Torture: Some Linguistic Issues

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In my post on some moral issues related to torture, I said I was planning another post on legal issues. As I've been thinking about what I wanted to say, I've realized that I don't really have anything to say about the legal issues. I don't know much about what the laws related to this issue actually say, and I don't have a clear proposal of what they ought to say other than the very general things I wish could be true of laws on this. The issues that I had really wanted to say something about are actually linguistic, not legal. I wanted to say something about the word 'torture' and why I think it's unfortunate that so much has focused on what falls under that term.

Here's the problem, as I see it. We've got a law (or treaty or something) that uses the word 'torture'. It then says torture is disallowed, or at least disallowed under certain circumstances. Part of the legal debate is whether cases of detainees in the war on terrorism count as falling under the law in question, and part is whether these techniques count as torture even if the detainees do fall under it. I have nothing really to say toward answering those questions, at least nothing that hasn't already been said ad nauseam. What I want to say is that it's unfortunate that those are the questions being debated.

Suppose you're a government official responsible for making decisions about what interrogation techniques are allowable and when. You're presented with this meaningless law that says we can't torture that doesn't tell you what counts as torture. In that case, it seems as if you have to figure out which cases count as torture according to what the English word means. It's plausible that one piece of evidence in figuring that out would come from interviewing the public about what they think counts as torture, since their use of the term is what makes it mean what it means to begin with. I think a number of philosophers of language would resist this, because we don't always know internally what factors in the world influence what our terms mean, but leave that worry aside. Suppose this would help us determine what counts as torture.

I don't think the actual case is like that. It's well within the realm of possibility that what legally counts as torture doesn't line up with what the English word 'torture' means, because the laws and codes dealing with torture often define it or give examples to declare which techniques legally count as torture. That means giving cases and asking if the cases seem like torture doesn't help. Besides, I don't think the opposition to some of these techniques really wants the law to be as vague as simply equating legally-defined torture with whatever the word means in English. They want lists of disallowed techniques, not some sense that the word in the law just means exactly what the word means. Laws like that are usually bad laws, because it's hard to enforce something without specific stipulations.

It's also within the realm of possibility that the legal definition of torture, which again might not line up with the popular meaning of the term in ordinary English, might actually diverge in meaning in different contexts. In particular, different kinds of laws might deal with different sets of things called torture. Is what counts as torture in a context of declared war against another country going to line up with what counts as torture in the war on terrorism? It's obvious that such a context shift doesn't change what the English word means. But if the legal definition doesn't line up with the meaning of the English word, why should we expect the same legal definition in both contexts?

This leaves us with a problem. How do we determine what legally should count as torture, given that it doesn't have to be whatever the English word means and it doesn't even have to be the same in all contexts? Here is my proposal. Stop discussing which techniques are allowed absolutely, because imaginable circumstances might allow some techniques that aren't allowable in less severe circumstances. The issue isn't whether we can list the techniques we do or don't allow. What matters is putting a system in place that can safeguard the process so that extreme methods are not used except in very extreme situations.

I'm not the sort of person to come up with ideas on what those safeguards are. I have no special background in law or the military. But I do know ethics, and I do know language, and what I'm seeing coming from the opponents of waterboarding and other techniques doesn't seem to me to fit with what seem to me to be the best ways of looking at the ethical and linguistic issues. The debate shouldn't be about what the word 'torture' in English includes, as if we can think about the technique and just intuit that it counts as torture. It also shouldn't be about blanket generalizations. It should be about putting specific procedures in place that should be followed in non-emergency situations to safeguard what kind of technique can be used, with another set of procedures in emergencies that will allow for on-the-spot decisions that can be allowed more leeway but still with serious repercussions if a subsequent evaluation leads to serious questions about what was done given what was known, what could be known, and what could be expected to be known.

