The National Association of Evangelicals (NAE) has released an 18 page document laying out the theological, moral and legal basis for its opposition to any resort to torture. It is in many ways a fine document and in some ways an unfortunate one. The document is commendable for its affirmation of human dignity and human rights grounded in divine revelation and the imago dei, but it really does not grapple convincingly with the matter of torture. It's biggest failing, though not its only failing, is that it absolutizes its proscription of torture and makes no allowance for the motive or reason for which torture is employed.
It is certainly true that for Christians subjecting someone to torture for the purpose of punishment, revenge, or the amusement of the torturer is absolutely and heinously wrong, but there are circumstances in which, in our opinion, a ban on torture makes no moral sense.
Over the course of several posts we'll critique the reasoning in the NAE's document and try to show why we think it to be inadequate. We begin with this claim:
We believe that a scrupulous commitment to human rights, among which is the right not to be tortured, is one of these Christian moral convictions.
There is of course for the Christian a prima facie right of all persons to be secure and safe in their person, but that this right can never be forfeit is obviously false. We do not feel that a policeman is violating someone's rights when he kills an attacker in self-defense, for example. In other words, no human right is absolute, inviolable, or inalienable. My right to life and liberty does not confer upon me a further right to commit crime with impunity. A man's right not to be harmed is surrendered the moment he sets out to harm another.
The sanctity of life is the conviction that all human beings, in any and every state of consciousness or self-awareness, of any and every race, color, ethnicity, level of intelligence, religion, language, nationality, gender, character, behavior, physical ability/disability, potential, class, social status, etc., of any and every particular quality of relationship to the viewing subject, are to be perceived as sacred, as persons of equal and immeasurable worth and of inviolable dignity. Therefore they must be treated with the reverence and respect commensurate with this elevated moral status. This begins with a commitment to the preservation of their lives and protection of their basic rights. Understood in all of its fullness, it includes a commitment to the flourishing of every person's life.
All of this is, of course, entailed by Jesus' command to love our neighbor. It does not follow, however, that a commitment to "the preservation of their lives and protection of their basic rights ... [and] to the flourishing of every person's life" is absolute. If it did then we would be enjoined by such a commitment to abjure always and everywhere the use of force in defense of ourselves and in defense of others. There are some who strive to make the case that Scripture enjoins this degree of pacifism upon us, but I find their arguments to be in direct conflict with the law of love and the command to do justice.
It is not loving to permit an aggressor to harm one's family when the harm could be prevented by using force against the attacker. It is foolish to insist that police not use force to restrain criminals. It would be suicidal, given the world in which we live, to do away with our military, and it is unjust to refuse to punish criminals. Yet were we to follow the logic of the NAE's argument we would have to renounce the use of force in every situation and bend to the will of the criminals in our midst, suffering their depredations, rapes, and murders while refusing to take up arms to prevent them.
If we hesitate to follow the NAE logic this far, as I think all but a few would, then we must acknowledge that there are times when force against another human being is legitimate. The question then is what kinds of force are legitimate and under what circumstances may it be employed?
We'll take up those questions as we continue to examine the NAE statement. Meanwhile interested readers may want to peruse the document at the above link.
With this post we continue our examination of the National Association of Evangelicals' statement on torture. See here for Part I of this critique.
The NAE takes the position that torture, or any treatment which degrades another human being, is categorically wrong. It is our position at Viewpoint, however, that while torture is grossly immoral to the point of evil when used as a means of punishment or revenge, or almost always when used in interrogating prisoners, or when done simply to entertain and amuse the torturers, as apparently was the case at Abu Ghraib, there are nevertheless circumstances in which torture is not only not wrong, but morally incumbent. Indeed, the NEA drafters admit as much, albeit inadvertantly, when they write that:
Human rights are not first of all about "my rights," but about the rights of the vulnerable and the violated. And they are about responsibility, indeed obligation, to defend the weak. All people, all societies, and all nations have a responsibility to ensure human rights.
This is certainly true, but the weak and vulnerable are often the intended victims of brutes and thugs. If in order to carry out our mandate to defend the weak and vulnerable we find that the only way to keep them from harm is to use coercive force against someone who has information that would save the victims, whose rights, those of the victim or those of their would-be killers, should we regard as paramount? Just as in the case of a policeman defending himself or a bystander from an aggressor, when someone is an active (or a passive threat) to another their right not to be harmed is no longer in effect.
