On Torture

 by David Yerushalmi  

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Failure to permit the torture of terrorists who harbor valuable information is morally reprehensible and intolerable.

In this essay, I will make a preliminary effort to open the discussion of torture and its use by the US to the light of reason and good sense.ⁱ  In this effort, I will not examine the “law” on torture because that would be an exercise in futility and fatuity. It would be futile because the Law of War, which more or less controls the use of torture for American military personnel, is a vague, ever shifting sand dune in the middle of an intellectual desert. By desert, I don’t mean to suggest that this is a desolate area of the law; it is most certainly populated by literally thousands of provisions, definitions, jurisdictional layers, and mountains of legal treatises. It is a desert, however, because there is very little over-arching conceptual integrity to the laws themselves and their purposes. It is more like a piling-on affair where the more restrictions the better, with little analysis for how, why and when certain provisions should apply relative to the most important issues of the day — defense of the nation and national existence.ⁱⁱ

To delve into the “law” of torture would also be mere fatuity. To understand whether the US should torture enemy combatants or even enemy soldiers held as prisoners of war will never be answered by looking at the positive law on the subject. The law will only describe what is today “legal” or “illegal,” and as we will show throughout this essay mostly by implication, it doesn’t even do that very well or unambiguously. Our focus here is on what should inform the law. I want to investigate in this essay, at least preliminarily, whether we ought to allow torture or prohibit it and under what circumstances. For this discussion, the “law” would be an adjunct at best, a hindrance at worst.

THE DISCUSSION:

Why should torture be outlawed?

The justifications for outlawing torture,ⁱⁱⁱ the purpose of which is to gain valuable information,^iv boil down to moral and utilitarian ones. On the moral side, we hear of two positions. One is that we are a society, and even a civilization, that simply does not believe in causing such pain and suffering no matter what the benefit. There is some moral line, vague as it may be, known to the common man via his sensitivities and sensibilities for decency which we just should not traverse. The second moral position boils down to the Golden Rule. Its positive formulation is, “Do unto others as you would have them do unto you,” and its negative formulation (sometimes referred to as the Silver Rule) is, “Do not unto others as you would not want done to you.”

A moral justification: The Decency Argument.

The most oft-repeated moral argument we hear why we should not torture our enemies is that we don’t wish to stoop to their level. This is expressed also as the Loss of Moral High Ground argument. “By engaging in the violence and torture that the terrorists use against us, we become like them and therefore no better than them. We must fight to preserve our decency and resist at all costs the tendency to cede the moral high ground.”

But in such a discussion we must first understand the purpose or underlying predicate of this position. To begin, we make it as a nation-state or as a People. In other words, America – its very existence — is a Good worth preserving because it is ours. If we in fact fail to maintain our own moral high ground, that is certainly reason to improve and to strive for greater and higher fulfillment of our goals and self-imposed standards. But relative to others, to our enemy, America is an absolute Good. If it were not so, we would be taking the foolish and suicidal position that our national existence ought to be dependent on our goodness relative to others. For those who see America and its national existence as a relative good, challenging national existence turns out, given an unfavorable accounting compared to some other existence, quite destructive.

What if a better group of men were to come along and convince a slim majority or even a large minority of Americans that America is in fact evil and not worth preserving in its present condition? These converts (or traitors) would most assuredly work to undermine our national existence and seek what they perceive to be the higher good. This is, by the way, what the Left and the Elite do every day. Because our national existence, our Peoplehood, is to them not an absolute Good which we must fight to preserve at all costs relative to the other nations of the world or, more specifically, to the international community or “world of nations,” they are prepared to accept some higher good – meaning the defeat of our national existence as it exists today for something better. That something better usually looks and acts like a one-world state where no man is an “other” to any other man. The borderless and bigotry-less world. Citizenship, where men are afforded benefits in vastly varying degrees based solely on the arbitrariness of borders and birth, is to these Elites the height of immoral and ideologically unacceptable discrimination.^v  For these Elites, the world state is a priori a higher good than the good that America represents.

Given the moral (or more properly the ontological) predicate any nation must begin with — that its national existence is an absolute Good — let’s examine the Loss of Moral High Ground argument. The Moral High Ground argument is based upon the position that there are some things a nation or People will not do to preserve the absolute Good of its national existence. This means, in effect, that while national existence is an absolute Good, there are even higher absolute Goods, a contradiction. The resolution of the contradiction reveals the lie. National existence for the Moral High Grounders is not an absolute Good.

