The recent publication of the so-called Torture Memos and of the International Red Cross report on the treatment of high-level detainees in the aftermath of 9/11 has returned to national prominence the discussion of the morality of torture and “enhanced interrogation” techniques. Familiar and competing narratives are brought forth, on both the left and right: harsh techniques have made us less/more safe; the harsh techniques are/are not really torture; treatment of detainees bent on terroristic destruction of innocents should/should not be in keeping with the highest standards of international law.
It is important to be clear, as a moral matter, on what boundaries should be accepted in interrogation of human beings. These sorts of boundaries, regardless of whether they are called torture, or “cruel, inhuman and degrading” treatment, are the ones that matter for our most basic assessment of how agents of the United States Government should comport themselves when questioning terror suspects. The discussion should not, that is to say, begin with questions about how the nature of the terrorists’ crimes, or their status as illegal enemy combatants, affects what may be done. For, if there are forms of treatment forbidden as such for all human beings, then such forms of treatment will be ruled out for terror suspects just as for prisoners of war, and common criminals.
I begin with the following normative claim: human life and health is an intrinsic, and indeed, a basic, human good. That is to say, life and health constitute a fundamental aspect of human well-being; the possibility of the promotion of either provides not just a possibility but an opportunity, an offer of benefit. And the possibility of damage or destruction of either provides not just a possibility, but an evil to be avoided and, insofar as such damage or destruction is willed, a wrong not to be done. The normative principle that can be drawn from this practical truth is that in willing, one should never intend the damage or destruction of the life or health of another human being.
This principle is compatible with acts that will, in fact, damage or destroy human life: the use of force in self-defense, the decay of the body brought about by intense study, or the possibility of ill health consequent upon incarceration as punishment for one’s crimes. For none of these forms of damage need be intended; they are, if willed appropriately, willed only as side effects of some other reasonable activity. By contrast, the destruction of human life in, for example, mercy killing or capital punishment, is intended—willed in each case as a means to some further end: cessation of suffering or justice.
While for some purposes, it makes sense to think of health in a relatively limited way—as comprising an appropriate level of bodily functioning—health can also be reasonably looked at as something approaching one sense of the notion of “personal integrity.” From a moral standpoint, personal integrity signifies a good instantiated only by an agent’s willing, as when a virtuous agent actively brings the various features of her practical life, such as choice, action, and emotion, into harmony with one another. But from a more descriptive standpoint, the various capacities and psychic pre-conditions for such a practical life constitute a substratum that make possible such an active self-constituting form of integrity, and this substratum, when in good shape, likewise seems reasonably considered a part of health. Thus, while an agent is insufficiently virtuous if she does not bring her emotions into line with her choices over time, she is insufficiently healthy if her emotions cannot be controlled, that is to say, if she has, for some reason or other, lost control of her capacity to bring these into line with her choices, or if she cannot make choices, or finds her capacity for judgment greatly damaged.
The most easily identifiable form of torture is perhaps that which involves a straightforward choice to damage or destroy bodily health by mutilation of or assault on the body. Severing body parts, electric shocks to genitals, bodily invasions with knives or other tools—all seem to involve a will to damage the body’s health, and to be intrinsically wrong. But why are they done in the first place? Answering this question is helpful in considering more subtle forms of torture.
Damage to a subject’s bodily health might work in two ways to motivate or induce a subject to answer questions. First, the damage itself might be understood as a reason for the subject to speak—rather than undergo further damage, the subject would rather confess, provide information, etc. But second, the damage might eventually cause the agent to speak—that is, continued physical violation might so break down the agent that he was unable any longer to “hold out.” Such an agent would have been rendered incapable of autonomous control over his actions and would have been made subject to the will of the interrogator.
Effectively, we have here entered the realm of the larger sense of health: the subject’s health in the larger sense sometimes designated “personal integrity”—a coordinated functioning of the various capacities and psychic subconditions necessary for person’s integrity in the moral sense—would have been so compromised that he is no longer fully, and in some cases even partly, in control of his actions. At this point, he might feel compelled to say what he knows, not because he desires to avoid further damage, but precisely because he is already so damaged.
