The Problem with Assessing Torture
By Daniel R. Heimbach, Ph.D., Professor of Christian Ethics
A paper presented at the 62nd Annual Meeting of the Evangelical Theological Society in Atlanta, Georgia, on 17 November 2010
The United States has been debating the ethics of torture off and on for several years beginning on 28 April 2004, when shocking accounts filled the news of prisoner abuse at the Abu Ghraib prison in Iraq.1 In the aftermath, seventeen soldiers and officers were removed, of which eleven were variously convicted in courts martial, sentenced to military prison, dishonorably discharged, or demoted. And since that time the ethics of torture has been debated in presidential politics and at various conferences, summits and roundtables, resulting in several books.2
While no one defends what occurred at Abu Ghraib, the ensuing ethics debate has left the nation deeply divided, or at least confused, as to what moral boundaries apply to the way interrogators go about obtaining vital information from non-cooperating prisoners in a war against forces using terror tactics to implement Islamic sharia law and claiming totalitarian authority over everyone in the world. The division we face now has nothing to do with what occurred at Abu Ghraib, but rather concerns subsequent questions having to do with interrogating confessed or alleged terrorists such as those confined at Guantanamo. In this debate evangelicals are as deeply divided as others—a situation that leaves us open to suspicion that we could be shaping our ethics to fit political preferences rather than shaping our politics to conform with fixed ethical standards.3
I plan here to address this division that is compromising evangelical moral witness on torture and will suggest a way forward. In particular, I will argue there is nothing truly necessary causing this division, and will show that what appears to be contrasting positions is mainly a matter of semantics. That is, I believe it comes mainly from using a single word different ways and then supposing those who disagree are favoring positions they do not hold. But while a semantic problem stands in the way of addressing truly important questions lying beyond the definition of a word, solving this problem is easier said than done.
As a topic, torture is already so highly volatile all efforts to analyze the ethics of torture are in constant danger of sinking into a swamp of passion. Furthermore, the issue is complex, rendering it susceptible to idealistic simplification, and natural human revulsion toward brutality makes attending other critical aspects extremely difficult. As a result, much of what passes for moral debate on torture is greatly muddied by desires either to attack or defend particular politicians, agencies, or parties. Since I mean to reconcile unnecessary disagreement, I will not attempt either to criticize or defend any government action, I will not catalog the ways prisoners have been brutalized, and I will neither describe nor try to justify occasions I have felt shocked at what others have said or done. Rather I only aim to produce what both sides will consider a truly fair assessment, and that aim leaves no room for preening or accusation.
RECOGNIZING THE SEMANTIC PROBLEM
Richard Posner says that, because “the word torture lacks a stable definition,” moral evaluation is controlled by whatever “point along a continuum . . . the observer’s queasiness turns to revulsion.”6 Jean Bethke Elshtain says that, “if everything from a shout to the severing of a body part is torture, the category is so indiscriminate as to not permit of those distinctions on which the law and moral philosophy rest.”7 David Gushee acknowledges that, when it comes to “the exact kinds of acts that constitute torture, there is no single definition.”8 Tyler Wigg-Stephenson fears that, because assessing torture depends on first defining what it means, we may be forever “stuck in the same fruitless, frustrated (false) agreement in which we presently find ourselves.”9 David Luban notes that dictionary definitions of torture are all notoriously vague, being nothing more than “a list of equally vague synonyms,” and for this reason remarks that any effort “to wring greater specificity…out of a dictionary is, by the very terms of the problem, a cheat” serving “only to provide a seemingly-objective source for spinning the meaning of a word” any way at all.10 Finally Keith Pavlischek and I both criticized the Declaration on Torture issued by the National Association of Evangelicals in 2007 on mainly semantic grounds, with Pavlischek saying it failed “to define torture with any degree of precision,”11 and with my statement that it should not have divided evangelicals “into renouncers and justifiers” without defining the point at issue, because no evangelical anywhere “disagrees with rejecting immorality or defends mistreating fellow human beings made in the image of God.”12
What is interesting about these statements is how they come from both sides of the moral debate. Everyone truly serious about assessing the ethics of torture understands that we have a semantic problem. If evangelicals who are now seemingly divided into opposing camps can delay charging into moral battle, we may find we have more reason to cooperate than to attack one another.
ANALYZING THE SEMANTIC PROBLEM
The first most broadly opposed sense in which torture is being used employs what we may call the no means ever torture definition. Used this way, torture refers to rejecting anything that overcomes a person’s will to withhold information, no matter how mild. Torture in this sense has no minimal limitation. It has no minimum threshold as to what is disallowed. Andrew Sullivan takes this approach when he says, “what defines torture is not this or that technique” but rather is whatever brings prisoners to “the limit of their ability to withhold information.” It is anything however mild that causes “captives . . . to confess.”13 In other words, if a prisoner talks, he was by this definition “tortured” no matter what measures were used, however minimal.