Now it is certainly true that a nation might, and indeed ought to choose to perish rather than violate its own absolute Good of national existence. What I mean by this is simply that we would not violate the Whole of our national existence in order to save some Part. The Whole of national existence is the political order and ordering of a People. It is the Gestalt of a nation’s existence – more than the sum of its individual Parts. It is more than its history, its founding myths, its laws and culture, and even more than its citizens. But it is certainly not less than its Parts. The Part would be some physical subset, for example.^vi

So it is that if America were confronted with a nuclear armed Islamic superpower which agreed to a peace treaty and even disarmament on condition that America sacrifice some segment of its people, say all of its devout atheists, the proper response would be a nuclear fight to the finish. This was the Cold War. We essentially told the Soviet Union that we would rather destroy the world, ourselves included, rather than live as a Marxist tyranny.^vii

Certainly, then, killing bad men who seek our destruction is a just and good act. It is the defense of the Whole. It is in fact demanded by decency. This is what happens in war. Similarly, war results in terrible injuries which will cause the enemy combatants to suffer miserably for years to come. Indeed, even the non-combatants who belong to the nation or people with whom we fight in war suffer death and injury so that we might preserve the absolute Good of our national existence. “Collateral damage” is just another way of saying that our national existence is a Good superior to the innocent “others.”

Given this, what possible moral position, what High Ground, is staked out by the anti-torture crowd? In a just war for national existence, discriminate and indiscriminate killing and maiming during amorphous battles, skirmishes, and aerial bombings is a given and a moral necessity. To be clear, it is a moral, existential, and ontological necessity because without it there is no national existence and the good men – our fellow citizens — cease.

What then is the logic that we ought not to save the lives of dozens, or thousands, or even millions of good men because it will involve pain and death to our sworn enemies? What do we lose when we use tortuous methods on bad men for the obvious higher Good of preserving our national existence and the lives of good people?

And, quite obviously this is not an Ends justifies the Means argument. The means themselves are a good in the just war applied to evil men seeking to do us and our nation harm. To allow evil men who wish our destruction to retain information that might save the lives of good men would itself be evil. Torture is no more a tolerated “means” than dropping a bomb on an enemy stronghold in an effort to provide air support for the ground troops. In the former as in the latter, it is the use of pain and death in a situation where the outcome is almost a certainty in order to save the lives of one’s own soldiers. A fortiori should we not use such certain pain and death to protect our citizens from evil men? Failing to take such action would be immoral. Failure to use torture against bad men conspiring to do evil with other bad men is the worst kind of moral ambiguity because it denies the Good of national existence and of the good men for whom the war is being fought in the first instance.^viii

To end, if torture used to acquire information of the plans of the evil deeds of bad men is prohibited on moral grounds, the use of death and pain in war is no less wrong if not more so given its greater indiscrimination. The modern “moral” arguments against torture are in fact not moral but immoral. And they are so because they seek to relativize, if not to eliminate, the absolute Good of national existence. What do these arguments put in the place of the absolute Good of national existence? Rights.

And what are these rights? A right is nothing more than a legal construct, not a real thing, to protect a person’s desire or wants. But the rights that the anti-torture crowd would place in front of existence simply – that is actual American lives — are not just any rights. But the claim that a bad man’s desire to be free from pain and suffering even as he seeks to destroy our nation and murder our children is a right that takes priority over the lives of good men. Is that possibly true?

A moral justification: The Golden Rule.

We now take up the second moral justification. As we know, many religions speak of the principle known in the West as the Golden Rule.^ix  The question we must ask is does the Golden Rule apply to one’s enemy who retains information that might, if retained, cause you and yours pain and suffering, and even death? Is the rule universal and unconditional?

In Judaism, the rule is neither universal nor unconditional.^x  As made explicit in footnote 10 below, the well-known Jewish versions of the rule require Jews to treat only their “fellow” Jews and the peaceful, law-abiding non-Jews^xi in such a brotherly way. There is absolutely no rule in Jewish Scripture or in Jewish Law that requires the application of kindness of any kind or even “decent” conduct to someone who wishes to do harm to the Jew. Indeed, when the person is within the sovereignty of an authentic Jewish nation-state (i.e., recognized as such by Jewish Law), or captured in a just war,^xii his failure to affirmatively embrace a peaceful co-existence with the Jew based upon the conditions imposed by Jewish Law will be cause for his immediate death.^xiii

While I claim no special knowledge of or expertise in Christian applications of the Golden Rule, I will only tentatively offer a few observations, preferring instead to encourage knowledgeable Christians to contribute to this discussion. After less than a thorough review, I find in the Christian Bible three specific references to what amount to the Golden Rule.^xiv  In two instances, the rule is applied to man universally and in one to a man’s neighbor. It is clear in this sense that the teachings of Christianity do indeed universalize the rule in ways the Jewish Bible and Law never contemplated. This of course is not surprising given the universality of Christian theology.