Consider the case of a terrorist named Rauf, captured last August by the Pakistanis. It was information obtained from interrogating Mr. Rauf that uncovered the plot to simultaneously blow up ten airliners last summer using liquid bombs. Suppose now the following circumstances obtained at the time: The authorities knew that something terrible was in the works and that Mr. Rauf knew what it was. Imagine, too, that Mr. Rauf could not be enticed to yield his knowledge of the plot through any means other than being subjected to pain, fear, or humiliating treatment. Finally, imagine that your spouse and children would have been aboard one of those planes. Would you maintain that, these hypotheticals notwithstanding, if you had your way the Pakistani intelligence service would not have been permitted to employ the methods they apparently did employ to persuade Mr. Rauf to talk? A simple yes or no will suffice.
If you answered yes, try this: Imagine looking your loved ones directly in the eyes and telling them that.
Or consider a case similar to that of John Couey who kidnapped nine year old Jessica Lunsford, tortured and raped her, and then buried her alive and left her to die. A similar crime occured in Florida some years ago where the victim was buried in a box that had enough air to allow her to live for about a day. Suppose, counterfactually, that the kidnapper had been apprehended, admitted that he had abducted the girl, told the police that she was in the box with only a few hours left to live, but he refused to tell them where she was.
Suppose further that the girl is your daughter. Finally, suppose that one cop, against all regulations, applies excruciating coercion against the kidnapper until he yields the information, resulting in the rescue of your daughter. Subsequently, you discover how her rescue was achieved. Would you register disapproval with the authorities? Would you insist that the cop be prosecuted for his violation of the rights of the kidnapper? Would you feel that the police officer's act was morally inexcusable or repugnant?
If not, then you do not agree with this statement in the NAE document:
Human rights apply to all humans. The rights people have are theirs by virtue of being human, made in God's image. Persons can never be stripped of their humanity, regardless of their actions or of others' actions toward them. In social contract theory human rights are called unalienable rights. Unalienable rights are absolute and completely inviolable; a person cannot legitimately cease to have those rights, whether through waiver, fault, or another's act.
As we suggested in part one this is a very bad argument. What are these unalienable rights? Surely they include the right to life, liberty, and the pursuit of happiness. But if these rights are unalienable, as the NAE insists, then not only is it always and everywhere wrong for policemen and soldiers to use deadly force, it is also wrong to incarcerate criminals. If one were to protest that criminals and enemy combatants forfeit their rights, at least so long as they are a threat to soldiers, police officers or to society, then it is being conceded that the rights in question are not "unalienable." They are rights we possess as human beings until such time as we become a threat to the welfare of others.
The NAE continues:
An expansive approach argues that there are three dimensions of human rights, and all must be equally valued by any society that respects any of them: the right to certain freedoms, especially including religious liberty, the right to participate in community, and the right to have basic needs met.
But surely the NAE understands that these are prima facie rights. That is, a person has them until such time as they become a threat to society or otherwise disqualify themselves from possessing them. A man whose religion calls for him to behead infidels, for example, surely does not have the right to practice his religion freely.
The NAE document also says this:
Human life is expressed through physicality, and the well-being of persons is tied to their physical existence. Therefore, humans must have the right to security of person. This includes the right not to have one's life taken unjustly (equivalent to the right to life), ...
Now the NAE is contradicting itself. Having declared human rights to be absolute they set out in this statement to qualify them. Apparently a just taking of a life is permitted by the NAE, but if so, why could not similar qualifications be imposed on the following:
...the right not to have one's body mutilated, and the right not to be abused, maimed, tortured, molested, or starved (sometimes called the right to bodily integrity or the right to remain whole). The right not to be arbitrarily detained (an aspect of due process) and the writ of habeus corpus are also based specifically on the concept of bodily rights. In particular, the writ of habeus corpus is based on the right not to have the government arbitrarily detain one's body.
