Fried and Fried make the argument against torture in the Washington Post:
“Those who defend the use of torture and who are using bin Laden’s killing to prove their point prove just the opposite. However vile, bin Laden was not the armed-nuclear-bomb-hidden-in-downtown-L.A. scenario of Jack Bauer’s “24.” The point is that once you are willing to cross the line of absolutely wrong, you must answer impossible questions: How many people must be endangered; how certain must we be of the danger; how sure must we be that this is the person who can lead us to the bomb and that the torture will work on him? What if the terrorist who planted the bomb is immune to torture or beyond our reach, but his young child is not? May we torture the child if that will make the terrorist talk? And how certain must we be that that will work?”
Now these are all good arguments. This is the most creative and impressive case I have seen so far.
One thing that must be said is that it is not the argument the Obama administration is making and that even if the argument holds it still doesn’t address the political argument: How can Obama take credit for something that came only as the result of things he has outlawed? Moreover, has Obama really made us safer? If we got bin Laden because of things that Obama has now made impossible what are we thanking him for? He has only made the same decision that any president (presumably) would make and now takes away from future presidents and future Americans the possibility of protecting themselves with the same degree of effectiveness.
Obama is taking victory laps for getting bin Laden. He cannot at the same time admit that he is dismantling the policy that made it possible for him to do it. He has to go into the election saying that he will keep us safe. If it is true that torture lead to finding bin Laden and Obama is ending torture then it is a problem.
They say that torture involves us in impossible choices, a series of which they proceed to name. The problem with their argument is that even if these things are impossible they are impossible in somewhat different ways.
One source of impossibility is in making value trade offs, another is in making probability judgments that are impossible to make precisely but are no different from the sorts of judgements that all uses of force, whether in the criminal justice system or on the field of battle require us to make. The third source of impossibility is one that involves a logical impossibility that shows, I think, where the thinking of academics and the thinking of most other people, diverge.
The first part of their argument puts a lot of emphasis on the slippery slope argument. This seems out of place. Of course there is a sense of proportion and of course people will disagree on where the line is but that doesn’t mean that we will inevitably slip into a torture regime for bicycle thieves. All of the things we do to criminals are in some way inhuman. Putting someone in prison is inhuman. Locking them up in a cage for years on end is inhuman. Is the fact that we admit putting people in cages for the rest of their lives is admitted in some cases and we cannot a priori tell exactly what it is that separates the cases where such a punishment is admitted from those where it is not automatically going to lead to a slippery slope where every crime will be punish with life in prison?
The real problem in their argument I think is the child, and this is where the academic debate gets off track with the way that most non-philosophers and lawyers think about these things. The philosopher assumes the case for torture is utilitarian: preventing an immanent loss of life might justify torturing a person that has the information. And if torturing that one person is justified by preventing the harm then torturing another person such as his child would also be justified. And since we know that (or seem to feel that) torturing the child of a terrorist is wrong then torturing the terrorist is wrong too. And so, if we make a utilitarian calculation, balancing up the suffering of the terrorist’s victims against the suffering of the people that we torture to get the information is always going to lead us to some horrible moral absurdity the only solution is to not make the consequentialist move at all.
And here is where they get away from the way that most people think about this. I don’t think there is a simply utilitarian calculation. I think there is a moral calculation in the minds of those who advocate for torture. The terrorist has placed himself outside the protections of civilization by using the protections of civilization to destroy civilization. He has put himself outside the protections of civilization making himself hostis humanitas, and has no claim on civilization’s protections.
The child of the terrorist has done no such thing and that is why I think that most people would see the move from torturing the terrorist to torturing his child as not a move down a slippery slope but a jump across and chasm.
The terrorist is the enemy of civilization. He is not like the ordinary criminal who uses force and violence to break the law. The terrorist uses the law itself, the characteristics of a society that make it civilized, to destroy it. It is for that very reason that he is far worse than an ordinary criminal and is entitled to none of the protections and rights generally accorded ordinary criminals.
The examples they go on to cite of Lincoln’s code prohibiting cruelty are irrelevant. For instance, they quote Hallack’s admonition to his troops to not roast the Indians just because they have roasted some of ours. But that is irrelevant to this case. No one is proposing roasting bin Laden or inflicting pain on him for our amusement nor even to punish him. The torture regime that was, after all, only used on three high value targets (the number goes up to a hundred or so if you include all the prisoners held in secret prisons abroad who were subjected to mistreatment falling short of water-boarding) were not tortured for entertainment. And they could have avoided most or all of this by cooperating and giving up the information they had.
I am just not sure why I would be a better person if I put not torturing Osama bin Laden above the life of an innocent person in my own society. I am deeply skeptical that it is the right trade-off when the life sacrificed is one from outside my own society, as I think is the case in most of the cases we deal with.
How would you face God? I thought that it was important that I not subject one of your creatures to torture even though it necessitated another one of your creatures dying? Is that the answer God wants to hear? Are we so sure that God wouldn’t be disappointed? What if he says, “So what if everybody did that? The world will be ruled by those willing to commit terrorism because those that are against terrorism don’t want to get their hands dirty? That is what you do with the world I give you? That is how you protect the people that depend on you, for whom you have been given the responsibility to protect, by letting them be killed because you would not subject the killers to torture?” And let us be clear as long as we are talking about God, can we be sure he will be as horrified by water boarding as a couple of law professors from Cambridge? You have to remember that he has a much broader experience. In his major word are plenty of treatments that would make water boarding look pretty tame--many that were sent by the Old Man himself.
They accuse the people that are using the successful detection and killing of bin Laden as an argument for the harsh interrogation techniques the Bush administration used against some of the detainees of tarnishing President Obama and our military’s triumph. “Now, the same apologists who applauded President George W. Bush’s authorization of torture — and make no mistake, waterboarding is torture — are working to stain this great triumph
But if the detection of bin Laden came about by torture then the triumph is already stained. The question is, what are we to make of this fact. If it is a fact then we should face it squarely and own up to it. If, as Fried and Fried would have it, we cannot know whether this came about in part because of torture then it is already to late; we must admit that the triumph has been gotten by immoral means. Those who point this out, those who point out the role of torture in making this feat of arms possible are doing us a favor, they are speaking the truth to us, they are giving us a chance to redeem ourselves. They should be applauded, not excoriated. Surely, if it had been during the Bush administration that we got him Fried and Fried would be among the first to be pointing out how the victory is tarnished by this association, by these unanswered questions. Shouldn’t they be the ones asking if this great triumph is stained by torture rather than dismissing the question as “indecent” by saying that we can never know what role torture had in this accomplishment “because there is no way of knowing whether it is true, and any attempt to prove or disprove it must reveal intelligence that our security requires remain secret.”