Let’s assume for the sake of this discussion that the Christian Golden Rule is indeed trans-national and to be applied universally to all men everywhere and at all times. The Rule, in the Christian format, requires me to do to other men as I would have them do to me. Clearly then, if I were acting as a good, moral, and sane man I would want others to treat me well and allow me to live my life accordingly.

Would it not also be the case, that in my good, moral, and sane moments I would conclude and desire that if I were to suffer a moral or mental breakdown and pose a danger to other good men, that good and sane men would act to stop me? That is, I recognize now in my good and sane moments what behavior is good and who is good. If later I lose that judgment and think erroneously in opposite, bad ways, I would presently wish and even instruct others to save me from my future bad acts.

Further, I might wish that to the extent that I could be stopped from hurting others with minimal suffering on my part, that would be preferable, especially if there were a chance for my moral or mental recovery in the future. But, at the same time, I would not want my own breakdown and the danger I would pose to wholly innocent and good people to be artificially minimalized, thereby putting those other good and moral people at any substantial risk.

Finally, if the possibility existed that I might lose my standing as a good man and join with other bad men to hurt good people, I would want my fellow good men to act at such future time to prevent me from successfully conspiring to hurt the good men. And, if I thought I might have information in the future about bad acts my co-conspirators were going to carry out in an effort to hurt the good men, I would want to make every effort now during my sane moments to instruct my fellow good men to torture me if necessary in order to protect and to save the innocent and good lives. In my good and sane moments, I would even instruct the other good men to kill me if that would, because of my bad behavior, save lives of other good people.^xv

It would seem then that a universal Golden Rule not only allows for torture, it demands it in certain circumstances. How much pain and suffering might be called for would be related to the harm that would result if the information was not extracted from the bad man, the amount of time the good men had to extract the information before something bad happened, and the likelihood that the pain and suffering would lead the bad man retaining the information to disclose it. We might think of it as a calculus. As the likelihood that the bad men will cause pain and suffering to the good men increases, and as the anticipated harm caused by the bad men increases, and as the likelihood that the bad man retains information necessary to stop the future bad acts increases, and as the importance of that information the bad man now retains increases, the greater the harm (i.e., torture) that ought to be applied to extract that information.^xvi

What have we done here to the Golden Rule to arrive at this conclusion? The obvious and that which people today are not doing when they think about torture or discuss it. The Golden Rule was never designed to be applied from the perspective of a bad man. The Golden Rule is a rule of decency and common sense, which is precisely why so many religions and cultures over the ages have adopted it as fundamental. It is a rule that presumes a common decency shared by good men of good will. To say no pain and suffering shall be used against bad men who intend to hurt good men is precisely indecent and nonsensical.

If it were so understood, the following case would result. If X was a sadistic murderer, X would not want someone to prevent him from killing other people. But suppose X were walking down the street and he saw Y killing a good man. Assume further that X could prevent the murder with but a thought. If we apply the Golden Rule based upon X’s evil predicate, we would not want him to interfere and save the good man. But that would be a bad and indecent result. Instead, we want the Golden Rule predicated upon the desires of good, moral, and sane men who share our sense of decency. Without that predicate of shared decency, the rule would itself be indecent and a disaster.

Thus, Osama bin Laden, and all of his ilk, if they were good, moral, and sane men, would want us to torture them to discover their networks of sleeper cells which operate in the US with plans at the ready should we be fortunate enough to capture them alive. That they are bad men and would resist such techniques merely serves to prove the point of the rule.

The utilitarian justifications:

The utilitarian arguments used by such men as Senators McCain, Warner, and Graham and retired chairman of the joint chiefs and former secretary of state Colin Powell are so patently illogical as to require but brief mention. One position is that we must agree to treat our prisoners of war with kid gloves because if we do not, our enemies will use this as a license to maltreat our US soldiers when held in captivity. The problem is that this flies in the face of the reality. Do the terrorists protect and safeguard our US soldiers captured in the war because we treat their captives so well?

Asking the question out loud actually makes it the joke that it is. To begin, the Muslims against whom we are warring are ruthless, bloodthirsty and unrepentant. They murder and torture viciously our soldiers, our civilians and even their fellow Muslims. Moreover, even the 5-star accommodations at Guantanamo are considered an absolute affront by the terrorists and grounds for ever greater abuse of the infidel prisoners under their control.

The anti-torture utilitarian moralists proffer absolutely no empirical evidence that the terrorists will treat our soldiers better because we treat theirs so well. Indeed, the evidence is overwhelmingly in the other direction. The better we treat them, the weaker they perceive us to be.

