3 Comments

Mike Konopacki
February 28th, 2010 | 2:11 pm

Mark Oppenheimer’s piece in the February 27th New York Times sent me to your site. Thank you for challenging Marc Thiessen’s revival of the religious justification for torture.

Unfortunately, semantic arguments about torture are just intellectual gymnastics. Torture is illegal. The Geneva Conventions’ Common Article 3, the Convention Against Torture (ratified by the U.S. in 1994), the War Crimes Act of 1996, and the Anti-Torture bill of 2006 forbid it. Sadly, intellectuals would rather argue over words than demand enforcement of the rule of law.

Torture and Catholicism have a long and inglorious history, as the Rev. Brian W. Harrison has explained in his paper Torture and Corporal Punishment as a Problem in Catholic Theology. Thiessen seeks to drag this medieval barbarism into the 21st Century.

Thiessen’s principle of “double effect” is neither new nor original. It goes back to St. Augustine in the 5th century. According to Harrison, Tertullian of Cathage, the early patristic theologian, opposed torture. “Certainly, in Tertullian’s judgment, any complicity in torture – either ordering it or personally applying it. – is definitely ruled out for a disciple of Christ.” St. Augustine was much less absolute than Tertullian in regard to confession-extracting torture. Rev. Harrison writes: “But while he (St. Augustine) pinpoints the basic, horrible incongruities, he condemns neither the judges nor the laws that prescribe and implement such procedures.” The cruel punishment of torture was permissible because the intent was the charitable act of correcting the heretic’s errors.

Why was religious torture accepted? By the end of the fourth century Christianity was the official religion of the empire. The Christian church adopted the Roman legal system under the Theodosian Code. As Harrison explains, “Catholicism has now been explicitly and emphatically the Roman state religion since the imperial edict of February 28, 380, but the laws remain to a great extent in fundamental continuity with the old pagan legislation – including its reliance on interrogatory torture (quaestio) as a standard of judicial practice for serious crimes.” Edward Peters wrote in his book Inquisition of St. Augustine’s observation that heretics were enemies of the Church. “God gave the Church the powers of empire to assist it in forcibly returning the heretics to the real banquet of the Lord.” As Peters points out, “Heresy had always been a crime against he ecclesiastical community, but now that the Church was part of the empire, heresy became a crime of treason as well.”

Church and state became inseparable. Thou Shalt Not Kill meant that killing was OK. Charlemagne’s clergy preached that violence was permitted to convert Saxons. In De conversion Saxonum, a text from 777, Charlemagne’s court theologians praised his killing of the Saxons by comparing his victory to Christ’s defeat of death through his crucifixion. Pax Dei soon became Bellum Dei, or War of God. Urban II declared in the First Crusade that killing Christians remained a sin, but killing Muslims was not. The rules kept changing like the laws painted on Animal Farm’s barn.

The major flaw in Marc Thiessen’s argument is that torture is not limited to the guilty. To accept torture is to except the torture and killing of innocents. A case in point is Manadel al-Jamadi who was tortured to death by the CIA at Abu Ghraib in 2003. He was subjected to what is referred to as a “Palestinian hanging,” a form of crucifixion. Jane Mayer writes in the New Yorker that Dr. Stephen Baden, chief forensic pathologist for the New York State Police, reviewed his autopsy and commented, “If his hands were pulled up five feet—that’s to his neck. That’s pretty tough. That would put a lot of tension on his rib muscles, which are needed for breathing. It’s not only painful—it can hinder the diaphragm from going up and down, and the rib cage from expanding. The muscles tire, and the breathing function is impaired, so there’s less oxygen entering the bloodstream … (A)sphyxia is what he died from–as in a crucifixion.”
The innocent cab driver Dilawar, subject of the movie Taxi to the Dark Side died in a similar manner. As reported by David Townsend in the National Catholic Reporter, “Dilawar of Yakubi was chained to the ceiling of his cell, suspended there for three days compared to Jesus of Nazareth’s three hours. His arms dislocated from their sockets. They flapped like a bird’s broken wings when he was taken down for interrogation, as Jesus’ arms may have done had he been taken down from the cross before three hours. While he was chained to the ceiling, Dilawar of Yakubi’s legs were beaten to a pulp. “Pulpified” is the coroner’s description.” The thieves hung with Christ died in a similar way, by having their legs broken.
If it was good enough for Jesus it’s good enough for “enemy combatants.”
In Oppenheimer’s piece Rev. Harrison is quoted as saying, “at least so far, there is nothing that the Catholic magisterium has said that that would condemn waterboarding as such.” So even the fact that the Holy See ratified the Convention Against Torture on June 22, 2002 is meaningless.
Unfortunately, the Obama Administration refuses to prosecute the torturers and their legal enablers (itself a violation of the Geneva Convention). This can only mean that they reserve the right to use torture themselves.

One would have thought that humanity would have “evolved” since medieval times. Thiessen’s tortured adherence to the past proves it’s not always the case.

Tristian
February 28th, 2010 | 2:29 pm

Tollefsen’s analysis has its own problems I think, largely because he follows Aquinas in suggesting that Double Effect justifies self-defense. This is a complicated matter, but it’s a mistake to think that Double Effect is what allows me to shoot an attacker as a means of ‘repelling’ his attack. The point of shooting someone is to harm or kill them, and this is what we hope and expect will repel their attack. The harm, in other words, is the intended means by which we achieve the good. If DE allows this, it *would* seemingly allow torture. Not to mention abortion, shooting people in hopes of procuring organs, and so.

The critical factor in the case of self-defense is the attacker’s *guilt*. What DE allows in the case of self-defense are actions that may kill or inflect harms beyond what we are entitle to inflict in self-defense, so long as they are not intended. But the permissibility of self-defense per se has its origins in something else. It is closer to punishment, which is also not justified by DE.

Terrorists are guilty of seriously immoral behavior, so we are certainly entitled to treat them in ways that would be ordinarily impermissible. But waterboarding is neither punishment nor self-defense.

Martin McPhillips
February 28th, 2010 | 6:21 pm

I don’t question Tollefsen’s principles or his reasoning, but I reject his phenomenology — really, the absence or insufficiency of it — with respect to asymmetrical warfare.

Active asymmetrical combatants are in short supply. They are difficult to identify even when they are located. Their battlefield is not physical until they reach the point of attack, and then it is too late.

Taking information from them is analagous to combat itself. It is not the same kind of thing as the police beating a confession out of a suspect, or a prisoner of war captured as a legal combatant being tortured for information about conventional warfare.

Asymmetrical warfare is wholly different and each individual terrorist is a part of an informational system in which his information is essential weaponry.

Failure to disarm an asymmetrical combatant of his informational weapons is a failure to defend.

Asymmetrical warfare intends to use the moral norms of the society it is attacking against it, and we have seen this over and over again.

If Mark Thiessen’s reasoning isn’t perfect, he is still on solid moral ground.