Several years ago, Fr. Brian Harrison—Professor Emeritus of Theology at the Pontifical Catholic University of Puerto Rico—became the center of a small storm when he claimed in an interview with the New York Times that “there is nothing that the Catholic magisterium has said that would condemn waterboarding as such.”
Harrison had previously published two historical studies on Catholic teaching concerning torture and corporal punishment, surveying texts from the Old Testament right up to the papal magisterium of John Paul II. He concluded his study by arguing that Catholic tradition regards three categories of torture as “intrinsically unjust”:
(a) Torture for extracting confessions of a crime of which one is accused …
(b) Torture carried out on those not even accused formally of any crime or offence, simply in order “to frighten opponents, or satisfy hatred” …
(c) Torture … carried out not by public authority in accordance with a norm of law, but by those acting arbitrarily and clandestinely.
However, he argued that there remains a fourth category of torture, employed “for extracting life-saving information from, say, a captured terrorist known to be participating in an attack that may take thousands of lives (the now-famous ‘ticking bomb’ scenario).” On the morality of this category of torture, he suggests, the tradition has been silent and therefore the possibility that it might be justifiable to torture the terrorist in the “ticking bomb” scenario cannot be “absolutely excluded."
After Pope Benedict XVI gave an allocution reiterating that “the prohibition against torture ‘cannot be contravened under any circumstances’,” Harrison withdrew his earlier argument, but it seemed like an odd change of heart. Benedict’s comment, after all, said nothing more than John Paul II had said in Veritatis Splendor (80)—that torture was “intrinsically evil”—and this was simply a reiteration of the substance of Gadium et Spes, 63.
None of these teachings tell us what torture is, however. The norm against torture is stated in purely formal terms. We are told that there is something called torture, and that it is immoral. But no definition or description of torture is given to help us identify the practices that fall under the prohibitive norm. Is waterboarding torture? What about sleep deprivation? A few slaps across the face?
Moreover, even if the human act which takes “torture” as its moral object is an intrinsically evil act, the object of an act cannot be determined in isolation from a consideration of its circumstances, because some circumstances specify the moral object of the act. For example, if I am violently assailed by an unjust aggressor and the only way I can adequately defend myself is through lethal force, I may use such force. This is not an exception to the norm prohibiting murder. Rather, the circumstance of my being unjustly assailed helps me to specify (i.e., categorize as being of one particular species rather than another) the “object” of the act in question as self-defense, which is a different kind of moral action to murder, even if the two acts appear similar insofar as my action is the material cause of someone’s death. And so, one can raise the question of whether certain circumstances (say, the presence of a “ticking bomb”) require a different specification in the moral order of what, under other circumstances, would be defined as torture.
Various definitions of torture have been offered through the centuries. The most often used definition today, both by lawyers and ethicists, is the definition given in the UN Convention against Torture:
Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
But this definition—as watertight as it appears at first—quickly disintegrates under interrogation. Consider the following four cases, all of which are real:
Case A: the cruel and degrading treatment of an innocent Canadian citizen who was eventually released (his story is recounted in John Perry’s Torture: Religious Ethics and National Security):
In September 2002, US Immigration officials in New York detained Maher Arar while he was returning to Canada from a vacation in Tunisia. They claimed he had links to Al-Qaeda and for the next 12 days he was interrogated, strip-searched, shackled, denied food or sleep for 28 hours, injected with an unknown substance, and bullied into signing documents he had not read. US officials then had him removed to Jordan, where he was attacked by Jordanian security personnel. “Every time I talked they beat me.” He was then taken over the Syrian border and incarcerated in a Syrian military prison. There, he was beaten with electric cables and had to listen to the screams of fellow prisoners being tortured. “At the end of the day they told me tomorrow would be worse … interrogators constantly threatened me with the metal chair, tire, and electric shocks.”