Further, international law at its founding understood that the Law of War must be based upon mutual agreements between the nations of the civilized world since there were no antecedent commitments that bound nations to a single concept of war. Like any contract or agreement, without a “meeting of the minds” over the very subject matter of the agreement, there simply is no binding agreement. To insist on one unilaterally would be idiotic and futile. So it was that under the Geneva Conventions and its antecedents, the “contracting parties” were bound to one another but not to non-contracting parties. A well-known exception to that rule relating to the treatment of captives is Common Article 3 of the Geneva Conventions. But even here, Common Article 3 only applies to non-contracting parties if the warfare is not a war between nations (i.e., international) but rather a civil or intra-national war. (See here for a good, short and not too legal discussion of this.)

But all of this discussion must be had in the context of the moral discussion above. As we’ve noted, it is simply immoral and indecent not to torture a bad man who wishes to do your nation harm when you might gain information to save the lives of good men. How could it be otherwise? Now, the utilitarian wishes to step into the middle of that discussion and take the position that whatever we might lose by giving up information gained from torture of bad men is overwhelmed by the utilitarian argument that our failure to treat terrorists well will result in terrorists treating our captive soldiers badly.

For this argument to overwhelm the decency and imperative of the moral arguments in favor of torture, the utilitarian must show persuasively that the lives of good men to be lost as a result of our failure to extract the life-saving information through torture are expendable and that the treatment of our captive soldiers is more important. But if it is a balance between a soldier’s treatment and the lives of good men as civilians or winning the war and preserving national existence, there can be no balance. Further, given the Muslim terrorists and their utter disregard of any of the decencies and civilities of life, the argument trips into the pit of moral vacuity before it leaves the gate.

And this brings us to the second utilitarian justification, which is an attempt to save the failure of the first. Here the utilitarian pipes up and claims that torture does not work and therefore torturing bad men never or rarely saves lives of good men.

They repeat this over and over. Know it is a bald-faced lie. It can be nothing else.^xvii

US, Israeli, British, and French intelligence services have used torture of varying degrees quite successfully for years. The Soviets and Communist Chinese most assuredly. Ask Vladimir Putin, now President of the Russian Federation but former head of the FSB (formerly the KGB). How do the utilitarians suppose the Egyptians, Jordanians, Saudis, and Pakistanis obtain the information necessary to thwart the never ending assassination attempts on the leadership of those countries? The Israeli Supreme Court, one of the most liberal in the West, has actually upheld minimal levels of torture, what is euphemistically termed “rough interrogation,” on the actual evidence that Israeli intelligence services used these techniques to stop real terrorist attacks in real time — the classic ticking-bomb scenario where Israelis capture one of the cell members and the others are literally on their way to the attack site.

President Bush made clear in his 9-11 remarks about the transfer of terrorists from CIA off-shore prisons to Guantanamo that these techniques have worked. Critics try and nit-pick but it is simply too counter-intuitive and too contrary to the hard evidence to suggest otherwise.

So why do so many in the military argue strenuously that torture does not work? The answer is twofold. One, there is an institutional bias in the military intelligence services and officer corps against torture. That is what they are taught as textbook fact irrespective of the evidence. And they have been taught that precisely because the military brass want to drill it into their interrogators’ heads that torture is futile; so don’t even try. This of course has been a pedagogical defense mechanism used to train US military interrogators to prevent the violation of the Geneva Conventions when dealing with real soldiers as prisoners of war.

The second reason for the fiction that torture does not work is based upon the argument that when the tortured captive gives up information, it is usually bad and false information. Why? The torture victim will say anything to stop the pain. This is undoubtedly true in some cases but it is only a fraction of the reality. Interrogation seeks to gain essentially two types of information. One is information that the interrogator knows or suspects to be true but he is seeking a confirmation from the captive. The classic case is the interrogator extracting a confession for a known crime or for information that a terrorist was a member of a known terrorist cell. Even if the man being tortured is not guilty of the crime or the association, he most assuredly will admit to it if he believes that admission will stop the torture. But interrogators, especially from the intelligence services, rarely if ever rely on a single admission because their interest is not in obtaining a guilty verdict in some future trial but rather valuable information which will lead to further captures and interdictions. Professional interrogators know how to apply validity and reliability checks to the information using answers to other questions and information they already know.

The second kind of interrogation seeks to access information for current networks, activities and plans. Here it is not an admission of a prior act or association but information that will be checked and verified against other information and which will ultimately be verified in the field with an operation if the information is actionable. Again, there are entire schools on how to calibrate the integrity of the information of this type. One example is to get the captive to give up some relatively minor piece of information while making him believe that you think it important. If the information checks out, the ladder is lowered to allow the captive to continue to reduce the pain of the interrogation by giving up more valuable information. The techniques are endless and the methods quite reliable.

