I was planning to publish this review yesterday, but was distracted. Lo siento.
Although the issue of torture received a lot of publicity in the past few years, I thought the reporting was superficial and the issue was left unresolved. That is why I was pleased to stumble across a new book on the subject at my local library. By reading the book, I hoped to gain a better understanding, while incidentally answering two questions that the extensive reporting never managed to accomplish:
- What is torture?
- The U.S. apparently used several questionable “enhanced interrogation techniques.” Waterboarding was the example always mentioned; what are some other examples?
Because It Is Wrong is subtitled, “Torture, Privacy, and Presidential Power in the Age of Terror.” As the sub-title suggests, it discusses the threats to America posed by Bush-43 using torture and “warrantless surveillance of cyberspace” to fight the post 9/11 war against terror.
As luck would have it, Bush-43 discusses both torture and privacy in a chapter titled “War Footing” in his new book, Decision Points, which was published late in 2010. Because Because It Is Wrong was published in early 2010, the Frieds did not have the opportunity to address Bush’s contentions in Decision Points, but I got the impression that Bush did not make any new arguments in his book.
The Frieds are a father-son team. Father Charles teaches constitutional law at Harvard, while son Gregory teaches philosophy at Suffolk University. I like Charles because, just as I did, he initially supported McCain, but later felt compelled to shift to Obama because of McCain’s selection of Palin as his running mate.
Not surprisingly, Charles is the conservative in this tandem and Gregory is the liberal – you know the saying about a young conservative has no heart and an old liberal has no brain. Surprisingly, the tandem was able to write as a single unit until the final chapter, where they finally noted an issue on which they disagreed.
In the preface to Because It Is Wrong, the authors discuss a philosophy called deontology, which they describe as a belief that some acts are bad or good, regardless of their consequences. They call the contrasting philosophy utilitarianism – i.e., “no act is inherently right or wrong in itself and the standard of the right action must always be the net good produced or the net evil avoided.” The authors also admitted that they generally support the deontological position. You don’t have to be a rocket scientist to predict that their support for deontology would probably affect their analysis of torture.
The first chapter in the Frieds’ book is titled, “Absolutely Wrong.” As this suggests, it is essentially an application of deontology to torture. The authors note that very few philosophers are willing to hold that torture is absolutely wrong, often citing “ticking time-bomb” and kidnapper justifications. Through several pages of tortured reasoning, the authors ineffectively explain why the damage done to the human race by sanctioning torture in even those extreme situations is worse than the damage done by the time-bomb or kidnapper. “Survival is not the ultimate value, but how we survive, what we survive as, is.”
Initially, I found it impossible to consider anything to be “absolutely wrong.” Rather, I felt that the benefits could always justify the means. Then I thought about my congressional campaign and my position that it is always wrong to accept big campaign contributions. That seemed like a perfect example of a situation where I would rather lose than be compromised by the big contribution. Based on that example, I learned to appreciate deontology to be more practical and less abstract.
Bordering on Torture
The second chapter is titled, “Bordering on Torture.” Speaking of torture – what exactly is it? According to the authors, torture is worse than killing a person because torture can never be justified, whereas killing can – in self-defense, in war, and in capital punishment.
In defining torture, the authors first look to the Geneva Conventions and the U.S. Army Field Manual, which distinguishes permissible and impermissible interrogation techniques. A key requirement in the Field Manual is that prisoners and their guards must be treated the same way with respect to food, shelter, clothing, rest, and exercise. Permissible techniques seek to influence a person’s will, whereas torture seeks to destroy it. Examples of possible torture include:
- Water boarding;
- Stress positions;
- Electric shocks;
- Sleep deprivation; and
- Sexual humiliation.
The Bush-43 administration relied on memos from CIA lawyers to assert that cruel, inhuman, and degrading treatment was equivalent to conduct that shocks the conscience. Furthermore, “shocks the conscience” is a highly context-specific and fact-dependent question, and the Supreme Court has been unable to set forth a specific test. Inflicting pain amounts to torture only if it is “equivalent in intensity to the pain accompanying serious injury, such as organ failure, impairment of bodily function, or even death.” Dictum in one Supreme Court case referred to “exercise of power without any reasonable justification in the service of a legitimate government objection.” That sounds like utilitarianism, not deontology.
Regarding waterboarding, which the Bush-43 administration felt was by far the most severe of the enhanced interrogation techniques, it was authorized only when there was credible evidence that a terrorist attack is imminent and the suspect can help to defeat the attack. It has been used on only three terrorists and not since March 2003.
Regarding enhanced interrogation techniques, there are three categories:
- Conditioning techniques – control over basic human needs, such as clothing, food, sleep deprivation in shackles w/ diapers
- Corrective techniques – mild physical interaction, such as facial slap, ab slap, facial hold
- Coercive techniques – water dousing, stress positions, wall standing, and cramped confinement.
