Hurts So Good: Confronting Transcendance in the Scum of the Earth

There are those whose intellects get tied up in Chinese puzzles when confronting the question: "is torture ever justified?" If the answer is 'no', but you're not quite sure they mean it, try a follow-up: "Is waterboarding torture?"

Should the answer be a furrowed brow accompanied by a solemn, "Wow. That's a tough one. Let me think about it," you'll know that the answer is not 'no'. "Tough" can only imply that, upon first consideration, your moral intuition cannot know the truth of the matter, that what you see is not what you get, as when you see a father disciplining his eight year old son with a fist to the mouth, and feel pretty sure you know what you're looking at.

Well, that's what my moral intuition tells me about waterboarding, and as a consequence I suspect that people who find that conclusion 'tough' to arrive at, and who wish to experience a self-induced migraine before pronouncing one way or the other, are probably looking for a way to justify it, or at least leave it in a state of such delicious irresolution that the activity continues uncondemned.

I had hoped never to discuss the subject again, before, that is, stumbling across an article by Gilbert Meilaender in a recent Weekly Standard. It's called "Stem Cells and Torture," and he uses rationales for the former by way of analogy to the latter. It's a fairly extended discussion, and a mostly very fine one, and I simply don't have time to do justice to all its parts. I need, as best I can, to cut to the chase.

I say 'mostly' because Mr. Meilaender is one of the more reliably staunch apologists for traditional Christian morality, yet in this article I sense an ambivalence, or perhaps a hesitancy, at just that place where I'd expect him to give an answer firm and to take a stand forthright. (I want to be fair, so if any see it another way, I'll certainly entertain the correction.) It caught my attention because it seems atypical of his writing, which is always (and is this time as well) characterized by its accessibility to the layman; a mildly elegant, yet unadorned, prose style suitable to clarity; perfect honesty; and a fearlessness in argument touched by humility. One never gets the sense that this humility leads him to avoid or finesse some possible objection; neither does it (in my experience) lead him to shy away from a necessary conclusion, as though he were left wringing his hands at how 'intractable' it all is.

As I said, he leads us to torture by way of stem cells, presenting the usual rationales for embryo-destructive research and the usual objections to them. He eventually moves from the usual to the extraordinary by asking (and calling to his aid the Jewish thinker Hans Jonas):

But what if the issue is not improving but, more starkly, preserving society? Jonas was prepared to acknowledge that there are "examples of what, in sober truth, society cannot afford." It cannot afford to let an epidemic "rage unchecked." Some epidemics are acute--as, for example, the Black Death was. Others are public calamities of a more chronic kind--as, for example, "the life-sapping ravages of endemic malaria" may be. Of these possibilities Jonas wrote: "A society as a whole can truly not 'afford' such situations, and they may call for extraordinary remedies, including, perhaps, the invasion of private sacrosanctities." Jonas did not think of this as a matter of numbers alone, since, as he noted, there is also a sense in which society cannot afford a single injustice or violation of rights. Still, there might be cases "critically affecting the whole condition, present and future, of the community" that could constitute something like a state of emergency in which disaster could be averted only through "extraordinary means" of experimentation--means otherwise forbidden...It is not silly to think of terrorist activity--which intends, after all, to undermine all settled social life by returning us to something rather like Hobbes's state of nature--as a political parallel.

Readers will recognize this as the bio-ethical version of the much beloved and belabored ticking time bomb scenario. Having gotten us there, his description of torture is as follows:

In torture we seek to overcome another person's conscientious resistance to our will. We aim to "break the conscience which is commanding him to keep silence." This differs from what Thielicke calls "temptation by desire," which seeks to work "by way of the man's own decisions." Nor can torture be equated with coercion, with an attempt to force a decision out of the person. Torture seeks to inflict pain severe enough to eliminate the ego, to bypass "the sphere of decision altogether." It seeks, we might say, to turn the person--a subject--into an object, a thing...His [Thielicke's] fundamental category is not torture but dehumanization. Temptation and coercion attack--but without bypassing or subverting--the person, and they may sometimes be permitted or, even, required. Torture and truth serum bypass--we might say, "thingify"--the person, taking away "the personal right to decision." But if the human person is a representation of transcendence, it is the transcendent that has then become our target.