The second still very opposed but more discerning sense in which torture is being used employs what may be called the evil means torture definition, a definition using torture to refer to any form of coercion that is never justifiable. This definition assumes coercive force but uses torture as a blanket term for treating fellow human beings in ways that can never be justified. It uses torture to indicate forms of treatment that are in themselves inherently evil and thus can never be right no matter what the circumstances may be. Torture in this sense is never justifiable because that is what torture means to the person using the term. Impossible-to-justify actions can never be justified, and many participating in the current debate are using the term in this sense. That is what Sister Dianna Ortiz means in saying torture is a “crime against humanity”14 ; it is what Douglas Johnson means in saying “torture is a crime against the human spirit”15 ; it is what Tyler Wigg-Stevenson means by saying torture is “to bend toward evil that which God has given for good” or is “to perpetrate the untruth that the nation is more than God has made it to be”16 ; it is what Glen Stassen means in saying “all torture . . . is a fundamental violation of God’s primordial will”17 ; it is what David Gushee means in saying “torture is always wrong,”18 even though he agrees that “interrogators should have some flexibility in applying pressure to encourage prisoners to reveal information that could save lives”19 ; and it is what I meant when I said “it is always wrong to apply force immorally, and if that is what . . . (is meant) by torture then I do indeed strongly oppose torture . . . under any circumstance and urge everyone else to oppose it as well.”20
Interestingly—and to the irritation of their critics21—this second sense in which torture refers to never-justifiable evil means is the same definition Jay Bybee used in claiming nothing less than pain “akin to that which accompanies serious physical injury such as death or organ failure” truly qualifies as torture.22 It is the same sense Marc Thiessen used in denying President George W. Bush ever authorized torture, because for Thiessen only killing a person “would be torture.”23
The third sense in which the term torture is used, which is somewhat less completely opposed but also more inclusive and most highly nuanced—employs what may be called the coercive means torture definition. In this case torture refers to any sort of coercion employed for the purpose of forcing resistant prisoners to reveal information needed to save lives. Here torture refers to something more than mild persuasion but extends to cover all sorts of coercive treatment. It includes not only forms that may sometimes be justified but also forms that can never be justified. By this definition, torture not only covers ways of treating people that are always evil but also covers ways that are not always evil—or at least are not evil all the time—and can therefore at times be morally justified under limited circumstances. And because this is what torture means to those using the term this way, it means that for them torture includes both never-justifiable as well as sometimes-justifiable kinds of actions.
This is what Charles Krauthammer means in saying “torture is not always impermissible” and “there are circumstances in which, by rational moral calculation, torture not only would be permissible but would be required.”24 It is what Richard Posner means in saying that, “if torture is the only means by which to save the lives of thousands, perhaps tens or hundreds of thousands, of people . . . (then) it seems to me, torture must be allowed.”25 It is what Jean Bethke Elshtain means by saying torture includes “extreme forms of physical torment” that are never morally justified, but also includes forms of “coercive interrogation” that “may, with regret,” be morally justified under very limited circumstances.26 It is what Albert Mohler means in saying “we cannot deny that there could exist circumstances in which . . . torture might be made necessary.”27 It is what Wayne Grudem means when saying “government has a right—even a moral obligation—within specified limits, to use such compulsion.”28 Finally, it is what I meant in saying that, if we use Krauthammer’s view of torture as applying coercion per se, then, after setting proper boundaries for moral use, we should without apology defend the obligation to exercise justified coercion within proper restraints.”29
The fourth and least critical sense in which the term appears in current debate is what may be called the any means possible torture definition. In this sense torture refers to justifying anything that works no matter how severe, distasteful, or inhumane. This approach, like the first, presents no limitations. But rather than having no minimum to what is disallowed, in this case there is no maximum to what is allowed. Although no one consistently defends this sense of the word, critics of torture fear it is what some defenders may be seeking,30 and it certainly is true that some arguing in favor of torture have at times made statements that seem to use the term in this fashion. It is evident, for example, in John McCain’s notorious remark that “You have to do what you have to do. But you take responsibility for it.”31 It is suggested in Richard Posner’s statement that, “in extremis,” one must apply “as much pressure as it takes.”32 And it is suggested in former Vice President Cheney’s remark, reported by Marc Thiessen, that he and former President George W. Bush “were determined (in the aftermath of 9/11) to do everything that we could to avoid and prevent any further attacks on the U.S….And we were prepared to take whatever heat was generated…(in order ) to prevail.”33
SOLVING THE SEMANTIC PROBLEM
The first important thing to note is how neither sense used by evangelicals is conceptually limitless, and this means of course that no evangelical is employing either of the extreme definitions. This is important to recognize because in the passion of moral battle it is easy to tar opponents with positions they do not truly defend. Evil means torture evangelicals should not associate other evangelicals of defending any means possible torture, and coercive means torture evangelicals should not associate other evangelicals with defending no means ever torture.
