deliberate infliction of intense pain" presents an obstacle and source of confusion. For example, his conclusion that "the moral legitimacy of torture under the aforesaid desperate circumstances, while certainly not affirmed by the magisterium, remains open at present to legitimate discussion" -- while similar in substance to Akin and Armstrong, will nonetheless rankle the ears of certain critics.

I confess at this point that I am unable to distinguish between the positions of Harrison, Akin and Armstrong and those of Victor Morton or "Torquemada" of the cheekily titled Coalition for Fog -- neither of whom could be characterized as gung-ho "torture-apologists". If Mark registers his offense at the fact that they've called him names, it sounds like a case of "tit for tat." I don't approve of it, but I understand how those who are on the receiving end of a daily stream of vitriol are tempted to respond in kind.

Here I agree with David Armstrong's assessment of "the torture debate":

I've come to the conclusion that the debate on this comes down to mostly semantics and personal hostilities. I saw that early on when I realized that folks (including myself at first) were sloppy in differentiating the terms "torture" and "coercion" in various contexts, thus leading to further confusion (within the framework of cynicism and suspicion on both sides).

Thus, when Mark sees someone like Jimmy Akin (and to a lesser extent, myself) - fellow apologists whom he knows - rendering an opinion unidentical with his own, he is capable of granting that they do it in good faith, whereas if someone he doesn't know or if someone he is personally hostile to (the dreaded "coalition for fog") renders an opinion unidentical with his own, then it is open season for mocking, caricature, and the most cynical interpretation imaginable.

For the record, I'm inclined to agree with Fr. Harrison, Jimmy Akin and Dave Armstrong. Perhaps this makes me an intellectual lightweight, in simply rounding up and voicing my sympathies with those I find persuasive, rather than voicing my own opinions. Then again, I readily concede that these are people who've studied this subject far more thoroughly and have more to offer -- especially Fr. Harrison, who has done us all a favor in researching and compiling what Catholic tradition has to offer in those two very informative pieces.

I've been a Catholic for only a decade and spent most of my years prior to that either Protestant or agnostic. I am not nearly as well-read as you suspect in matters Catholic -- for which reason I decline to blog on certain issues others feel comfortable expounding upon. (When I read Pontifications, for instance, I'm inclined to hang up my keyboard in shame and admit what a hack I truly am.

Part of my motivation for doing these roundups is selfish: when I study a topic, I like to cull together the best articles and commentary I can find and work my way through it -- it's for my own benefit as much as my readers. So if I don't assert an opinion outright it may very well be because I'm still in the process of thinking things through -- reading articles, weighing arguments, assessing positions, in what spare time I have.

Is this "Cafeteria Catholicism of the Right" (Zippy), or "a fair and balanced act (Mark Shea)? You decide. To those who I've disappointed, perhaps someday I'll rise to your expectations.

P.S. I owe Tom McKenna a response. However, I'd like to read some of the articles I've compiled before responding to the assertion that JPII instituted not a development but a break from Catholic tradition on capital punishment. This will obviously take more time than I have available tonight, so perhaps later this week.

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