The central objection to both torture and ESCR is, using Helmut Thielicke's phrasing, that they require a

"direct confrontation with transcendance." This happens when the personhood of another human being, "the bearer of an alien dignity" and "the direct representation of transcendence," is at stake.

And which imposes upon us what ought to be obvious to any Christian, that there are "limits which cannot be transgressed."

But what about that emergency situation?

To return to the stem cell analogy for a moment, suppose that what was needed was not an entire industry devoted to the use and destruction of embryos in an on-going program of research, but, instead, just three specific embryos. Produce and destroy them, and we position ourselves for continual progress in the war against degenerative diseases. Draw back, and we forgo all such good results. It's a hypothetical with no purchase on reality, of course, but I have often wondered what my answer to it would be.

And he never does answer it, although he seems to know that he should:

In theory, my answer ought to be clear. If human beings were simply members of our species, it might sometimes make sense to sacrifice one or another of them for the sake of the species as a whole. But human beings are not just members of the species or parts of a whole. Each human being is a "someone" who belongs to no earthly community to the whole extent of his being. That is why we are not interchangeable. The "value" of one thousand people may be more than that of one, but the thousand are not more than one in personal dignity...

and concluding a few paragraphs later that "wrong, but very little harm, has been done."

Likewise, he asks of torture:

Would I authorize that the captured terrorist be slapped around? Yes. Deprived of sleep for a time and disoriented? Yes. Water-boarded once? Now I begin to suspect that it is corrupting to try to answer that question in advance, as if there were a policy we could formulate to protect ourselves in a moral no-man's land.

And again he does not answer, preferring theory instead: "But the answer must, I think, turn on whether doing it once would be more like an attempt at coercion, which is still a test of strength, or whether from the start it would aim to thingify the captured terrorist, trying to bypass altogether his capacity to decide." And does it not do this? My moral intuition tells me, without hesitation, that not only does it do this, but that this is precisely what it was designed to do.

And yet again a few paragraphs later:

Waterboard that captured terrorist once? Well, I'm not sure we have a rule to cover the question. Water-board him fifty or a hundred times? Surely not. That is no longer a test of strength, but of will.

Which, at first reading, prompted me to scribble in the margin, "It wasn't the first time either," which I will explain in a moment. So yet again he fails to answer. My overall impression is that Meilaender is headed in the right direction, wants to get to his destination, but can't quite summon the resolve to cross the finish line. He seems to want to make allowance for transgressions in acute emergencies, as opposed to the normal run of things:

What if we face not an acute but a chronic epidemic? My own sense is that this is quite a different matter...It is one thing--perhaps never to be done and perhaps always wrong--to step into a moral no-man's land in the face of an acute emergency. But if the crisis continues indefinitely, it ceases to be an emergency and becomes everyday life. Not three embryos destroyed just once, but an ongoing industry of embryo-destructive research, with which we make our peace on the ground that we do this in the face of the ongoing crisis of human suffering. We should reject the notion of a "war" against disease; it will turn out to justify transgressing most moral boundaries that present themselves.

He finishes with this reminder:

Life, and our shared way of life, are always fragile and insecure. That is not a crisis; it is human history. And during our share of that history it will always be true that how, rather than how long, we live should be our central concern.

Which seems most morally salubrious except for that word "crisis," with which (again) he seems to leave room, in the extraordinary situation, for letting "how long" take priority over "how."

And so (assuming I'm reading him correctly) I'd like to try to nudge Mr. Meilaender over the finish line by first providing a gentle reminder of my own: St. Paul's prohibition against doing evil that good may come is what Anscombe called "bedrock." It applies to any evil whatsoever, intrinsic or otherwise, and makes no provision for exigent circumstances - "emergencies," in other words. I'm sure Meilaender knows better than I that to surrender it is to justify precisely what he most dreads, "transgressing most moral boundaries that present themselves." A presumption to the contrary would have to contend that our nation will ultimately keep its sanity, that we will not institutionalize in our ordinary affairs what we resort to in the exceptional.