Does this mean we won’t get bad and false information? Of course not. But that is what intelligence is all about. To filter and assess. The results of interrogations are just one valuable component.

Finally, even if torture only worked in the rarest of instances, and it saved lives, would it not remain morally indefensible not to use it on bad men to save good men? The utilitarian is still left with that fundamental question. His only answer — that the Taliban and the Iraqi insurgents will treat our men better when captured if we treat theirs well – is demonstrably false. The utilitarian’s fallback position, and it is really a desperation to avoid the pit of moral vacuity into which he is plummeting, is that we will lose the respect of real nations (like France? Iran? Russia?) and risk retaliations against our soldiers in the event of a war with them.

But again, what exactly does America risk while it protects its soldiers and civilians with valuable information? The hue and cry from our faithful European allies? This is the “Good” that overwhelms the gathering of information to save US lives?

CONCLUSION:

Failure to permit the torture of terrorists who harbor valuable information is morally reprehensible and intolerable. The only arguments available to the anti-torture juggernaut is a two-pronged empirically based utilitarian argument that (a) terrorists will treat us better if we treat them better and (b) torture does not work. The first prong is demonstrably false and the other so overwhelmingly contradicted by the universal successes of intelligence services and common sense that it is self-evidently a desperate grasping at straws.

Endnotes

i. If you have watched Bill O’Reilly on television, listened to him on the radio, or (as I have) read any of the transcripts of his television programs recently, Bill O’Reilly, the popular Fox News No Spin pundit, has been on a mission of late. He wants to know from all sorts of people, such as legal experts and left-wing anti-torture advocates, why putting someone in a cold room and forcing them to listen to some vile rock band is so bad. Even more, he demands to know why it should be illegal if it works to save lives. See here, here, and here for some examples. And, just the other day, Hudson Institute scholar Richard Miniter wote in the New York Post that America was being too kind in avoiding harsher techniques. While I certainly commend Messrs. O’Reilly and Miniter for their efforts to flush out some of the absurd arguments against the use of certain techniques labeled torture, given O’Reilly’s role as pundit, and populist pundit at that, and Miniter’s role as a “scholar,” there is no real hope that they or anyone in the mainstream media or world of academia might make an effort to seriously confront the question of “torture” and its use in the current war against Muslims who want us dead and our civilization destroyed.

That is in the main because there is a whole area of the “torture” discussion that we are not even permitted to have. What O’Reilly calls “over the top.” Exposure to cold, rock bands, sleep deprivation, maybe even waterboarding is fair game. But real honest to goodness infliction of pain and suffering is just a priori wrong and no “responsible” person would even discuss it. We disagree.

ii. Just a listing of the more relevant statutory provisions begins to tell this story. So we have, in order of importance, the Uniform Code of Military Justice (UCMJ, arts. 77-134), rules, regulations and executive orders promulgated thereunder, including Chain-of-Command Rules of Engagement (reviewed and approved by the Joint Chiefs of Staff), The War Crimes Act of 1996 (18 U.S.C. § 2441), the federal anti-torture statute (18 U.S.C. § 2340A), and the Military Extraterritorial Jurisdiction Act of 2000 (18 U.S.C. § 3261). We should also include the Torture Victim Protection Act of 1991 (28 U.S.C. § 1350).

Much of this federal statutory law incorporates by reference the standard written and even customary international law of war. This area of the law includes most specifically the Geneva Conventions, culminating in the Fourth Geneva Convention of 1949, to which the US is a signatory and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ratified by the US in 1994 (but subject to US reservations that “enables” the law for the US only when Congress passes specific enabling legislation, which also provides the definition of torture). The ambiguity of international law is made even more ambiguous because the US can be assumed to have accepted treaties it did not even sign or ratify. How does that work? One of three ways. One way is that the US in fact acts in accordance with some treaties over a period of time and desires to interact with other countries as if it were bound. A kind of de facto treaty. A second way is that the US makes no conscious policy to be bound or to follow the international conventions in practice, but the courts and legal commentators begin to suggest that whether consciously or not, the US has been in sync with the international law and that is what the law should be. And finally, the US has no such policy, either de jure or de facto, and in fact formulates a policy to preserve its freedom of action in a given domain of international law, but the courts impose it upon the US because “it appears” that is what the government wants. It “appears” that is what happened when the Supreme Court held in the “plurality” (i.e., not majority) portion of the opinion by Justice Stevens in the now oft-discussed Hamdan case, that Article 75 of Protocol I to the Geneva Conventions of 1949, adopted in 1977, was applicable to US military tribunals at Guantanamo Bay even though the US never ratified the Protocol. The Court, with a logic almost derived Through the Looking Glass, held that Protocol I applied to the US because “it appears that the Government ‘regard[s] the provisions of Article 75 as an articulation of safeguards to which all persons in the hands of an enemy are entitled.’" (Hamdan v. Rumsfeld, 548 U.S. ____ (2006), at pp. 70-72.)