Now a lot of the comments people have made on my first post have come from worries about abuses by those who would torture immorally for their own reasons and those who could give too much benefit of the doubt to those who would commit such abuses. That's a problem. But it's also a problem if we end up with a too-tight restriction when the extreme case occurs. What I would like is a safeguard system that can avoid both problems.In hard moral cases there isn't always a solution that gives you everything you might want. It does seem at least in principle possible for someone especially good in that kind of intelligence to come up with something that could do that (or at least end up with something in that direction). So I think it's possible that we're working with a false dilemma: restrict the interrogators more than the status quo does, or defend the insistence of the current administration that extreme techniques ought to have some place in extreme cirtcumstances. Couldn't there be a system of safeguards that moved toward achieving both aims?

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What matters is putting a system in place that can safeguard the process so that extreme methods are not used except in very extreme situations.

This sounds like another way of saying that the end justifies the means. I would take a different position, that extreme methods, those traditionally understood as "torture", are not acceptable even in the most extreme situations. Of course this does not solve the definition problem, but it does avoid the kind of relativism which can be used by lawyers and powerful state organs to justify anything they want to do.

You also fail to address the issue that torture or not-quite torture doesn't work. You can get people to say anything by torturing them, but there is no guarantee that anything they say is the truth. Typically torturers continue until their victims say what they want them to say, and then assume that that is the truth and their earlier denials are lies. But there is no way of telling which version is true. Torture and not-quite-torture are simply wanton cruelty.

Well, I have said plenty already in this discussion to show that I'm not simply proposing a consequentialist view. An "end justifies the means" view takes any slight difference in consequences to shift which actions are right or wrong. An action that's normally wrong would count as right in any case when it leads to better consequences. That is not remotely my view, and I've explained that over and over at this point.

My view is that we have lots of prima facie duties that can sometimes conflict. Which prima facie duties become actual duties in a particular case depends on which factors become most important in that case. Some prima facie duties are far more important than others, and some increase in importance depending on the consequences. The duty not to lie doesn't get removed just because a lie might lead to slightly better consequences, but it might be trumped by other duties in extreme cases, e.g. when someone's life is at stake. The duty not to kill is going to take more than just someone's life at stake, or it would be ok to kill a healthy person in order to donate those organs to five others who need them to live. The threshold for when consequences can remove a prima facie duty is much higher for the duty not to kill than it is for the duty not to lie. This is clearly not "end justifies the means". It's "duty for benevolence usually doesn't trump other duties but in rare circumstances does".

I'm not sure what you mean by relativism, but I don't see either my deontological view or consequentialism as relativism. Relativism takes actions to be right or wrong depending on what the person happens to think or what the culture happens to think. A consequentialist view is not relativist in that sense. Objective facts determine what is right and wrong, completely apart from what people might want to be true. Those facts have to do with good and bad consequences. With deontology, even the moderate version I defend, you have duties that everyone has no matter what. Consequences do not change those duties except in extreme circumstances. This isn't relativism as the term is standardly used in ethics. It's all objective.

Now there's a sense in which all these views are relative, but that sense is one that isn't really worthy of the term 'relativism'. Of course some acts will be right in some contexts and not in others. It's wrong for me to try to make romantic overtures to someone when it wouldn't be wrong for a single person to do so. It's wrong for me to ignore a certain child's public behavior that needs to be addressed in public if it's my child, when other people maybe ought to ignore it. Particular kinds of relationships bring particular kinds of responsibilities that other kinds of relationships do not have. This is simply recognizing that difference circumstances bring different moral obligations. If you want to call that relativism, then fine. There is something that's relative here. But I don't think it's what people usually mean by the term. Allowing for different circumstances to be moral factors isn't the usual meaning of 'relativism'. The usual idea is that my own beliefs or my culture's beliefs determine what's right and wrong for me or for members of my culture. There's nothing like that in any of these views.

I'm not an expert on the efficacy of these methods. What I've seen is that there are people who know the issue well who emphasize that it's often unreliable, and there are people who know the issue well who say that often they can get useful information from it. As far as I can tell, these claims are consistent. In terms of the moral issue, this just means being more careful about how and when it's done and raises the bar a bit more as to when it would be morally worth doing. If it's less good at producing the good result, then the prima facie duty not to do it is just that much harder to overcome than it would be with a totally reliable method that intentionally caused great pain. As long as there might be some value to the information you get as a result, it leaves open the possibility that there might be cases when the information is of such great value because of your other, at the time more important, duties, that it's morally important to do it.