The problem is that we already live in that nation, the one in which the disabled and the unborn are routinely murdered, by permission of law, and in which each individual is allowed to ratify his (or her) situation as being in itself a paradigm of acute necessity. The acute is already chronic. Meilaender himself sets side by side the words of two thinkers from different traditions. One is Helmut Thielicke, who says of the Christian that he

owes to the world...the public confession that he is one who is committed, "bound," and hence not "capable of [just] anything." If we make ourselves fundamentally unpredictable, i.e., if as Christians we think that torture is at least conceivable--perhaps under the exigencies of an extreme situation--we thereby reduce man to the worth of a convertible means, divest him of the imago Dei, and so deny the first commandment. This denial can never be a possible alternative.

The other is an oft-quoted passage from Cardinal Newman with the same essential import:

The Catholic Church holds it better for the sun and moon to drop from heaven, for the earth to fail, and for all the many millions on it to die of starvation in extremest agony, as far as temporal affliction goes, than that one soul, I will not say, should be lost, but should commit one single venial sin, should tell one willful untruth, or should steal one poor farthing without excuse.

Meilaender's conclusion? He's not sure he wants

to agree with either Newman or Thielicke...It is, however, to say the very least, instructive to find Thielicke, whose brand of Lutheranism always flirts with antinomianism, insisting that, at least in this instance, what we do counts for more than what we accomplish, and insisting upon it in a way as relentlessly demanding as Newman's.

And I find it instructive to note that Newman's words amount to no more than a re-assertion of Paul's prohibition, ornately rendered.

Secondly, I'd like to take a closer look at Dr. Meilaender's sense of what waterboarding is, of what category of acts it belongs to. When he says, "Waterboard that captured terrorist once? Well, I'm not sure we have a rule to cover the question. Waterboard him fifty or a hundred times? Surely not," he appears to assume that it might be treated as akin to other kinds of acts of which we know that "If no rule can quite tell us when we have transgressed a line that should not be crossed, that does not mean there is no such line." If it were possible, I'd like to persuade Dr. Meilaender that waterboarding is not that kind of act, but rather belongs to a class of others Meilander has already set apart as not being subject to line-drawing - such acts as forced nudity, being compelled to sit or sleep in one's own urine and feces - because they lack the quality of "parts", the capacity to be parceled out in careful measure. They do not acquire their "fullness of being", so to speak, with frequency or duration of use, but are what they are from the beginning. And because the intent to dehumanize is so manifest in their very nature.

"Well, I'm not sure we have a rule to cover the question." But we do. All intrinsic evils are forbidden in a very familiar form: Thou shalt not... So the question must be whether one instance of waterboarding is that kind of evil, or only becomes so if done to excess. (What's "to excess?" I don't know. Draw a line.) Is it more like a slap in the face, or forced nudity? Or does it matter? Is a slap in the face (which Meilaender would allow), whether dealt in anger or intimidation, not evil? I ask because Paul's prohibition covers any evil, not just those judged to be intrinsic. But if that slap in the face is the first in a sequence which you have determined ahead of time will not cease until the information has been divulged, is it not intrinsic from the get-go?

What I'm getting at is that certain kinds of acts, in their very conception, are incapable of "tipping over" into another kind. All good acts can be corrupted by circumstances or intentions, while no evil act can ever be made good. But among these latter we must make distinctions. Circumstantially evil acts, such as slapping your terrorist prisoner in anger or frustration (or hatred), can be forgiven. You regain your composure and self-discipline, confess to your superior officer, resolve to do it no more, and likely that's the end of it. But should you be aware of the fear that the slap has struck into the prisoner, and then resolve by repetition to use it as a likely means to your end, what began as circumstantial evil is now intrinsic, as the intention behind it has changed utterly.