But of course the Government did not regard it so, but no matter. That one little phrase by Stevens was enough; it amounts to the whole justification for applying this provision of international law to military tribunals established by the Commander-in-Chief to try enemy combatants. And, it was one of the key justifications for a plurality of justices to rule the military tribunals illegal. We might note, as it were in passing, that these tribunals were for bringing to justice foreign enemy combatants who do not belong to any national army, who wear no uniforms, who abide by no rules of war, who recognize no rules of war but their own Islamic ones, and who extend no similar protections to our soldiers and civilians.

If you are confused, don’t fret; the best lawyers in the land cannot agree on this stuff. Just read the convoluted separately filed opinions in the Hamdan case and some of the legal commentary Hamdan has spawned in its relatively short shelf life.

iii. For our purposes, torture is the use of techniques which would cause a person in captivity to suffer physical or non-physical (i.e., psychological) pain. Since all captivity might fit within this broad definition, we limit our discussion to a level of pain that has a reasonable likelihood to cause a normal person under the objective conditions of the captivity to suffer permanent physical or non-physical harm.

We begin to see the difficulty of this concept of “torture” right from the start. The “law” struggles almost nonsensically with this definition. Whether the Geneva Convention Common Article 3’s definition (“[v]iolence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; …outrages upon personal dignity, in particular humiliating and degrading treatment”) or the U.S. anti-torture statute’s (“act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control”), the definitions merely beg the many questions implicit in the definitional one.

For example, to define torture as “cruel treatment and torture” gets us nowhere. What is an “outrage upon personal dignity?” Certainly solitary confinement is an outrage upon a decent person’s personal dignity but is it for a mass murderer or enemy combatant? Is capital punishment torture? It is the ultimate outrage upon personal dignity. But does a terrorist like Osama bin Ladin have any personal dignity against which to commit an outrage? The way the military ought to treat a non-combatant civilian who is held in captivity to allow soldiers to enter into an area and search out and destroy enemy combatants should most certainly be different than the way the enemy combatants are held once captured. The latter deserve far less concern for their “personal dignity” than the former.

Under our proposed definition, the very captivity under which a prisoner is held, if he is held long enough even under the best of conditions, would most certainly cause some permanent psychological (if not actual neurological) harm to a normal person. But as the federal anti-terror statute attempts to get at, if the captivity or other punishment is “incidental to lawful sanctions,” it should not be torture. But once again, this caveat merely begs the question. Just because a sanction is lawful, meaning created and applied in a procedurally “legal” way, this does not resolve the underlying issue. If it did, the Nazi concentration camps might have escaped the definition of torture. If “lawful” means something else, like whatever the international community says it is at whatever time there is an international war crimes tribunal, we have gained no insight, other than the typically banal insights of any positive law theory, into what torture is and when, how, and why to sanction or prohibit it.

So we leave this “definitional” discussion with at least one understanding. Other than some broad standard that has no precise meaning, there simply is no good definition and we will not attempt, beyond our preliminary one above (which itself is inadequate), to give it one. This problem underscores something very wrong with the concept of outlawing “torture.” Any definition of torture in a criminal statute, as opposed to specific examples of techniques used under specific circumstances, will lead to vague and, as we will argue below, immoral and irrational condemnations of legitimate methods of interrogation and control.

iv. Torture is said to arise in two circumstances. (We shall ignore a third – sheer sadism.) One is by one party, usually a government agent or someone acting “under the color of law” to control someone else’s behavior. This “control” might be for the purpose of controlling the person being tortured or as an example for others about what lies ahead if they misbehave. This “police” method is used by tyrannical dictators and benign democracies alike. Saddam Hussein of course used torture and murder to eliminate and to control and subdue people he felt posed a threat to his rule and used these methods to show the general population what was in store for them should they think twice about engaging in bad behavior.

In free democracies, police also use this method, albeit in a milder, yet still forceful way. Thus, when police face illegal and potentially dangerous protests or demonstrations, they will often use very harsh methods to control the crowds as a way to threaten and to persuade the other less daring demonstrators to desist and to leave the area. The use of riot police in full regalia, frighteningly large horses, tear gas, quick arrests of the leaders and “early movers,” and even the rubber bullets used by Israeli police are examples.

