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December 4, 2006

guest blogger: Lt. Brandon del Pozo

I've been corresponding with a reader who is a lieutenant in the New York City Police Department as well as a doctoral candidate at CUNY. Brandon del Pozo also holds an MPA from Harvard and an MA from John Jay. The following is a guest post by him concerning torture and combat:

The principal, recurring, line of argument against torture is that it is different from acts of harm and killing in combat and law enforcement in a way that makes the very framework of justification for these acts inadequate for justifying torture as well. This inadequacy is not meant to be one of degree; the argument is not that torture is too extreme a form of injuring and killing to be permitted. It is instead that torture is crucially different in a way that makes the conceptual extension of these justifications inappropriate in the first place. Given what torture is, justifications for how we act in war and self-defense cannot be invoked to do the work of describing the morality of torture. People who wish to talk about the torture must therefore do so without invoking justifications for combat injuring and killing, which are already thought to be arguments that define the outer limits of how we are permitted to treat other people. Unless a person can talk about the justification for torture in a different way that accurately accounts for its special nature, it must be placed beyond the pale.

This approach fails because it does not appreciate just what we seek to do when we make war against people. Henry Shue, and more recently David Sussman, describe at length the way torture violates the person in an extremely sinister way. They talk about the way torture makes a person feel, the vulnerabilities it exploits, and the way in which it turns the very substance of personhood against itself. It uses a person’s extension in the physical world to enslave her consciousness, devolving her personhood to a state where it is no more endowed with dignity and rational agency than the most primitive sentient being, all the while subjected to the most severe forms of distress, fear and agony that sentience permits. Sussman argues that “through the combination of captivity, restraint, and pain, the physical and social bases of rational agency are actively turned against such agency itself... [a] perversion of the most basic human relations.” Making clear that in his view this cannot be justified by our present understanding of when and how we may cause harm, he concludes that “whether such objections could ever be overcome by legitimate military or punitive interests is a question that waits upon more comprehensive understandings of the morality of punishment, warfare, and self-defense.”

The description of torture above is accurate. The problem, however, is that in both the case of Shue and Sussman it is simply presumed that this description alone, when done well, is enough to make the case that torture is different from combat not by degree but by nature. In order to make the best argument possible, it would be necessary to do at least two things. The first would be to accurately describe what torture is. The second would be to affirmatively show that combat is not the same in nature as what has been described as torture, and that it does not differ only by degree. Prior work has done a good job of the former, but seems to have ignored the latter, as if describing torture has made the prima facie case that it is different from combat by its nature.

If we do not acknowledge the prima facie case and instead consider this second premise as something that must be proven, then the argument becomes much less certain. If an exercise could demonstrate that is possible to torture someone without causing any pain or significant physical discomfort at all, then the crucial element of torture is the mental state it produces in the person who is tortured. Consider this question: if I threatened to painlessly remove the limbs and organs of a person in the course of a carefully supervised surgery, pausing between procedures to allow her to consider submitting to my will, would I be torturing her? It seems that I would, and because of the mental state I have produced in her more so than anything else.

This point can be mated with an account of combat that sees torture as its extreme case, because the definition of combat and torture differ only in ways that, when described accurately, allow for assimilation. Philosophers of torture have very precisely described the ecology of the torture act, and it seems that their argument, if we look at it carefully, is that torture is different than other practices because its ecology—both as it is manipulated and as it simply prevails—generates certain key moral differences. If the ecology of warfare can be shown to be related to that of torture by degree only, then the difference between torture acts and war acts may only be a matter of degree as well. The failure to appreciate or take seriously certain features of warfare may in fact be a neglect of its ecology, among other things. What is warfare, after all, but an attempt by one army to control and shape a battlefield’s ecology so that it not only kills the enemy, but induces mental states in the survivors that produce capitulation? Battle, when “properly done,” produces intense feelings of isolation, hunger, and exhaustion. It induces extreme fear, deprives of sleep, and causes a person to consider abandoning convictions that are deeply-held enough to fight and die for only for the sake of escaping misery and suffering. It seeks to exploit every type of physical weakness in a person in order to enslave her soul to them, so that she will give anything she is asked for rather than persevere. If war planners had a completely free hand, and the proper means, they would design a battlefield to be a torture chamber for those soldiers who are not directly killed. Lacking the control necessary to do so, they instead strive for close approximations.

Torture should still not be permitted, but not because it is a morally special act. Instead, it should not be permitted because the requirements of justice and our own ethics do not allow for its coherent practice. We must build requirements of certainty into our justifications for actions that harm others, and we have established certain thresholds before which we will not consider exercising certain harmful options. These thresholds and requirements grow in proportion with the magnitude of the harm we might inflict. These requirements are not only in effect in domestic settings, in cases concerning fellow citizens, but also in international settings, and in war, as well as in private transactions. They are designed to respect our own feelings of empathy for fellow human beings, to safeguard ourselves from the damage done to us as a person when we ignore them, and they also acknowledge the dignity and rational agency of others. If we honor these requirements, then we cannot construct a torture policy that would plausibly indicate its use. War gives us levels of certainty that are not present in torture; we can kill a man with a certain uniform, for example, because the uniform is meant to convey knowledge of his status, but we can almost never know if the person we may torture possesses the knowledge we seek, or if torture will produce the end we want, for all of its awfulness. To put it most simply, when applied to torture, justice and our ethics create practical epistemic and policy problems that simply cannot be solved.

December 4, 2006 7:19 AM | category: Iraq and democratic theory | Comments


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