You may have heard the ruckus following the
Inqy's hiring of noted sadist John Yoo to write editorials about legal issues. I know that many people have a problem with it, esp. on le blogosphere, including
Will Bunch at Attytood and
Philebrity, which is now boycotting. I think it's wrong that they hired him, because he basically made the torture policy at Gitmo, via writing the "
torture memos" and is kind of and international criminal and should be tried under the Geneva Conventions for war crimes. But that's just me. For a more reasoned view on the subject of torture I turn it over to my esteemed friend and colleague, Jason.
I was going to write about ugly beards in baseball or whatever, so this is bringing up the level a bit here.
On Tortureby Jason Patterson
There are a few levels to the argument that I think require examination before one decides to pick a side in the torture debate. First, one must decide whether waterboarding as a technique even qualifies as torture.
Thankfully, this first problem I find easy to resolve. According to my understanding of the procedure, waterboarding is very simply the process of making someone feel and believe that he/she is drowning. On the face of things, I contend that such treatment is categorically torture. If the deliberate imposition of tremendous physical and/or mental suffering through the fear of drowning isn't torturous, then really, what is? (as a less-than-scientific example, ask people you know what their personally viewed worst way of dying is: a great many that I have asked claim it is drowning) Even if the prisoners experience no physical effects from the procedure, I would be appalled if any definition of torture excluded the use of mental anguish from actions which qualified.
I take great pride in discovering now that this conclusion could have been established (with probably much more authority) simply by consulting Wikipedia, which blatantly
states that “
Waterboarding is a form of torture.” Oh well.
Despite the fact that this first part has been rather the entire focus of the Democratic side of the argument (waterboarding is torture, “The United States does not torture,” ergo we should not have used waterboarding, lest we stop being the United States or something like that), the real crux of things only comes into play once the second issue (and the Republican side) is confronted: should waterboarding be used?
As mentioned, there is at least one clear way to go about deciding whether we as a country should implement waterboarding. Looking at things from a deontological perspective (D for Democrat, no less), one could easily adopt a simple categorical imperative against torture in all instances. If one chooses to do this, the whole debate becomes entirely centered around the first issue and the whole idea of “does it work?!” goes away with the thought-process going something like “Who cares if it works or not, it's not something we should be doing as a country!”
The Republican talking-point on the topic, however, has stressed not the idea that waterboarding is torture or not, but whether it works. The most frequent argument I have seen strategists make has been a consequentialist one: does waterboarding produce valuable information? Yes? Then it should be done, especially when that valuable information saves lives by preventing a terrorist attack.
Both of these positions have their
pros and cons. In regular times, and perhaps even some extenuating circumstances, waterboarding (i.e. torturing) someone does not produce benefits that outweigh the costs (national image reduction, increased propaganda for terrorists, risk of false information, national morale, legal backlash, etc. etc.). So in these instances, perhaps the standard ought to be one where the presumption is a categorical “No” to waterboarding. Unfortunately, when faced with the prospect of the oft-cited ticking clock toward a catastrophe, the entire notion of categorically refusing to torture seems weak. The motivation to save someone's life strongly outweighs the possible negative image results of torturing people---we could be less popular in the international community and I would care very little if it meant we saved some lives.
The real solution to the problem is one which I think borrows from a more credible source,
Michael Walzer. I don't have the time to detail his outline, but he wrote a great deal on nations attacking citizens during wars (essentially, state-v-state terrorism) in order to gain the upper hand in war. The model he proposes fits rather nicely in resolving the problem of torture. The anti-torture approach for the United States should be espoused and constantly touted as the policy of the nation: we should not legislate exceptions, and in basically all respects we as a nation should categorically say no to torture. Since torture should not be used except in the most outrageously difficult of situations, this will rarely pose a problem.
Now, I am half-borrowing from a Chris Matthews segment I caught a few weeks ago with this, but I liked the idea: when facing the crisis (Walzer's “Supreme Emergency,” if you will) the President should break the law and torture. His actions would not necessarily be morally right (in fact, they may be morally and legally
wrong), but they would have to be rationally justifiable. By refusing to ever legally provide an outlet for torturing individuals (and, arguably, by doing something even after the fact) we would force the President and/or the CIA etc. to have to work their asses off to explain why they tortured anyone. I am fairly certain that the numerous times that we have used waterboard people thus far would not come close to passing a Supreme Emergency test, and thus they should be prosecuted: they broke the rules and couldn't put up a solid defense if they tried.
The real problem isn't whether we can ever conceivably torture someone in order to save thousands or more lives. The problem isn't whether waterboarding is torture. The issue is under what circumstances we should employ torture and not be entirely outraged. Employing it in any scenario where it is not the ABSOLUTE last resort passes neither the consequentialist (i.e. utilitarian) nor the deontological test.
P.s.
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Eventually 