It is acceptable, in fact obligatory, for the state to detain people, deprive them of their right to freedom, as long as it is not "arbitrary," but then what is happening to the absolute proscriptions that the NAE insisted upon earlier on. In other words, no right is unalienable or absolute. Whether someone can be deprived of life or freedom or any other property depends upon why these things are taken from the person. The NAE, however, disagrees:
Even when a person has done wrong, poses a threat, or has information necessary to prevent a terrorist attack, he or she is still a human being made in God's image, still a person of immeasurable worth.
Perhaps, but so are the people whose lives and well-being hang in the balance. Why should the terrorist's life be regarded as of greater worth than theirs? Why should the terrorist's rights count more heavily than the rights of your family aboard that plane or your nine-year old daughter suffocating in that box? If subjecting the terrorist to harsh treatment offers the only possibility of saving innocent lives it is morally incumbent upon us to do that. To stand by and do nothing when we could possibly have saved peoples' lives is immoral.
It is also absurd. If the terrorist succeeds, even though he's in custody, and innocent lives are lost, he can be executed according to the NAE's reasoning. But until he succeeds he cannot be in any way treated harshly even though it is reasonably certain that apart from harsh measures he will cause the murders of innocents and consequently be put to death. It's better to allow the innocents to die and their killer to be executed, according to the NAE's logic, than to prevent all that death by causing the murderer to suffer temporary discomfort or pain. It's hard to see how this makes any sense at all.
More on the NAE's argument later.
This post is the third in our series on the National Association of Evangelicals' statement on torture. See also Part I and Part II of this critique.
The NAE document states that:
... the articles of the Geneva Convention and of the Universal Declaration on Human Rights are unambiguous:
Article 3:1c of the 3rd Geneva Convention (1949) says:
Persons taking no active part in hostilities ... shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: violence to life and person, in particular, humiliating and degrading treatment;
According to the Geneva Conventions, cruel, inhuman, or degrading treatment (CIDT), although falling short of torture, is still completely prohibited along with all forms of torture. "The overriding factor at the core of the prohibition of CIDT is the concept of [the] powerlessness of the victim."
This raises very difficult problems however for anyone serious about trying to survey the moral boundaries of the war against terrorism.
At first glance it would seem that the proscription of humiliating and degrading treatment is a prohibition that every nation, including ours, should respect. But in fact it's meaningless and dangerously restrictive. It is little more than a feel-good clause that allows the signatories to present themselves to the world as humane when in fact, if taken seriously, it's virtually impossible for any nation to abide by.
What determines whether an act is humiliating or degrading, after all, is more the individual's reaction to the act than the act itself. Most people would probably feel humiliated if yelled at or insulted. Many Muslims would feel humiliated if placed in a subordinate position to a woman. If we are to take the Geneva article seriously, which the NAE insists we do, then we should never allow a Muslim detainee to be interrogated by a woman if he would find that humiliating. Most of us would find prison both humiliating and degrading. Suppose the Muslim jihadis do as well. If so, 3:1c would, if strictly followed, forbid us to incarcerate terrorists. In other words, the sensibilities of the prisoner must determine what measures we can take against him, but this is an absurdly untenable position to place ourselves in.
Perhaps the NAE would reply that I exaggerate when I claim that 3:1c would effectively proscribe incarceration, but how could it not? Are some forms of humiliation, like imprisonment, acceptable to use against detainees but others not? If so, how are we to distinguish between acceptable and unacceptable forms of humiliation? Who decides what's humiliating for a detainee and what isn't? The interrogator? The secretary of defense? The detainee?
Even if the military would be arbitrarily permitted to "degrade" terrorists by confining them to a cell and depriving them of their freedom, there are lots of things they would not be allowed to get away with: Shouting at prisoners, for example, or questioning their manhood, long-term solitary confinement, the use of deception to get information, giving the prisoner Western food, shackling, limiting trips to the restroom to whatever number. In short, anything the prisoner found demeaning would be proscribed by a serious reading of the clause to which the NAE would have us fully submit.
Perhaps they would respond that we must not take 3:1c so literally, but if not then how do we ascertain how it should be understood and how can it be binding if we don't know what it means?