Case B: Marine Corps veteran David J. Morris:
I attended SERE [Survival, Evasion, Resistance, and Escape training] as a young lieutenant in November 1995 … I was hooded, beaten, starved, stripped naked, and hosed down in the December air until I became hypothermic … Thrown into a 3-by-3-foot cage … I was told that the worst had yet to come. I was violently interrogated three times. When I forgot my prisoner number, I was strapped to a gurney and made to watch as a fellow prisoner was water-boarded a foot away from me. I will never forget the sound of that young sailor choking … I was incarcerated at SERE for only a few days, but my mind quickly disintegrated. I became convinced that I was being held in an actual prisoner of war camp.
Case C: In 1976 Australian Robert Symes was apprehended at the Malaysian border with four pounds of marijuana, convicted of drug trafficking, and sentenced to six lashes of the cane by a Malaysian court (Symes’s punishment is recounted in Peter Moskos’s thought-provoking book, In Defense of Flogging):
The men responsible for administering this punishment know precisely what they are doing. They are pros. People about to be caned are given incredibly thorough medical checks before the punishment is administered—far more detailed checks than those given when a prisoner is admitted to prison. If you die in prison from some ailment or other, too bad. But if you die from having your bum whacked, somebody somewhere is going to look bad … I was untied, and iodine was applied liberally to my wounds with a cotton swab. It stung like hell … The cane had chewed hungrily through layers of skin and soft tissue, and had left furrows that were … bloody pulp. The scars would never heal.
Case D: Brenda Thompson, a victim of Kenneth McDuff, one of the most notorious and sadistic serial killers in American history (I wrote about McDuff’s case previously with respect to the death penalty debate):
Brenda Thompson, a prostitute, got into McDuff’s pickup truck. After their “date,” McDuff encountered a police roadblock. As an officer walked toward the truck, Brenda began to kick and scream. The officer could see that her arms were tied behind her back. She lay back and kicked the windshield with such force that it shattered. McDuff floored the accelerator and smashed through the roadblock. “Given his fondness for vehicles,” Gary Lavagne says, “McDuff must have been incensed at what Brenda had done to his windshield. If his behavior that night was consistent with what he had done in the past, and what he would do in the coming months, Brenda Thompson endured a slow, excruciatingly torturous death.”
Case A is a clear case of torture, but the restriction of “torture” by the UN Convention to acts carried out “by or at the instigation of or with the consent or acquiescence of a public official” means that Case D would not be categorized as torture, which is counterintuitive. In Case B “severe pain or suffering” was intentionally inflicted by a state actor, and so it would seem that, according to the UN Convention (and again counterintuitively), torture resistance training is itself a form of torture. Meanwhile, it is unclear whether judicial corporal punishment administered after a due process of law as in Case C is torture or not. The UN states that punishing someone “for an act he or a third person has committed or is suspected of having committed” is torture, but it also claims that torture “does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” Taken at face value, these statements appear to be in flat contradiction. Intuitively, however, I suspect that regardless of their view on the morality of corporal punishment, most people would easily distinguish Case C from Case A. If it was wrong to whip Robert Symes’s buttocks, then it was doubtless a different species of wrong to what happened to Maher Arar. Nor is the problem simply with the particular definition given by the UN. Attempt to apply any definition of torture to real cases, and similar problems will occur.
Perhaps the discipline of casuistry might be helpful here. Casuistry is a form of moral reasoning severely out of fashion in the post-Vatican II era, which seeks to solve moral problems by reference to authoritative “cases.” Part of the problem with defining torture comes from a wooden insistence on the adoption of a geometrical strategy for moral reasoning, rather than a rhetorical one. Whereas geometric reasoning seeks to define a principle and then apply that principle to real cases to see whether they fit the definition, rhetorical reasoning begins amid the messiness of cases. It begins by selecting a paradigm case which all participants to the debate agree is an exemplar of a particular form of moral (or immoral) conduct and then proceeds to sift other cases by asking whether they are relevantly similar to the paradigm case. Whereas geometrical reasoning moves ab abstracto ad concretum, casuistry moves in the opposite direction: from what is concrete and evident (the case) to what is abstract (the principle).