The Big Ear
The third chapter in the book is titled, “The Big Ear,” and it concerns the post-9/11 invasion of privacy. The authors noted that there has been more resistance to these efforts because:
- “The cynic might say that there is a privacy panic but not torture panic because ordinary citizens do not expect that they or anyone they know is likely to be tortured. But we all fear that the government’s big ear may be listening in on even our most intimate whispered conversations, ferreting out our smallest indiscretions, most trivial peccadilloes…. After 9/11, the government, in its desperate search for knowledge, both tortured and eavesdropped in violation of the law, but it is grotesque to equate the two and to agitate more against eavesdropping than against torture.”
Although some of us aren’t very worried about our privacy being invaded, the authors forcefully argue that people in general throughout history have held dear the right to have many parts of their lives shielded from public inspection – kind of like saying that we all have huge dark sides that need to be kept from the world.
Each society must find a balance between enabling government to prevent and detect evil and leaving individuals “some substantial domain somewhere to which he can safely withdraw, free from unsought intrusions…. Political wisdom guides how we adjust those boundaries given changes in customs and technology, but the touchstone must always be a determination to balance the state’s need to know with the state’s inability to know perfectly and so its potential to do injustice.”
No Beginning or No End
The fourth chapter is titled, “No Beginning or No End.” The authors noted that Bush-43 came into office with no sense of personal risk – only the risk of failure of “an amiable domestic project.” But because of 9/11, he suddenly faced great “moral danger for him, his officers, and the American people.” The authors equated the moral danger confronting Bush-43 with a similar danger faced by Jefferson in 1807 (the Chesapeake incident) and Lincoln in 1861 (suspending habeas corpus). Jefferson and Lincoln intentionally broke the law, just as surely as Bush-43 did with his approval of “harsh interrogation and ubiquitous electronic surveillance.”
Learning Not To Be Good
In the fifth chapter, titled “Learning Not To Be Good,” the authors place Bush-43’s illegal surveillance in the same categories as Jefferson’s and Lincoln’s law-breaking – i.e., acts that are not inherently bad, but which could have been authorized by Congress. In fact, Congress did retro-actively approve all of the actions. Thus, the acts were not dangerous to American government because the executive realized he was making an exception that was necessitated by an unforeseen emergency. This type of conduct, according to the authors, is analogous to the best tradition of civil disobedience.
By way of contrast, Bush-43’s authorization of torture has not been authorized by Congress, and there was no attempt to justify it. Rather, it was hidden from the public. Furthermore, it can never be authorized because it is inherently bad.
I noted earlier that the authors parted company only at the end of the book. The issue that separated them was the potential prosecution of the Bush-43 administration for the torture committed on its behalf. Author Gregory said unequivocally, yes, to restore America’s moral integrity. Author Charles said he wasn’t sure. Although he would not issue a pardon, he was very reluctant to create a precedent for “the criminal prosecution of the defeated administration.” (This seems to overlook the fact that Bush-43 was never defeated.) Charles thinks that such a decision, based on prudence, discretion, and Aristotle’s epieikeia, should be modeled, not after Cheney, but Nelson Mandela.
Bush-43’s perspective concerning torture and surveillance was addressed in a single chapter titled, “War Footing.” His primary defense for his actions, especially the warrantless surveillance, was the congressional war resolution passed on 9/14, which authorized him to use all necessary force against persons and organizations that were involved in 9/11 to prevent any future acts of terrorism. He decided against going to Congress for timely approval of the surveillance because legislative debate would have exposed our methods to the enemy. Eventually, in 2006, Bush-43 started pushing for modernization of the Foreign Intelligence Surveillance Act (FISA) to conform to the actions he had already taken, and this modernization was finally secured in the summer of 2008.
Congress also authorized extensive government snooping in the USA Patriot Act. Although Attorney General Ashcroft took the lead in drafting the bill, people in Congress titled it, and Bush opposed the title because he didn’t want to suggest that those in Congress who opposed the act were unpatriotic. That viewpoint runs counter to the caricature of Bush as someone who uses patriotism as a divisive issue.
Regarding torture, Bush-43 doesn’t spend any time on legalities other than to declare that DOJ and CIA lawyers conducted careful legal reviews and concluded that the enhanced interrogation techniques were legal. In fact, Bush-43 says that he disapproved of two CIA techniques “that went too far,” even though the CIA counsel had concluded they were legal. I wonder what those techniques were.
Bush-43 humanized his decision on torture by noting that, when he personally authorized the waterboarding of Khalid Sheikh Mohammed:
- “I thought about my meeting with Danny Pearl’s widow, who was pregnant with his son when he was murdered. I thought about the 2,973 people stolen from their families by al Qaeda on 9/11. And I thought about my duty to protect the country from another act of terror.”
Although the Frieds may have thought that 9/11 had placed Bush-43 in a position of great moral danger, it seems that Bush-43, like Harry Truman with the atomic-bomb decision, is not losing any sleep over his decision to waterboard Khalid Sheikh Mohammed.