Next, I recommend that evangelicals debating the ethics of torture set aside the passion of moral battle long enough to notice how we are all dealing with much the same thing. I mean here that we are all traversing the same moral landscape. Everyone involved agrees that some coercive actions are inherently evil and can never be justified no matter what, and that other coercive actions, while regrettable, may be justified under limited circumstances.
If we avoid the word torture for a moment and simply focus on what evangelicals use to frame moral analysis, there really is far more on which we agree than disagree. Every evangelical assessing the ethics of torture, whether in the evil means or coercive means sense, shares a common set of convictions that include the following truths:
1. Techniques of prisoner interrogation range on a continuum from extremely mild
These points of agreement show that what divides evangelicals on the ethics of torture is more a matter of semantics than substance. We employ a commonly held moral framework that involves a continuum of interrogative means extending from extremely mild measures (such as delaying a meal or restricting visitors) to measures everyone agrees are never justifiable (such as killing innocent family members or rape). And we all understand that along this continuum, between measures that are never justifiable and those not worth disputing, there is a third category consisting of measures that need to be restricted as far as possible but that are sometimes justified under limited circumstances.
Whether and under what circumstances such measures are properly justified requires exercising relative moral judgment, a form of wisdom by which decisions are reached on whether or when to use measures that are hardly ever allowed and never preferred, but also are not in the category of means that are never justifiable. What I mean here is nothing more than what David Gushee means when acknowledging interrogators need “some flexibility in applying pressure to encourage prisoners to reveal information that could save lives,”34 or what Wayne Grudem means in saying government has a moral obligation “within specified limits” to use measures “in order to attempt to compel the terrorist to do what is morally right.”35 It is what I have meant in saying elsewhere that “we should without apology defend obligation to exercise justified coercion within proper restraints.”36
In diagram form, all evangelicals are assessing the ethics of torture by dividing the continuum of interrogative means into three moral categories as follows:
What this shows is that much of what passes for disagreement separating evangelicals on the ethics of torture is not substance but semantics; and where that is the case we should clarify terms and work together as allies rather than act like opponents. But, while clarifying semantics solves one problem, it also reveals other more complex and difficult problems. So while I do not think evangelicals are divided on the moral framework used to evaluate torture, I do recognize that we are genuinely divided and need to continue debating how the framework we use applies to particular forms of interrogation.
I mean by this that, while evangelicals are not really disagreeing on what frames moral analysis, we should not ignore two important further questions revealed by recognizing this fact. These further questions are as follows:
1. How to draw the moral boundary separating the never-justifiable evil means category from the always-regrettable-but-sometimes-justifiable category
GOING BEYOND THE SEMANTIC PROBLEM
Here I think the five reasons David Gushee gave in Christianity Today for rejecting never-justifiable actions are very helpful.39 I mean they should be considered, not for guiding the sort of relative moral judgment needed for deciding whether or when regrettable forms of coercion are sometimes justified, but rather for drawing the moral line for knowing when we are dealing with forms of treating people that can never be justified no matter what. On this question, it is theologically and biblically sound for evangelicals to hold that no means of coercion can ever be used that by its very nature either (1) dishonors the image of God, (2) oppresses the innocent, (3) deifies human government, (4) is arbitrary or sadistic, or (5) destroys the moral purpose of civil government. These five characteristics are all rather general and subject to interpretation, but they are also indisputably biblical. Therefore using them to draw the line on never-justifiable forms of coercion makes much better sense than using nothing more than subjective feeling or stopping at nothing short of death. But in answering this question, I think evangelicals should also accept and apply the portion of just war tradition that has long eschewed a list of measures judged to be inherently evil and therefore never to be justifiable no matter what, a list usually thought to include acts of rape, pillage, purposefully indiscriminant destruction (terrorism), purposefully harming or killing innocent third parties, sexual molestation, and desecrating holy places.40
The second question that comes from realizing evangelicals are all using the same framework for assessing the ethics of torture is how to decide under what circumstances otherwise-regrettable forms of interrogation may be warranted. Here the obvious answer is to employ principles of just war restraint that apply to assessing regrettable actions short of those judged to be inherently evil and never justifiable. Interaction between interrogators and captured members of an enemy force is itself a form of war involving actions threatening general or personal welfare, plans or information affecting life-or-death, which side wins or loses, and the need to evaluate if, when, or to what degree using force by one side against the other is justified. The principles of just war have been worked out for making morally responsible decisions where relative judgment is required in just this sort of situation. Thus applied to evaluating when otherwise regrettable forms of interrogation might be justified, just war tradition offers the following:
No evil means: Morally justified interrogation must never include any means so corrupt in itself as never to be justifiable no matter what. See the discussion above for determining where this moral boundary lies.