Likewise with depriving your terrorist of sleep, which in its inception I should think is no evil at all. Keeping a man up a few hours past his bedtime, perhaps withholding food and drink, appears to fall within the bounds of lawful coercion. We know, however, that this tactic, aggressively pursued, with no strictly determined limits in mind at the outset, can cause great physical and possibly mental harm. If a line has not been drawn beforehand, a line which you know you will not cross, then what began as lawful coercion has tipped over into what it is absolutely forbidden. A good act has been corrupted.

But this line-drawing, this tipping point, will not apply to an act like waterboarding. You do not set out to waterboard a man in a fit of anger, or even as purposeful but carefully limited intimidation, even though much planning is involved, very meticulously detailed planning, if we are to be sufficiently scrupulous in our concern that no permanent harm (meaning brain damage or death) come to the prisoner. (He is, of course, unaware of our concern.) Your reason for employing the tactic will be as follows: "I am waterboarding this terrorist scum only that innocent lives might be saved." So if innocent lives were not at stake you wouldn't do it? And if not, why not? Or does the prohibition against doing evil only apply when the anticipated outcome is inconsequential? If your prisoner were a common criminal in possession of life-saving information regarding a kidnapped child, would you allow our police to indulge this tactic?

So the justification given has as its end a very noble thing - to save lives - and it is offered virtually always in just that form, which I hope any honest reader will recognize as just another way of saying that the end justifies the means, and of rejecting St. Paul's dictum. Most claim to love it as long as we don't take it too seriously. Its beauty seems to lie in its malleability. It's a very noble principle in theory, until the consequences of obeying it become more than I can bear, which renders it not a principle at all but a quaint sentiment, another of those lofty biblical counsels people love to wrap their lips around with no intention of swallowing. Mine eye offends me most every day, but it's still in my head.

So when a man says that we must do this particular thing to save innocent lives, we should at once notice that he has leapfrogged over his real intention to give us a false one disguised as an unarguably good end. And what is that real intention? It is, in the case of waterboarding, to terrorize a man into believing he is going to drown so that he will divulge information that will enable me to save lives. Before holding up that wonderful end for universal admiration, I ought at least to acknowledge what comes before it, the chosen means to my end, which is my unequivocal (and not merely coincidental) intention to terrorize a man into giving me what I want, to (using Meilaender's language) "thingify" him, to bypass his freedom of will, literally to de-soul him since his soul is of no account to me other than as it is convenient to my end. Unlike sleep deprivation, waterboarding does not start out as lawful coercion and then only later slide over into iniquity. It is evil from the outset. My motive in doing it the 100th time is no different than it was the first. I intended the first time to instill a mortal fear of dying, and I intended it the last.

The same would apply to such means as extracting the prisoner's fingernails one-by-one with a pair of pliers. Or touching an electric cattle prod to various parts of his body. From the prisoner's perspective the loss of his 10th nail may seem a more cumulative horror than his loss of the first, but as an individual act, the 10th extraction is identical in content, in motive and object, and is thus no worse in itself than the first; just as, at the sight of ten murdered people, we should not cry out in horror at the pile of bodies, but at the fact that there is even one among them, for the crime against the 10th was of precisely the same gravity as against the first.

Thus, if I were compelled to define torture, it would run along these lines: it is an act, belonging to a category of such acts, which, in its inception, is incapable of "tipping over" into another kind of act. It is not made worse (from the perspective of the torturer's intention) by repetition, nor better by reduction in the frequency of its use. It is not subject to our scruple for line-drawing because, as a tool, each instance of it is a self-contained, fully discrete packet of torment inflicted with the same intention and object as in every other instance. Every instance of waterboarding begins with the object of overpowering, by means of suffering, the very thing that makes a man human. In its attempt to destroy his soul's dominion over the power to choose between right and wrong, truth and falsehood, it is a form of figurative murder, temporary murder, we might say, and which cannot be said of other forms of lawful (meaning moral) coercion, as when a parent spanks his child in corrective punishment, or a prisoner is sentenced to ten lashes with a bullwhip for assaulting a guard. (I should say that Meilaender doesn't distinguish among punishment, coercion and torture - only between the latter two - though I think it's of the essence.)

