Torture and Situational Ethics

This past week, Senate Democrats released a 6,000 page report about CIA tactics in the post-9/11 but pre-Obama world. It is colloquially known as the “torture report,” although it centers around what the CIA called “enhanced interrogation techniques,” which were approved by the Bush administration, funded by Congress, and considered legal by various federal judges. Many of those techniques, though, are also considered torture. The report brings up three questions. The first, which I will mostly ignore, is whether the report should have been released at all, and, if so, should it have been released while the United States is still at war with an enemy that is both at issue in the report and can be expected to use the report as fodder for retaliation and recruitment. Certainly it appears as if the report is an attempt by several senators to re-write history. If they are known as the senators that brought wide-ranging, unethical practices to light, then perhaps it will be forgotten that they were fully briefed on the techniques and provided funding to implement the techniques without notable objection. The second question is whether the “enhanced interrogation techniques” were in fact torture. For the sake of this post, I will assume that many of them are (partly because of course they are).

The third question, and the one I want to focus on, concerns the ethics of torture. Of course, not many think torture is normatively good and desirable; but a significant amount of Christians think that in certain contexts, it is a tool unfortunately necessitated by the evil of our enemies.

Before I jump in I want to make one small comment about why this even matters. I don’t want to assume that everyone thinks this should be an issue that we should have and express an opinion about. After all, we aren’t in the military or counter intelligence, tasked with defending the country from attacks from enemies bent on our destruction. Shouldn’t we leave this analysis to the professionals? We have no skin in the game, so to speak, and no expertise in matters of war. Who are we to judge and assess these documents? There are two reasons I think we should have an opinion on this issue. One is because we live in America and we have the privilege of trying to influence others, and ultimately our leaders, toward what we believe to be the righteous stand on this or any issue. Secondly, there is a specific ethical issue at stake in this situation, and we can use it to describe to our family, neighbors, and friends, how a Christian has a different perspective on torture than someone simply defending America at all costs.

A popular picture on Facebook focused on a body falling face-first from one of the burning Twin Towers with the caption “I don’t care what we did to the terrorists after 9/11.” The implication is that in the post 9/11 world, we knew very little about terrorists except that they wanted to kill us and were capable of doing so. We didn’t know about their infrastructure, financing, numbers or strategy, and we did what we had to do to (successfully) protect ourselves from being attacked again.

Often, the ethical permissibility of actions that can be considered torture is promulgated in the form of hypotheticals. If there is a ticking bomb and we have in custody someone we know to possess valuable information about the location of the bomb, what lengths can we go to in order to extract the information? The implication is that what we are willing to do in that scenario is and should be different than what is legally permissible in normal rules of engagement. Sometimes the hypothetical is personalized; if your family were in imminent danger, how far would you go to ensure their safety? The personalization of various hypotheticals (whatever their value as a movie tagline) is easily retorted; the lengths to which a citizen will go to protect his family is not the harbinger by which we determine the permissibility of state-sanctioned action. Although the broader hypothetical is more difficult to answer, it shares with the personalized version an important characteristic; the proper answer to those posing the question is often determined by situational ethics.

Situational ethics is the perspective that an evaluation of the ethics of a particular account depends on its particular context, not an absolute moral standard.

From a Christian perspective, the only universal law to be followed in every situation is the law of agape, or brotherly love. Proponents of situational ethics include such luminaries as Bonhoeffer and Kierkegaard. Bonhoeffer, for instance, argued that the notion of a universal moral standard was too close to Kant’s categorical imperative; instead, decisions should be based on what is most helpful to your neighbor (the Good Samaritan parable as a normative system of ethics). Applied to the specific hypothetical then, situational ethics calls for a specific answer to particular contexts. If the particular context is the extraction of a confession from a common criminal, then actions we might call torture are unethical. But if the particular context is a ticking bomb, then actions we might call torture are perfectly ethical, probably even demanded.

There are a couple of problems with the application of situational ethics to the context of torture. First, they are so unlikely as to be irrelevant. In reality, there often is not a ticking time bomb, nor anything near certainty that someone we have in custody has sure knowledge about the situation. Much of our hypotheticals are influenced by 24; we would do better to remember that something can simultaneously be both good television and terrible public policy. This would be less of a problem if it were only common citizens that were influenced by the surrealism of 24, but unfortunately that appears not to be the case. One Army interrogator claimed that Jack Bauer motivated many of his techniques. A staff JAG attorney who authorized 18 new “enhanced interrogation techniques” said, “Bauer gave a lot of people ideas.” And one lawyer who was at some of the 2002 brainstorming sessions claimed that Bauer was inspirational at those meetings.

