Defining Torture

MT asks,

What does it mean or what ought it to mean when we say that either an experience or an act is torture? (Have you blogged on this yet? I wouldn't be surprised, but don't remember). If torture in either of these senses could--say, in an isolated and even secret instance--ever be ethically apt, then is there something like it, which you could articulate, that we'd be better off denouncing or prohibiting--at least regarding the reasonable goal of speaking with precision, consistency and truthfulness about atrocities. (BTW, not trying to foment anything between you and Helmut)

This is a fantastic question, especially in light of the Mukasey equivocation on waterboarding.

It is probably worth looking at a few standard or significant attempts to define the term. The Geneva Convention disallows torture explicitly in several places, but never offers a definition of the term.

The UN's definition from the ratified "Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment" is:

For the purposes of this Convention, the term "torture" means 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.

What is interesting here is that the notion of torture is defined in terms of (1) the severe consequences of the act, (2) the intentions of those perpetrating the act, and (3)the consent of a government official.

The McCain amendment uses this definition augmenting it with the provisions from the fifth, eighth, and fourteenth amendments basically adding cruel and unusual to the definition.

The Rome Statute that sets up the International Criminal Court, gives a more stripped down version:

"the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions"

Here we have (1) the severe consequences, but no specification of intent and no mention of official sanction.

The Bybee memo which the Bush administration uses to define torture is broader still:

"certain acts may be cruel, inhuman, or degrading, but still not produce pain and suffering of the requisite intensity to fall within Section 2340A’s proscription against torture...for an act to constitute torture as defined in Section 2340, it must inflict pain that is difficult to endure. Physical pain amounting to torture must be equivalent to intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. For purely mental pain or suffering to amount to torture under Section 2340, it must result in significant psychological harm of significant duration, e.g., lasting for months or even years. We conclude that the mental harm also must result from one of the predicate acts listed in the statute, namely: threats of imminent death; threats of infliction of the kind of pain that would amount to physical torture; infliction of such physical pain as a means of psychological torture; use of drugs or other procedures designed to deeply disrupt the senses, or fundamentally alter an individual’s personality; or threatening to do any of these things to a third party. The legislative history simply reveals that Congress intended for the statute’s definition to track the Convention’s definition of torture and the reservations, understandings, and declarations that the United States submitted with its ratification. We conclude that the statute, taken as a whole, makes plain that it prohibits only extreme acts."

Here the only criterion is the severity of the consequences and the bar is significantly raised on the meaning of "severity."

From these three, the Rome Statute strikes me as the most appropriate. One could imagine torture without official sanction and for no seemingly coherent intent. Likewise the Bush administration's definition is appallingly narrow.

The second part of the question is whether or not we can concoct a situation in which an act satisfying this definition is morally permissible or morally necessary. This is a classic game in which you take an act that a deontological or duty-based ethic rules out and see if you can create conflict by designing a scenario where the utilitarian calculation makes not doing it so unpalatable that everyone has to say it is the lesser of two evils.

One way to avoid the game is to load the definition like we do with murder. Murder is by definition immoral killing. If we make torture by definition immoral treatment of a prisoner, then the problem is solved but only because we beg the question. Being the sharp one that MT is, the framing of the question ruled out this fallacious move from the start.

So could we come up with a situation that would allow or require us to torture? Of course we can, but it is a bullshit game. This is the standard move, the Dershowitz ploy, the rhetorical scam for those who want to defend the use of torture. The real question we are faced with is "In the context of the world we are living in, with the actual dangers we face, and with the actual resulting harm that torture does to the torturing society, in the cases we will actually have to consider will there be a plausible case for torturing people in our custody?" But pulling the bait and switch, the question they then answer is "Is there a possible world in which some situation can be artificially created which ignores the larger ramifications of torture on the broader society and only looks at the hypothetically immense harm caused by an unrealistic fabricated threat in which that threat could be avoided by torture?" Is there an affirmative answer to the Dershowitz ploy? Of course, it isn't hard to come up with one at all. If you are a Supreme Court Justice, you might even look to a series on Fox to provide them for you.

The real question is whether there is an affirmative answer to the real question of torture and not the strawman version. And here, when you look not only at the duty-based approach that says, "Never torture" but also realistically look at the actual lingering effects that permitting torture has on the torturing society, when you look at the inability of torture to provide reliable information, when you look at the destruction of moral authority and the subsequent inability of the nation to be taken seriously in international forums concerning geopolitical affairs, when you add upall of the actual harm that torture does to us the answer is no.

The way the pro-torture arguments work is with a trick I've mentioned many times on this blog -- limiting the scope of discussion. Notice that the only harms the defenses of torture allow into the discussion are those potentially done by the tortured person if he is not tortured. Putting aside the fact that they have the deck stacked by setting up the game so that they can inflate beyond comprehension the damage done since the situation is their hypothetical, they pull another fast one by allowing under consideration only the harm that gets written down on their side of the ledger and conclude by arguing that the numbers add up to support them. OF COURSE THEY DO, THEY COOKED THE BOOKS TO GET THOSE NUMBERS! The only thing on the anti-torture side of the argument they allow is the good of following duty, they completely eliminate all of the real long-term costs of torture by drawing a line around the situation and not allowing any thought beyond the question of allow or prevent hypothetical terrible act x. So, if you ignore all the harm torture does, then yes, of course, torture is harmless and only does good.

It's intellectual three-card monty. It's a logical scam, a rhetorical game you can't win. It's a game we shouldn't play because what it really does is not only make you lose, but allow them to cage off the real question, the actual question we ought to be thinking about.