Just cause: Morally justified interrogation must always try to correct or prevent some wrong actually done or threatened by a prisoner or forces with which he is aligned. No coercive interrogation is justified only for fear of something never done or threatened, or only to express racial, religious, or cultural prejudice, or only to fish for information with no prior basis in fact.
Competent authority: Morally justified interrogation must be authorized by whatever authority is ultimately responsible for national security. No coercive interrogation is ever allowed by interrogators unaccountable to the higher authority.
Comparative justice: Morally justified interrogation must determine that stakes justifying coercive measures are more worthy than stakes justifying resistance. Justice is sometimes divided, and no coercion is justified for reasons interrogators themselves know are less worthy than reasons justifying a prisoner’s refusal to cooperate.
Right intention: Morally justified interrogation must intend to restore properly justified social order and nothing else. No coercion is allowed simply to punish,41 entertain, do research, send a message, or only to promote the self-interest of interrogators.
Last resort: Morally justified interrogation must never use any regrettable means except as a last resort. No coercion is ever allowed if the same result can be achieved other ways.
Probability of success: Morally justified interrogation must have some basis for believing the one interrogated knows the information sought. Coercive interrogation is more or less justified to the degree interrogators know a prisoner is withholding information. No coercion is justified on prisoners with no way of knowing the information sought, and little is justified where likelihood of a prisoner knowing desired information is low or uncertain. Concomitantly, much coercion may be justified to obtain information from prisoners who are known to have targeted information.
Proportionality of projected results: Morally justified interrogation must have reasonable hope of achieving a good worth more than whatever harm or loss may be suffered in obtaining it. No coercive means is allowed that intentionally causes more harm than good.
Proportionality in the use of force: Morally justified interrogation must never use more coercion than required to correct or prevent whatever wrong justifies interrogating a prisoner in the first place. No form of coercion is allowed that exceeds what justifies taking someone prisoner.
Discrimination: Morally justified interrogation must only use coercion with combatants serving a power threatening national security and public safety. No coercive measure may ever be applied to innocent third parties or to parties not themselves responsible for hazarding national security or public safety.
Good faith: Morally justified interrogation must always keep promises made to prisoners and must always treat them as human, not sub-human (i.e., as animals or devils). No coercive measure is ever justified that breaks promises or degrades humanity.
Right spirit: Morally justified interrogation must intend to restore properly justified social order and nothing else. No coercion is allowed simply to punish,41 entertain, do research, send a message, or only to promote the self-interest of interrogators.
I do not think that solving the semantic problem will or even should end all evangelical divisions; and I expect that in some ways solving the semantic problem might even increase the intensity of evangelical debate. But, if that happens, it will bring a new sort of intensity that produces better results than have been produced thus far. In fact, I do not think solving the semantic problem even requires that we all agree on a single definition of torture, only that we recognize semantic differences well enough to treat each other fairly and to cooperate in assessing the truly important questions that follow. If we ever reach that point, I think evangelicals should continue challenging each other very strongly on how best to answer the threshold-of-essential-evil question and the justification-of-regrettable-means question. I only hope that solving the semantic problem will allow us to lay aside acrimony, demagogy, prejudice, and politics and to focus instead on pursuing a shared goal—all done in a manner characterized as much by love as by reason, and as much be reason as by love.
Professor Heimbach serves as Professor of Christian Ethics at Southeastern Baptist Theological Seminary, Wake Forest, North Carolina. He has served as chairman of the Seminary's Christian Ethics Department. He presented this paper at the 62nd Annual Meeting of the Evangelical Theological Society in November, 2010.
A 1972 graduate of the U.S. Naval Academy, he served from 1989 to 1991 as the Deputy Executive Secretary and Associate Director of the White House Domestic Policy Council. From 1991 to 1993 he was the Deputy Assistant Secretary of the Navy for Manpower.
41. While Francisco de Vitoria in the 12th century argued that punishing a defeated foe is a properly warranted intention (cf. The Indian and the Law of War, III), Vitoria’s justification of punishment is not generally accept-ed as consistent with classical just war tradition which restricts proper intention only to restoring civil peace by stopping or undoing whatever wrong justified going to war in the first place. Punishing a defeated foe is more typically associated with the crusade ethic of war. But whether punishment is or is not a proper just war intention in the overall sense, it still has no proper place in determining justified forms of prisoner interrogation.
|Last Updated on Thursday, 17 February 2011 16:38|