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?