The second purpose for torture is to gain information. The information sought might be a confession about a past crime or activity, or information about a network of bad guys, their methods, and even their plans of specific ongoing or future operations. The torture we most often refer to when speaking of the military is this latter type but as we see in Guantanamo and in Abu Ghraib, controlling bad men is not always an easy affair and sometimes pain and suffering are the only effective control mechanisms available

In this discussion, we will only be dealing with the second purpose – gaining valuable information. The examination of the use of torture for controlling bad actors or potentially bad actors is for another day. But having put that aside for now, much of our discussion here will still be useful and even valuable for that subsequent one.

v. Examples abound. The media’s determination to expose our national secrets without the care or concern for the circumstances to our safety and national existence; the outrage over the NSA surveillance program as an “affront” to civil liberties as if there could be a “civil” anything without first a national existence; and even the argument that torture is never acceptable no matter how many lives are at stake.

vi. This was the basis of President Abraham Lincoln’s brilliance and his philosophic defense of the Union.

vii. And this stand for the absolute Whole of national existence is also what distinguishes the Islamic super power extortion case referenced above in the text accompanying this footnote from the use of drafted soldiers to fight on behalf of national existence — the absolute Good. A nation stands an army to fight, whether voluntary or involuntary, on the grounds that it seeks the best warriors to preserve the Whole. Soldiers are part of that Whole even as they risk their lives in battle no less than policemen. A nation wages war to protect the Whole or absolute Good of its national existence because not to do so means non-existence. A soldier might give up his life in battle preserving the Whole but he does so not as a Part but as the Whole. The case of extortion, however, is the forceful external claim (i.e., the Islamic nuclear superpower) that presents itself to say precisely that the Whole of the victim’s national existence is not whole, but only a Part because the extortionist nation has occupied the place, or some large part thereof, of the Whole.

vii. We witnessed this moral failure in the Israeli Peace Process with every newly signed agreement and with every territorial concession. Each time a Palestinian terrorist would come into Israel as a day laborer and use a gun (provided by the Israeli government to the Palestinian Authority as part of the “security arrangements”) to kill another Jewish family, Prime Minister Rabin would go on television and tell his people that notwithstanding the latest murder of an innocent Israeli family, the Peace Process would continue. Why? These Israeli citizen deaths were “victims for peace.” The Hebrew he used literally means “sacrifices for peace.” But a government has no right to “sacrifice” its citizens for some goal or “good” that is not the Whole of national existence. Signing a peace treaty with the Palestinians, ceding them territory and an army, arming them, and allowing them to cross into Israel as day laborers had nothing to do with Israel’s national existence. It had rather to do with Palestinian national existence as a kind of solution to a particular security threat and defeatism. But the Israeli government, elevating the “good” of a Peace Process over national existence simply and over the security of its own people, allowed it to sacrifice citizens for a process no one could possibly have understood as necessary. History of course bears witness to this modern day “sacrifice” to the idol of peace.

ix. The Golden Rule, or what is referred to as the Ethic of Reciprocity, is found in most religious thought in varying formats and applied in varying degrees to a particular people or to mankind universally. Our interest here is in Judaism and Christianity.

x. The meaning of the Golden Rule, at least the Jewish version, is limited to one’s own – a friend or fellow – someone similarly situated. How do we know this? From the source. The Rule is articulated in a famous Talmudic story about a non-Jew who went to the great leader of the Jews (circa 30 BCE to 10 BC) during the Mishnaic period, Hillel the Elder, and asked to be converted to Judaism on condition that he be taught the whole of the Jewish Bible and laws while standing on one foot. In response, Hillel said:

What is hateful to you, do not to your fellow; that is the whole Torah, while the rest is the commentary thereof; go and learn it. (Babylonian Talmud, 31:a)

We often see the word “fellow” translated as neighbor, which would be fine in the typical context where neighbors were fellows and friends in the sense they shared the same values, laws, and customs. The Hebrew word is Ra-ay, which is always used in the context of an associate, someone with whom you share the same circumstances of life. Thus, it is often used for a husband or wife.

The same word, “friend” or “fellow,” was used two centuries later by Rabbi Akiva when he said, “Love your friend as yourself – this is a fundamental rule in the Torah.” (Toras Kohanim on Leviticus 19:18). So it is that we come to the very source of this rule, at least for the Jew, which is the explicit Scriptural verse in Leviticus:

You shall not take vengeance, nor bear any grudge against the children of your people, but you shall love your fellow as yourself. (Leviticus 19:18)

Here in Leviticus, the expression, using the word “Ra-ay”, is creating a command for the Jew in his dealings with his fellow Jew, and this is in fact the ruling of Jewish Law (see, e.g., Maimonides, Mishne Torah, Laws of Conduct, Chapter 6, Law 3).