OK, "relativism" was not the right word. What I meant was that you seem to deny that there are actions which are inherently and absolutely wrong whatever the circumstances. I do not.

For example, I hold that murder is always and absolutely wrong. Yes, there is a matter of definition here; not all homicide is murder, for there is justifiable homicide in self-defence, and some would argue that capital punishment and killing in war are permissible. But no one can say that it was OK to murder someone else because of the special circumstances or the supposed benefit - even if the victim is thought to be planning a mass murder. It might be different, not murder, if the victim is thought to have their finger on the detonator of a suicide bomb, but, as the recent case in London implies, only if there is good reason for believing this.

Similarly with torture. Yes, there is a matter of definition; I suppose that if one did to another person what would otherwise count as torture in genuine self-defence that would be justified. But to me it is wrong to torture someone else regardless of the circumstances or the supposed benefit.

What I meant was that you seem to deny that there are actions which are inherently and absolutely wrong whatever the circumstances.

No, rejecting God is inherently and absolutely wrong whatever the circumstances. I'm not denying absolutism about everything. I think it's true at least about that. But I am denying that many of the duties held to be absolute by many absolutists are in fact absolute.

My main reason is because I think such duties sometimes conflict with other duties, such as the duty of benevolence. In a case of conflict, one way to resolve the conflict is to say that duties to benevolence never outweigh other duties (which is what absolutists often say). The consequentialist solution is to say that they always outweigh other duties. My preferred solution is that they sometimes do but often don't, depending on how important the other duty is and how important the particular case of benevolence is.

Murder is defined as killing that's wrong, so we need an action that isn't wrong by definition. Murder is never ok. It's just that lots of killings aren't murder if the circumstances override the duty not to kill. So this actually illustrates my position well.

Now I wouldn't define torture as wrongful causing of pain in order for the pain to achieve some good. There could never be a debate about whether it's ok to torture if we defined it that way. That's why you never debate whether it's ok to murder. People who think killing is justified in certain circumstances won't call it murder in those circumstances, and then they'll have to say that legal murder and moral murder don't amount to the same set of actions. So torture can't by definition be immoral.

I'm intrigued by the idea of torturing in self-defense. I assume you mean torture one person to defend against the same person, because I don't think torturing someone's kid to defend yourself against the parent will do. Most people would find that immoral. But torturing the person trying to kill you to prevent your own death is at least debatably ok. If that's right, then torturing seems more like killing and less like murder, which ends up agreeing with what I want to say.

Yes, by torturing in self-defence I was thinking of a hypothetical situation in which I have an instrument of torture in my hand and someone is about to shoot me so I zap them with the torture instrument instead. Or, less hypothetically, suppose that you define throwing a someone into ice cold water as a form of torture, as I would if that were used as part of interrogation of a prisoner. In that case, an example would be if I push someone into an ice cold lake in self-defence. But I don't think anyone would call this example "torture", which suggests to me that the word "torture" implies not just an action but some kind of intent, as "murder" does. But this would be moral only if I "torture" the same person who is threatening me.

I think we can assume the conversation I had with Keith in the last post. The conclusion was that torture requires more than just causing pain and getting some benefit. It's that the pain is intended to be the means of getting the benefit. So you'd have to throw them in so that their experience of the ice-cold lake will get them to do something different. That might then be torture. I can certainly imagine situations where something like that might save someone's life, but it would take a complex description of a case to get that.

I guess I can't figure out how we could define exceptions to the law. Would it be something like "if > 1,000 people are likely to die in less than 6 hours, then cutting off one toe of either foot is permissible?" It seems to me that anything less specific would be used as a blanket permission in practice. The White House is already (apparently) insisting that actions the US has prosecuted as torture in the past (waterboarding) are not torture. I am unwilling to provide even more latitude to such people.

