Category: John Yoo

Peter Levine has been thinking through ways to rebut consequentialist arguments that might condone torture.

John Yoo, who wrote the official memo justifying the use of torture, still thinks that there are situations when torture is acceptable. “Look, death is worse than torture, but everyone except pacifists thinks there are circumstances in which war is justified. War means killing people. If we are entitled to kill people, we must be entitled to injure them. I don’t see how it can be reasonable to have an absolute prohibition on torture when you don’t have an absolute prohibition on killing. Reasonable people will disagree about when torture is justified. But that, in some circumstances, it is justified seems to me to be just moral common sense. How could it be better that 10,000 or 50,000 or a million people die than that one person be injured?”

Most knowledgeable people say that torture is wrong even on consequentialist grounds — because it simply doesn’t work: people say false things just to get the torture to stop.  But what if it did work, Peter asks? What about human rights, the claims of the intrinsic dignity of every human being?

I believe in universal human rights, which rest on a sense of the dignity and intrinsic worth of all people. I also think that virtue excludes the use of torture, which is dishonorable. However, I am not so much of a “deontologist” that I’ll stick to principles regardless of their consequences. I won’t say “fiat lex pereat mundus”–let the [moral] law prevail even if the world perishes. Instead, I hope that the effects of torture prove harmful, because then arguments about consequences will line up with arguments about principles and virtues and the case will be easy.

I think we need more than hope.  How about an argument for why torture is wrong even if the consequences seem to be beneficial, an argument that would put morality before utility.  With state-sponsored torture, we’re talking about the morality of an entire people, not just individual actions. As the philosopher Slavoj Zizek puts it in today’s New York Times: “Morality is never just a matter of individual conscience. It thrives only if it is sustained by what Hegel called “objective spirit,” the set of unwritten rules that form the background of every individual’s activity, telling us what is acceptable and what is unacceptable.”

For example, a clear sign of progress in Western society is that one does not need to argue against rape: it is “dogmatically” clear to everyone that rape is wrong. If someone were to advocate the legitimacy of rape, he would appear so ridiculous as to disqualify himself from any further consideration. And the same should hold for torture.

Are we aware what lies at the end of the road opened up by the normalization of torture? A significant detail of Mr. Mohammed’s confession gives a hint. It was reported that the interrogators submitted to waterboarding and were able to endure it for less than 15 seconds on average before being ready to confess anything and everything. Mr. Mohammed, however, gained their grudging admiration by enduring it for two and a half minutes.

Are we aware that the last time such things were part of public discourse was back in the late Middle Ages, when torture was still a public spectacle, an honorable way to test a captured enemy who might gain the admiration of the crowd if he bore the pain with dignity? Do we really want to return to this kind of primitive warrior ethics?

This is why, in the end, the greatest victims of torture-as-usual are the rest of us, the informed public. A precious part of our collective identity has been irretrievably lost. We are in the middle of a process of moral corruption: those in power are literally trying to break a part of our ethical backbone, to dampen and undo what is arguably our civilization’s greatest achievement, the growth of our spontaneous moral sensitivity.

Or from a Kantian point of view, when a state condones torture it exiles itself from the realm of humanity.  Treating prisoners as mere means to our own ends makes us inhumane — and I mean that in a very deep way.  If we want to be part of what we might think of as an international space of humanity, we need treat all others as deserving of fundamental rights. Otherwise we become an outlaw state.  Now we seem to be there.