This kind of damage to health, broadly construed, might well be incurred without significant, or noticeable, physical damage. And it might be compatible with an eventual return to more or less full psycho-somatic functioning in the future (as are many other forms of damage to health). So the moral wrongness of either form of action—intending to damage the integrity of another so as to provide a motive for confession, or so as to break down that subject and induce confession—might be obscured, especially if an overly physical or bodily conception of health were governing our considerations.
In recent years, Patrick Lee (“Interrogational Torture,” American Journal of Jurisprudence 2006) and I (Biomedical Research and Beyond, Routledge 2008) have argued that if torture is understood to mean an intentional damaging of bodily or personal integrity, then it is intrinsically wrong, and hence absolutely prohibited. Lee suggests, as acts intended to damage personal, rather than just bodily integrity, “mock executions [and] prolonged sleep deprivation combined with drugs (to cause mental disintegration).” Lee also notes a number of disputed techniques: “being forced to stand or sit in unusually contorted and uncomfortable positions, being subjected to extremely loud and offensive music while being deprived of sleep, ’moderate’ sleep deprivation, and ’water-boarding’ (simulated drowning).”
It will not escape notice that Lee’s list of disputed techniques overlaps considerably with the list of techniques described in various of the so-called “torture memos”, which add, inter alia, “insult slaps,” “walling,” confinement in a box, nudity and shackling. Together, these comprise the list of interrogation tools thought to be obviously torture, and hence immoral, by some, and merely harsh, perhaps even brutal, but legitimate by others.
Why has it been so difficult to obtain moral consensus on these particular interrogational approaches? No doubt part of the problem is a willingness to resort to straightforward consequentialist justifications in some cases; there was an effort to save many American citizens from further deadly (perhaps even deadlier) attacks, and, as former Vice-President Cheney put it, “we’re not going to win this fight by turning the other cheek.” But, beyond all the other problems which utilitarianism suffers from as a practical ethic (the problem of ignorance, the incommensurability of goods, the rejection of human rights) there is the problem that this justification surely does too much. If the consequences provide justification for breaking down a subject’s psycho-somatic health, then why not just straightforwardly go at his bodily integrity with more traditional torture techniques? True, those techniques are clearly in violation of international law; but defenders of enhanced interrogation surely do not want to be claiming that the only difference between such techniques and torture is one of legal interpretation.
I think the real difficulty here comes from a recognition that any one of these techniques, with the possible exception of waterboarding, can surely be used in an isolated way without intending to break down the subject’s personal integrity or physical health. And this suggests that any one of these techniques might be used to provide a motive, for confession or provision of information, different from the motives or inducements provided by torture as described above. For not everything that could be held out as a motive for confession is intrinsically wrong: some level of discomfort, some absence of amenities, and some subsequent improvement of circumstances surely do not rise to the level of torture if offered as reasons for a subject’s compliance, and in some cases are probably not unreasonably utilized by interrogators.
Yet taken en masse, the range of enhanced interrogation techniques looks very much like a strategy for breaking down hardened characters bit by bit; standing naked, shackled, deprived of sleep, kept awake with cold water and loud noise, prevented from cleaning oneself after defecation, and subject to painful (though not physically damaging) slaps and disorienting smacks against a wall—and then subject to repeated waterboarding over a course of weeks or months: this looks like precisely the sort of choice described by Lee and myself (though I do not, of course, speak for Lee in drawing my conclusions), viz., the choice to disrupt an agent’s capacities for personal integrity by disrupting his control over his emotions, choices, self-awareness and self-image, connection to other human beings, and judgments.
If so, then neither legal distinctions between this and the infliction of severe pain and suffering, nor consequentialist judgments about national security, nor even reasonable awareness that these terrorists were bad people, and that the US was in a very difficult situation, making hard choices under considerable stress with, in most cases, the good of the country in view, should obscure the judgment that these approaches involved torture. This judgment should especially guide us in going forward: we should repudiate such techniques across all intelligence gathering operations, as was done in the Army Field Manual for Human Intelligence Collector Operations and resolve to hold such operations to the highest moral standards. But we should hope that such a resolve is possible without descent into the politicizing and partisanship that threatens to knock any effort at serious moral self-criticism off course.