Apparently, many people, including high-ranking military and CIA personnel need to be reminded that we should no more base public policy on 24 than we should base our theology on the Lost finale or our beliefs about the possible existence of fairies on Peter Pan. When we discuss the ethical permissibility of torture, let’s at least be realistic. We aren’t talking about ticking time-bombs and suspects we know have valuable information. We are talking about possibly dangerous situations down-the-road about which our suspect may or may not have valuable information.

Even still, the objection remains. It could be argued, “Sure, it’s not likely. But it’s conceivably possible. And if, conceivably, the ethics of actions we might call torture are different in a ticking time-bomb than in a more normal situation, then we’ve already agreed about everything except how far we can extend the ethical permissibility.” So we are still left needing to answer the hypothetical. But that leads us to the second problem – situational ethics is unbiblical. Douglas Wilson wrote a pretty good response to the notion of situational ethics as a normative paradigm; the main problem is that situational ethics is just consequentialism with more nominal nuance.

Consequentialism is the normative ethical theory that the rightness or wrongness of a given act depends on the consequences of one’s conduct.

As Christians, we rightly reject such a theory; the ends, after all, decidedly do not always justify the means. Situational ethics essentially says the same thing; presumably, it would argue that “to love your neighbor” in the context of a ticking time-bomb scenario means, if necessary, taking actions we might call torture to save untold neighbors, and is thus permissible, which is no different than saying that the consequence (loving our neighbors by saving them) justified the conduct (torture). Surely this is not right, though. Waterboarding, physical torment or some other action we might call torture might extract information we could not have otherwise gotten that leads to saving people’s lives; but then, so would slowly cutting off his fingers with a butter-knife. Or killing his brothers-in-arms, one by one. Or making him watch you kill his family. How does situational ethics functionally distinguish one from the other? Additionally, before taking actions we might call torture, we have no way of knowing whether they will be effective or not. If they are not effective, and we extract no information, does that change the ethical equation?

Another problem is that situational ethics is internally incoherent. Bonhoeffer’s formulation of ethics as loving your neighbor rather than a universal moral standard suffers for several reasons. First, it necessarily ignores the answer Jesus gave to the original question: “Who is my neighbor?” Jesus’ response was that everyone is our neighbor, even the hated Samaritans. It’s unclear how we can then decide that it is loving to our neighbor (the suspect) to torture him that we may save other neighbors. Second, it fundamentally misunderstands Matthew 22, where Jesus articulated the greatest commandment, i.e. to love God with all our hearts, minds, souls and strength and to “love our neighbor as ourselves.” Clearly, those commandments were meant to be the standard by which the rest of law was based, but it did not render the rest of the law obsolete. Loving our neighbor is an important aspect, but is not a replacement, of a biblical ethical standard. Finally, it collapses on itself. Who determines who is loving, or good, or ethical in a given situation? In a general sense, what standard of love are we using? The individual? How can we be sure he or she knows what is actually loving in a situation? In the context of the ticking-bomb theory, who gets to decide the ethics in a given situation? The interrogator? And how many people have to be at risk for a given technique to be implemented? 10? 100? 1000? How sure do we have to be that a certain number of people are at risk? 100% sure that 10 people are at risk? 1% sure that 1,000,000 people are at risk?

Situational ethicists contend that in reality, everyone agrees with them. Who would condemn someone for lying to the Nazis about Jews hidden in their basement, even if we agree that lying is morally wrong? But a proper response does not depend on their formulation of ethics. It is perfectly reasonable to presume that forming words that do not reflect reality is not absolutely morally wrong; in fact, misleading Nazis about Jews was always morally right. A distinction can be made between saying words that do not reflect reality for a morally positive purpose and what the Bible calls “lying.” The difficulty lies only in the fact that we have one word for two distinctively different acts. Rahab did morally good thing by “lying” about the Israelite spies.

Richard Cohen once said, “Torture is always ugly; but then, so is the hole in the ground where the Two Towers used to stand.” And while there’s a certain poetic appeal to his implication, I think a proper response is this;

The hole in the ground where the Two Towers used to stand is ugly; but then, so is becoming what we despise.

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