For now, go read Philip Zelikow at Foreign Policy’s Shadow Government blog, and Conor at The American Scene. For later, further comment from me. I suppose I can mention here that since I’m on record as saying that one dunk at the waterboard is not torture, whereas three dunks is, I judge 130+ dunks clearly to be torture, regardless of whether the issue is whether we ought to torture or not.
Tuesday, April 21, 2009, 5:36 PM
James Poulos
April 21st, 2009 | 7:00 pm
James, is there a qualitative correlate to your quantitative distinction? I don’t see anything obvious sticking out at me at first blush.
April 21st, 2009 | 7:29 pm
Scott, my argument turns on two points, one more controversial, I guess, than the other. The more controversial claim is that nothing done once can be torture. I admit that waterboarding is ‘a procedure’ whereas, say, ripping out someone’s thumbnail once is not very intelligibly described as a procedure. But it seems to be that ‘proceduralizing’ things is of the essence of torture. Jumping out of nowhere, ONCE, screaming and pointing a gun: not torture. Building a process or an ordeal out of this event — and the distinction between one and three is that once is once and three is a pattern, while two is ambiguous — does lead us into probable torture territory. The less controversial claim is that we should resist the temptation to do the moral calculus that leads us to a precise decision about how many iterations we can perform before switching over into torture, because under the sway of this temptation our moral calculus turns quickly, if imperceptibly, into a legal calculus, which allows us to justify our conduct in legal terms so as to avoid having to do so in moral terms.
April 21st, 2009 | 10:36 pm
I thought this post was thought-provoking, but very wrong. My argument against it is linked at my name above.
April 22nd, 2009 | 1:52 am
Thanks for the response, James. I would like to propose a thought experiment. I do so not to be argumentative, but to drill down a little deeper on the ramifications and possibilities of your suggestion, which I’m turning over in my own mind. I may have a post forthcoming, as well. But for now I’d k=just like to explore a bit.
So let us say that some person has been captured by the United Sates of America and the Department of Defense has reason to believe that this person is in possession of crucial information about terrorist activities. In order to gain control of that information, the detainee’s captors decide to utilize the waterboarding technique. Let us also say that the detainee’s captors have decided to use waterboarding because their intelligence on the detainee tells them that the detainee has an extreme fear of drowning, having witnessed the drowning of his mother first hand as a young child. The detainee’s captors believe that they will be able to “crack” the detainee with minimal effort by employing waterborading.
True to their belief, after only a seconds on the first round the detainee cracks and, for the sake of making the experiment interesting, provides his captors with a measure of false information to ensure he does not have to undergo the process again, so overwhelming are the attendant emotions and physical reaction. Having secured what they think is valuable information, the detainee’s captors throw him back in his cell, to rot until they can figure out what to do with him, feeding him the minimum requirements for his sustenance and so forth, but never laying a hand on him again (at least so far as interrogation is concerned).
Has the detainee been tortured?
April 22nd, 2009 | 2:31 am
Yes, this is the kind of direction you have to go in to follow the ethical breadcrumbs. Although as bad and illegal as it is to hold someone without charge or trial in the brig, I’ve got to say that doesn’t bear on whether or not your scenario causes the waterboarding involved to be torture. Presumably it would have to still be torture even if the information the detainee gave was correct and so valuable to thwarting a plot that he was released and in fact paid a cash reward, a strange but not terribly outlandish scenario all things considered.
So the issue seems to boil down to the question of whether exposing someone to a single act knowing that it will plunge them into great fear, possibly their greatest, is torture. I jump out from behind a wall and hold a gun to your child’s head. I walk into your room and announce calmly that by the time I’m done speaking five hundred wolf spiders will be dumped on your head. Wait, that’s not a good example because that’s a threat, which lingers ‘procedurally’ over time, preying on the imagination and memory, and is not a single act. I could spin this out at length, but I think long story short that on the facts of your hypo, something bad has been done to the detainee — worse than a ‘regular’ single act of waterboarding — but it might hinder our moral reasoning more than help it to describe it as torture.
Because then surprisingly pushing that same person into the deep end of a swimming pool, only to pluck them out 20 seconds later and never do it again, *regardless of their reaction*, would be torture too, which seems even more strained. Again, we can think of all kinds of really cruel ways of momentarily horrifying specific individuals on a single occasion, given the right kind of knowledge about them. Presumably those ways would tend to be unusual. Obviously repeating them one after the next would add up to torture. (I scare you with a gun! With a crossbow! A deadly snake!) But it might be the case that “cruel and unusual punishment” is bad enough to not do it without having to prove that that’s torture.
April 22nd, 2009 | 3:02 am
So the focus of your analysis is less about numbers, really, and more about the location of the act within a larger systemic effort towards abuse and coercion. In this regard I think intent has a lot to do with our moral calculus about what constitutes torture and what does not. If the intentions of the captors is to subject the detained to a systematic program of abuse, but they wind up only exposing the detained to one act of that program, then it would seem that, regardless of the number of times the detained has been subjected to abuse, torture has occurred.
I.e. being mean to someone and torturing someone are not the same thing even if the information possessed by the abuser is the same in both cases.
Intention also seems important in terms of the expected outcome of the actions. I’m mean to you because I like being mean to people is not the same as me dispassionately subjecting you to a program of abuse in order to obtain information you possess that I desire.
In some senses, I think the intent of the act outweighs the evidence about procedure and number of instances, though certainly the existence of a “program” or “procedure” of abuse speaks to both the potential number involved and the intentions of the actor. That both of these elements are present in my hypo might bolster the case for calling it torture, whereas the pushing of the detainee into a swimming pool as a mean gesture would not.
April 24th, 2009 | 12:28 am
Good points, James. I’ve been commenting away full throttle on american scene against the anti-Bush simplifiers/demagoguers/moral-high-horsers of this debate, but you’re onto something here.
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