Sometimes we know an action is wrong, and even have a reasonable idea of why it is wrong, but yet cannot fully grasp in what the action consists. Take murder, for example. The King James Bible captures better than most other translations the sense of the precept when it translates Matthew 19:18 as “Thou shalt do no murder.” But this, again, is a purely formal norm. It tells us murder is wrong but not what murder is. Is killing in self-defense murder? What about killing in war? We know that even though murder always involves killing, Scripture does not simply equate the two since judicial killing is not only permitted but prescribed in the Law of Moses.
And so, we turn to cases. Scripture gives us clear examples of killings which are presented as immoral. Cain’s murder of Abel (Gen 4:2-14); the assisted suicide of Saul (1 Sam 31:3-2 Sam 1:16); the death of Uriah the Hittite arranged by King David (2 Sam 11:1-12:20); the execution of Jesus (Acts 3:14, 7:52); the slaying of St. Stephen (Acts 7:54-60); and from the later tradition, the killings of the martyrs. Scripture also gives us examples of justifiable homicides. David’s killing of Goliath (1 Sam 17:1-54), Judith’s beheading of Holofernes (Jdt 10:11-13:10), and Phineas’s killing of the Israelite man and the Midianite woman caught fornicating (Num 25:6-8) are all recounted with obvious approval. Moreover, Scripture presents us with a number of cases in which the morality or immorality of the killing appears doubtful, cases which have provided fodder for much theological debate through the centuries, such as Moses’s killing of the Egyptian (Exod 2:11-15) and Jephthah’s sacrifice of his virgin daughter (Judg 11:29-39).
Torture can be treated similarly. Scripture and Christian tradition present us with paradigm cases aplenty. The excruciating death of Jesus, and of the martyrs who have imitated His death throughout the centuries, are obvious examples.
But paradigm cases don’t have to be limited to religious exemplars. From the cases above, if we took Case A as the incontrovertible “paradigm case” of unjustifiable torture, then the “ticking bomb” scenario doesn’t seem to have any relevant dissimilarity that would allow us to specify it differently in the moral order. After all, we can safely presume that however cavalier US foreign policy may have been during the Bush years, American officials would not kidnap a Canadian citizen and ship him off to be tortured in the Middle East unless they thought it justified by grave concerns about public safety. While Maher Arar may have been innocent per accidens, the per se object intended by the torturer in the ticking bomb case would be identical to the moral object in Case A, since in both cases the torturer would have serious reasons to believe the victim was withholding vital information and in both cases the torturer’s intent would have been to inflict pain as a means to extracting this information, to the further end of safeguarding the public against grave danger. Whether the victim does or does not later prove to be innocent does nothing to alter the fact that the nature of the moral object of the act chosen by the torturer at the moment he commences torturing is, in both cases, identical. Either the torture of Maher Arar was a fundamentally good act, or we must refrain from torturing the terrorist in the ticking bomb scenario. The state cannot have its cake and eat it. Both cases stand or fall together, since they have no dissimilarities which are relevant to the evaluation of the moral object of the action.
The value of casuistry after the Second Vatican Council has often been overlooked because it has a reputation as a mode of moral discourse that tends toward endless sophistry and hair-splitting distinctions, toward the creation of loopholes through which moral responsibilities can be evaded. Yet, in the case of torture, it was over-reliance on geometric, abstract principles that created loopholes which allowed waterboarding, shackling, sleep deprivation and other techniques to become part of the toolbox of American interrogators. Those who tried to justify these practices did not claim, for example, that the waterboarding of Arab detainees was not relevantly similar to the waterboarding of American prisoners of war by the Japanese during WWII—a war crime for which Japanese interrogators were convicted and executed by the International Military Tribunal. They simply refused to mention the Japanese executions, because those who wanted to promote torture had a vested interest in assiduously avoiding discussion of actual cases and instead focusing on a sanitized debate about principles, bringing forward various arguments to prove that waterboarding did not conform to various abstract definitions of “torture.”
The torture debate shows us why casuistry, far from being a form of sophistry that allows people to evade their moral responsibilities, is in fact a practical and earthy method of moral reasoning that ensures ethical debates remain focused on the relevant details, and, most importantly, in close contact with the real world and its messiness.