But our analysis of the Golden Rule, as least from the Jewish sources, must continue because of the explicit provisions of the Bible on the treatment of the “stranger.” So we find in many verses the admonition not to oppress or mistreat the stranger and, in the affirmative, to provide him with charity and even to love him.

The verses are:

“And a stranger you shall not wrong; and you shall not oppress him; for you were strangers in the land of Egypt.” (Exodus 22:20)

“And a stranger you shall not oppress; for you know the heart [literally, “soul”] of a stranger, because you were strangers in the land of Egypt.” (Exodus 23:9)

“And if a stranger shall live with you in your Land, you shall not do him wrong. The stranger that lives among you shall be for you as the native among you, and you shall love him as yourself; for you were strangers in the land of Egypt.” (Leviticus 19:33-34)

“He [G-d] loves the stranger, in giving him food and clothing. You shall love the stranger for you were strangers in the land of Egypt.” (Deuteronomy 10:18-19)

“Cursed is he who perverts the justice due to the stranger, fatherless, and widow. And all the people shall say: Amen.” (Deuteronomy 27:19)

And the verses in the Prophets making like mention of the special protection to be afforded the stranger can be found in Jeremiah 7:5-7, Zechariah 7:9-10, and Malachi 3:5.

What is important to note here in the context of the stranger is that the same word used throughout in the original Hebrew is “Ger.” The word “Ger” is used in Hebrew and as codified in the Law, as either a “Ger Toshav” or a “Ger Tzedek.” A “Ger Toshav.” meaning literally a “resident stranger,” is a resident alien who lives according to the laws of Israel as applicable to non-Jews. A “Ger Tzedek,” meaning literally a “righteous stranger,” is a convert to Judaism.

Thus, according to the plain language of Scripture and Jewish Law, there is a commandment to treat your fellow Jew and the non-Jew who dwells among you as a “friend” with the utmost care.

xi. Meaning the non-Jew who accepts upon himself to live according to the Seven Laws of Noah and to abide by the Jewish Law applicable to him as a resident alien. For the specifics of the Seven Laws of Noah, see the second of three footnotes to the essay “A Firestorm or Simply a Firebrand: Jews, Christians and Islam”.

xii. See, generally, the discussion in the essay “A Firestorm or Simply a Firebrand: Jews, Christians and Islam”.xiii. See, e.g., Maimonides, Mishne Torah, Laws of Kings, Chapter 8, Law 10 and Chapter 6, Laws 1-5.

xiv. Luke 6:31: “And as ye would that men should do to you, do ye also to them likewise.” (King James version)

Luke 10:27: “And he answering said, Thou shalt love the Lord thy God with all thy heart, and with all thy soul, and with all thy strength, and with all thy mind; and thy neighbour as thyself.” (King James version)

Mathews 7:12: “Therefore all things whatsoever ye would that men should do to you, do ye even so to them: for this is the law and the prophets.” (King James version)

xv. I may or may not wish to engage in some soul searching about what level of probability should be reached that the pain and suffering will successfully extract the information before I am set to suffer. But, given the nature of that decision, I would leave it to the sound judgment of the good and sane men operating during the exigencies of the moment.

xvi. Note that we need not address at this stage in our discussion the utilitarian argument that torture may or may not work to extract information, because that fact, if known, would simply fit into our calculus. If the anticipated harm is very great, and if the likelihood was very high that I had information that could be used to interdict the harm in time to save lives, and if time was of the essence, even if there were minimal chances to extract the information, decency and good sense dictate that the highest levels of pain should be applied to get at the information.

xvii. For just one example of this lie, even Senator McCain in his own autobiography admits that torture worked to extract information that he did not want to provide the enemy. That he did makes him no less a hero; just human.

Take the case of Lt. Col. Allen West, whose men had captured an Iraqi thought by military intelligence to be involved in a plot to ambush and murder a military affairs officer in charge of the local elections. West intervened in the interrogation after his men had beaten the Iraqi after getting no information. West then pretended to prepare to assassinate him with his 9mm pistol, discharging his weapon next to the man’s head. The Iraqi broke, providing details of the plan and co-conspirators. The ambush and assassination were thwarted. (See here for the details prior to final disposition.) West was investigated by the military for torture and notwithstanding the army prosecutor’s attempt to force a court martial, the end result was that this heroic soldier was fined and effectively drummed out of the military. (See here for the post-disposition details.) This is one, just one case of many where “torture” worked to save real lives in real time.

Constitutional Issues, Civil Liberty & Rights, Features, Terrorism, War on Terror

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