Tuesday, March 30, 2010

Torture and Ethics: Defusing The Ticking Time Bomb

A curious act of political theater of the absurd played out on the House floor last week when Republicans discovered that the intelligence funding re-authorization bill provided criminal penalties for “any officer or employee of the intelligence community who, in the course of or in anticipation of a covered interrogation, knowingly commits, attempts to commit, or conspires to commit an act of cruel, inhuman, or degrading treatment.”

The furor among Republicans was predictable knee-jerk response to anything that impacts Republican fear-mongering about terror and terrorism—that where our “war” on terrorism is concerned, no treatment of prisoners is reprehensible or out of bounds regardless of our traditional national values or our Constitutional niceties, and that any reasonable restrictions on what the CIA or military intelligence officers can do to prisoners [called “enhanced interrogation procedures”] to extract information from them endangers our national security.

According to CNN, the section of the bill in question dealt with specific prohibited acts, namely “beatings, electric shock, water-boarding, deprivation of food, water or sleep and violations of the suspect’s religious beliefs” and provided that “responsible intelligence officers would face up to 15 years in prison or life behind bars if the detainee dies.” According to the bill’s supporters, those acts are already prohibited by the Army Field Manual and by Presidential Order reinforcing those existing prohibitions. We note that if terrorist suspects being held are “enemy combatants” captured on the field of battle in our “war on terror” then they are “prisoners of war,” and those proscribed acts are prohibited by international treaty. Alternatively, if the terrorist suspects are criminals, these acts are prohibited by American law. So it is hard to see how the Republican objections make any sense.

House Republicans objected that the interrogation provisions of the bill would result in intelligence officers fearing to interrogate prisoners because they might face prosecution, resulting in less useful information and further endangering our country. That claim would be worth considering if it were true, but both the FBI and former CIA officials have said that “enhanced interrogation” (torture) does not result in reliable information because prisoners will say whatever the torturer wants to hear. We know that false confessions were routinely obtained by torturers from a variety of nations without scruples [North Korea, China, Japan, Germany, East Germany] and used as a basis for executing prisoners, and we can point with some shame to the Inquisition as the classic historic example of false confessions being extracted.

Regrettably, after the Republicans objected, the Democratic controlled Rules Committee pulled those provisions from the funding bill. I do not know whether I am angrier at the Republicans for their blindness to the ethical issue that such treatment violates our sense of proper conduct, or at the Democrats for once again backing down under pressure and failing to stand for principle. I conclude that both parties are a disappointment and beyond redemption.

One comment in particular on the CNN blog got my attention because it raises an ethical dilemma worth considering, a theoretical problem sometimes called “the ticking time bomb” scenario. The comment: “Imagine your child is held captive by a violent criminal and you have his accomplice. Please tell us what you would do to get him to tell you where your child is. Is there anything you wouldn’t do? You can hate me all you want, but there is nothing I would not do. Nothing.”

That may be true. Any of us in a similar situation might do something that violates the law, but that does not excuse any of us from the consequences of the law. That is the concept of civil disobedience, which is based on the premise that an ethical dilemma arises when there is a difference in what the law requires and what the demands of justice (or duty) require, setting up a conflict of values.

From an ethical standpoint, there are some circumstances where impending or potential evil compels us to a decision or action that may be, at least from the standpoint of the person faced with the dilemma, the lesser evil. However the moral principle is that you then accept the consequences of your action, you don’t get a free pass. To see the moral dilemma posed by the conflict between obedience to law and the demands of justice, recall the Civil Rights era and the laws supporting inherent racism, and the decisions made in civil disobedience to intentionally and knowingly violate the law and a concomitant willingness to accept the consequences of doing so.

My wife and I discussed the issue faced by CIA, MI5 and other intelligence agencies about what to do when there is a situation of such consequences that, arguably at least, breaking the law becomes necessary in the circumstances of the “ticking time bomb” —and we concluded that the intelligence agent might have to break the law and hope that he was right but only if he felt strongly enough about the urgency that he was willing to bear the personal consequences of breaking the law.

That does not imply that mistreatment of prisoners should be condoned in law; on the contrary, it requires that enhanced interrogation methods be declared out of bounds and subject to penalties. It is too bad that neither the Republicans nor the Democrats grasped the importance of this issue. The proposed law would have eliminated routinely using “enhanced interrogation.” If the situation raised by Dick Cheney were to arise, that we were faced by imminent ticking bombs that put the country in danger, we would expect that the seriousness of the situation would lead courageous interrogators to make the moral decision as to whether their country or their personal legal jeopardy was their immediate priority.

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