07 October 2009

Torture: Self-Defense Argument

The Objectivist
Interrogational Torture: Justified Self-Defense
Dunkirk-Fredonia Observer
October 5, 2009

The Abu Ghraib scandal will likely prevent the U.S. from using interrogational torture in the future, even as the U.S. withdraws from Iraq and Afghanistan. The scandal surrounded a Baghdad Correctional Facility (also known as the Abu Ghraib prison), where there was haphazard and cruel treatment of prisoners by soldiers in the 320th Military Police Battalion. The New York Times reported that the investigation uncovered evidence that the soldiers did the following to detainees: forcibly sodomized one, poured phosphoric acid on others, tied ropes to detainees’ genitalia and then pulled them across the floor, jumped on a detainee’s leg (one already damaged through gunfire) with such force that it would not heal properly, beat them, urinated on them, etc. The U.S. found at least one case of homicide. There were also allegations of rape (including a fourteen year old Iraqi girl) and other cases of homicide. It was estimated by Brigadier General Janis Karpinski, the Abu Ghraib prison commander, that 90% of the detainees were innocent.

Eleven soldiers were convicted for these abuses and did prison time. In addition, seventeen soldiers and officers were removed from duty. Karpinski was demoted, in effect ending her military career. The American Civil Liberties Union leaked a 2004 FBI memo which indicated that President Bush explicitly authorized the use of extraordinary interrogation tactics by U.S. military personnel. The authorized tactics included sleep deprivation, hooding, loud music, stress positions, and the use of dogs.

Despite the Abu Ghraib mess, the U.S. probably should use interrogational torture. To see the argument for it, consider the following case from MIT professor Judith Jarvis Thomson. A trolley’s brakes don’t work and it is speeding down the tracks where it will run over five workers. The trolley driver, Edward, can turn the trolley onto a side track so that it runs over only one worker. Most people think that it is okay to Edward to do this because it saves four lives. This intuition gets stronger if the one worker disabled the brakes in order to kill the five.

A similar thing is true in cases in which a terrorist is part of an attack on civilians. Consider a case in which a terrorist has helped plant a bomb or initiated an imminent attack and refuses to disclose where the attack will occur. In both cases, by endangering innocents the attackers have forfeited some of their rights and may thus be harmed in the effort to blunt the attack. In the terrorist case, he may be harmed as a way to defend the innocent from his attack.

There are a series of objections. One objection is that even though the terrorists deserve to be tortured, the U.S. shouldn’t do this because the U.S. degrades itself in so doing. This appears to be the objection of Sen. John McCain (R-AZ) and other Senators who oppose such torture. However, it is less degrading to waterboard a terrorist who is part of an ongoing attack than to sit by and watch him and his buddies blow up innocent people.

Here is another way to consider the degradation issue. A number of recent economic studies indicate that the death penalty saves lives by deterring future murders. If this is correct and if the death penalty does not degrade us, then torture doesn’t do so. After all, most people would prefer torture to execution and the former more directly prevents killings. Similarly, it is hard to see why waterboarding someone for two days is more degrading than locking a young man in a cage for the rest of his life as is done when the state imposes a life sentence. It is certainly less degrading than shooting people with 50 caliber machine guns so that they explode into a pink mist and this is what happens when surgical attempts to stop terrorism fail.

A second objection is that torture doesn’t work. However, there are cases where interrogational torture does appear to have worked. One 1995 case involved Philippine authorities who tortured a terrorist into disclosing a plot to blow up eleven commercial airliners that were carrying roughly four thousand passengers. A 1994 case occurred when Palestinian terrorists kidnapped an Israeli soldier. Israel tortured the driver of the car used in the kidnapping to find where the soldier was being held. In a 2004 Central Intelligence Agency study, the director reports that interrogational torture (labeled “extraordinary interrogation tactics) provided extremely valuable information, including critical threat information. This likely referred in part to the repeated waterboarding of Khalid Shaykh Muhammad, a top al Qaeda planner, logistical expert, and architect of the 9/11 attack that killed nearly three thousand people. His information led to a number of arrests, including terrorists who planned to smuggle explosives into the U.S. and a sleeper operative in New York. Now there is the question whether torture, when done by professionals, often yields useful information and there is simply not enough information to answer it.

A third objection is that even if torture does not wrong anyone and is effective, it still has overall bad effects. It is claimed that interrogational torture strengthens our terrorist enemies by giving the U.S. a terrible image in the Muslim world, alienates allies, creates an environment where other countries will engage in horrendous torture, etc. The cost-benefit analysis is not clear. The U.S. also strengthens terrorist groups, alienates allies, etc. when it uses overwhelming military force to pursue enemies in Afghanistan, Iraq, and Pakistan, and occupies the first two. It is the threat of such terrorism that causes such actions and it might be that diminishing of this threat through interrogational torture would decrease the need for such pursuit and occupation. In any case, the cost-benefit analysis is unclear and so both the objection and response are so speculative as to warrant little weight.

A fourth objection is that interrogational torture is illegal and hence should be avoided as part of our respect for the rule of law. There are two statutes that might be thought to apply to U.S interrogators operating overseas: the War Crimes Act and the Torture Convention. Because it is likely that the relevant war-crimes statutes (Geneva and Hague) don’t apply to terrorists, the War Crimes Act probably is irrelevant. It is unclear whether the Torture Convention prohibits carefully calibrated interrogational torture. If it does, the U.S. should consider withdrawing from it and changing U.S. law so that it allows overseas interrogational torture to occur. Perhaps this would be subject to certain safeguards. Such safeguards might include permitting such techniques only when done by highly trained and specialized CIA agents and only when they receive written authorization from the President or, perhaps, cabinet head.

Interrogational torture is a type of defense. It appears to have worked in at least some cases. It is no more degrading than the death penalty and life imprisonment and less degrading than wartime killing. When used correctly, interrogational torture is disturbing but not obviously wrong.


The Objectivist said...

Note that John Yoo argues that the torture convention does not ban carefully calibrated interrogational torture for a number of reasons. Here are two of them.
1. The ban requires specific consent on behalf of torturers and this is not present.
2. The pain inflicted does not rise to that of death or organ failure and this is required for torture.

2 strikes me as implausible. I'm not sure what to think of 1.

The Objectivist said...

Note the trolley case arguably involves merely foreseen killing rather than intended killing, whereas torture involved intended infliction of suffering. This does matter if intention is relevant to the deontic (duty-based) status of an action. I suspect its not and hence this distinction does not matter.