I assume that most parents inflict pain on a child as the price to be paid for this particular transgression, and only to the degree that he is left free to choose whether to do it again, and that none among you would take it to such a level that he would never think of doing it again - not because he has freely chosen the good, or because he loves his parents' friendship more than his selfish pleasure - but because his terror of you is so profound. His soul is no longer his own, but belongs to you. He is less your child than your slave. If you had good warrant to believe that your teenage son was in possession of the names of fellow students planning a copycat version of the Columbine massacre, but whose names he refused to divulge for whatever reason, to what lengths of force would you allow the police to go in extracting that information from him? Would it include waterboarding?

Now it is certain that pain can be licitly administered as corrective punishment, becoming illicit only as its measure exceeds the gravity of the offense. That is, by means of a humane prudence, we try to insure that the punishment given is retribution for a known crime (its first purpose), as deterrence to future bad behavior (its second), which we hope will redound to the prisoner's own benefit (otherwise known as rehabilitation, its third), and to the peace and security of society (its fourth).

Is an act of waterboarding ever described by any of the above aims of punishment? No: because, first and foremost, it is not being delivered as punishment. Retributive punishment, as an attempt to approximate justice, is described in our moral tradition as an act "good in its kind." Punishment, by definition, takes cognizance of the humanity of its recipient, and is apportioned accordingly. An act of torture is never licitly engaged as punishment for a past transgression, but is taken in hand for the sole purpose of pre-empting some future (and entirely hypothetical) transgression, bypassing all those other aims except the last, society's peace and security. In its attempt to render null and void the soul's autonomy, it cares nothing for its victim's humanity, nor for any profit to which we might aspire on that humanity's behalf, but only for the end to which the torment is directed; and therefore, by definition, can never be proportionate to a known offense since, from its inception, it is not directed to that offense. In short, it is the sort of act that is not at all concerned with justice, but with results. (In Meilaender's formulation, with what we accomplish, not what we do.)

If it is indeed possible that, e.g., waterboarding is a licit coercive technique, why is it not more widely practiced? It is by some reports delightfully, and demonstrably, effective, which should recommend it to our use. If it is indeed an act "good in its kind," then it must be good for serious cases other than ticking time bomb scenarios. Police often have before them suspects of whose guilt they have little doubt. Why should they be denied use of the waterboard to confirm their suspicions about a serial rapist?

And yet there is no agitation among the branches of the military to modify the code of justice to which they are sworn, or among the police of this country to have access to these techniques, and I suspect the reason is that they know in their guts that if they had such access, they would no longer be just policemen upholding the law, but something else. They would leave work every day with the stench of criminality clinging to their own character. At the risk of seeming overly sanguine, I don't believe that most of our policemen or our military knights of the realm want to be anything like the criminals they strive to bring to justice or the enemy they engage in battle. Moral intuitions do serve a real purpose and are capable of apprehending what is true, what these police and military men already know: that their very integrity and self-respect would be at stake.

I'm perfectly aware that most people don't give a whit for the soul of a Khalid Sheik Mohammed. In light of the plans he had for us, and for the one successfully carried out on 9-11, he had coming whatever he got. Such people are free to remind us of that seminal event, and to amuse themselves concocting ticking time bomb scenarios to drive the point home, as long as they're also willing to admit that ttbs's are just a long-winded way of rejecting the biblical prohibition against doing evil that good may come; that such scenarios are constructed with no other purpose than to evade that prohibition. They should say it out loud, slowly and carefully enunciated: I reject the principle that I may not do evil that good may come.

In his article, Meilaender cites a "paradox" noted by law professor Zachary Calo, who wonders somewhat aghast at a principled morality requiring "that the community perish so that its laws might be upheld." The obverse requirement is that the laws be ignored so that the community might survive. We could probably get along quite well if the laws against jaywalking fell into disuse, but of those undergirded by a divine command, their loss would no doubt extract a steeper price, something akin to the community selling its soul for Wales. And, as I mentioned previously, we're well on our way. I also wonder what kind of community that would be, and whether in the long run any of us would really want to live in it once its true nature became manifest.