To return to my genocide analogy: It would be impossible to create a safe exception to laws against it. Would one support a treaty banning genocide "except in cases of divine direction, communicated through accredited prophets?" I fancy that parts of Africa would see a boom in prophetic activity.

Or, to put it another way: Extreme violations of human rights are almost always justified in the eyes of the perpetrator. And that's almost always because the perpetrator thinks there's an emergency going on.

I should add, though, that many times "torture" is indeed a fuzzy concept for its opponents, partly because they sometimes use "torture" as shorthand for everything the anti-torture statutes prohibit. In fact, the Convention Against Torture (to which the US is a signatory) actually prohibits torture "and other acts of cruel, inhuman or degrading treatment or punishment." (When the US signed, it stipulated that this would mean the same thing as our own "cruel or unusual punishment" standard.)

So I suppose I sympathize with your linguistic complaint, insofar as haggling over the definition of "torture" distracts us from the fuller obligations imposed by the law.

What I had in mind is that it would be a judgment call, but it would involve oversight and safeguards not based on any carefully-defined limits but on people who have the job of non-partisanly but still accountably overseeing these things. So it would be something like the judicial oversight for the wiretapping, where an after-the-fact evaluation takes place with emergency cases but with a prior evaluation with non-immediate decisions.

this meaningless law that says we can't torture

I wonder if this is part of a general rejection of laws that use concepts that admit of threshold/borderline issues? Because, if so, just about all our laws are meaningless. There will always be questions of application (of the borderline/threshold variety). Case history helps to sharpen how the laws are applied, but there will always remain gray zones and conceivable cases that fall in those gray zones. Despite gray zones, there are often clear cases. So it is with the prohibitions on torture. Despite some possible borderline issues, the word itself has a fairly clear meaning and admits of clear cases on both sides. Given its fairly clear meaning, and the history of how it has been applied (both internationally, and by specifically by our own nation) the very strong evidence publicly available points to the conclusion that we have shamefully crossed way over that line.

But maybe you'd agree with that, Jeremy. I can't really tell whether or not you intend these torture posts to be some sort of defense of recent policies, or whether you'd agree about how indefensible our nation's recent actions have been in this regard, but are only wondering in a rather academic way about some interesting conceivable cases that might be tough to call.

It would be impossible to remove all vagueness issues in laws, but I think one of the goals of law is to specify particulars. We've got criteria on when something counts as first, second, or third degree murder and when it's manslaughter rather than murder. We have a distinctions between different kinds of rape according to the basis of claiming lack of consent, whether because of a minor under the age of consent, actual physical force, the presence of alcohol in someone's system, or just not presenting a clear enough consent. Having such distinctions is better than simply declaring murder and rape illegal without specifying anything about what counts as rape or murder or indicating situations when one instance of rape or murder is treated as worse than other situations or rape or murder. Why can't the same be true of torture? Even if we have a fairly comprehensive list of what counts as torture, we can itemize different features of torture whose presence or absence contributes toward seeing the act as worse or not as bad, and so on.

My main goal here is to try to move the discussion toward a clearer, more precise picture of what's being declared wrong and/or illegal and to make sure we're considering some issues that I think are morally relevant (or providing a justification for rejecting them) that I don't think a lot of people on either side are factoring into the analysis. My goal in these posts was just to express my frustration at how the discussion is taking place. I think people on both sides of the current debate could factor in what I've been saying without substantially changing their positions (although I suspect both sides might need to alter something if they accept what I'm saying).

I haven't been trying to say anything about particular methods in actual situations, which is what any stance on the current situation requires. That's not an issue that I feel particularly qualified to say much about, because I don't know a lot about a number of things I'd have to know something about to contribute meaningfully to the discussion.

But you want to stand by the claim that the laws against torture are meaningless?

I'm not sure I made any such claim. I did present a hypothetical case involving a law that prohibits torture without giving any sense of what that means, something that could easily be abused in either direction unless there are some controls on how to apply it. I don't think I made any claim that we've got such a situation right now. I wasn't trying to make such a claim, anyway.

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