In lieu of some clear and meaningful definition of humiliating and degrading treatment, adherence to 3:1c places needless restrictions on our military authorities. Military and civil interrogators, afraid of crossing some invisible line that could get them hauled before a war crimes tribunal, will tend to do as little as possible to elicit life-saving information from terrorist prisoners. In an environment where our children's lives are at constant risk from the machinations of those who will stop at nothing to kill them, it would be irresponsible to insist that our interrogators adhere to such vague guidance as 3:1c offers, much less that something as vague as 3:1c could be morally binding.
The NAE document, by embracing the nebulous imperatives of 3:1c, renders itself irrelevant in the task of determining what, exactly, is morally permissable in attempting to extract life-saving information from a detainee and what is not.
This post is the culmination of our series on the statement by the National Association of Evangelicals (NAE) in which they categorically condemn any and all resort to the use of torture. Previous posts in the series can be found here: Part I, Part II, and Part III.
The drafters of the NAE document state that:
The U.N. Convention Against Torture puts it this way: "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture."
Deterring evil ends without resorting to evil means are tasks in tension, but any democracy must face dealing with this tension.
When torture is employed by a state, that act communicates to the world and to one's own people that human lives are not sacred, that they are not reflections of the Creator, that they are expendable, exploitable, and disposable, and that their intrinsic value can be overridden by utilitarian arguments that trump that value. These are claims that no one who confesses Christ as Lord can accept.
This is a very odd assertion. Remember that the NAE, following the Geneva Convention, includes in its proscription of torture any humiliating or degrading treatment which, as we argued in part III, could include almost anything from yelling at the detainee, to employing a female to interrogate him, to placing him in prison. Even if the detainee had information that would save lives the NAE would prohibit us from obtaining that information if doing so was demeaning to the prisoner. But let's set that aside for now.
Let's talk just about inflicting physical distress. As we have said in previous posts this is a great evil when done under almost all circumstances in which it usually occurs in this fallen world, but it is simply fallacious to argue that therefore it is always a great evil.
Consider the classic scenario in which a terrorist has planted a suitcase nuke in a major city set to go off in a few hours. The authorities have captured the terrorist and he has admitted as much, but he refuses to say where the bomb is located. Tens of thousands of people will die in the blast and subsequent radiation fallout. Many more will be gravely sickened. The economy of the nation will collapse if the city is a financial hub and millions will be made destitute. The entire nation may collapse if the target city is Washington, D.C.
It is known that there is a form of physical coercion called waterboarding which actually does no harm to the subject but induces the sensation of drowning which results in panic. No one has been able to endure it for more than a minute or two without breaking and talking. The terrorist could in a matter of minutes be made to produce the location of the bomb, but the NAE would absolutely prohibit obtaining the information in that manner. They say that we would be "communicating to the world and to our own people that a human life (the terrorist's) is not sacred, that it is not a reflection of the Creator, that it is expendable, exploitable, and disposable, and that its intrinsic value can be overridden by utilitarian arguments that trump that value."
I would suggest that the NAE is communicating that exact same message by refusing to save the lives of tens of thousands of innocent men, women, and children simply because it would entail subjecting their murderer to extreme discomfort until he provided the information necessary to save them. I suggest that the NAE statement places greater value on the life of the terrorist than it does on the lives of innocent Americans. It is a case of moral inversion that is so bizarre as to be literally incredible.
But let's set aside the question of the justification of torture and ask why we should think that this particular technique, waterboarding, constitutes torture. What are some possible answers to that question that the NAE might give?
Perhaps they'd say it's torture because it's painful.
But apparently there's not much pain involved, and if there were it would only be brief since people only hold out for a few seconds when subjected to it.
Perhaps it's torture because it does lasting harm to the detainee.
Evidently not. The individual is no doubt shaken but none the worse for the experience. In fact, interrogators have had it done to them just so they know what it feels like.
Perhaps it's torture because it's done to punish.
But it's not. It's done to elicit information. Once the subject cooperates the treatment ceases.
Perhaps it's torture because it's unpleasant.
Surely, though, an unpleasant experience is not ipso facto torture. If it were, then putting someone in restraints or feeding them institutional food would be torture.
Perhaps it's torture because it frightens the terrorist.
Indeed, it does frighten the terrorist, but so does the prospect of being executed for their crimes or being put in prison for the rest of their life. Should they not be threatened with these possibilities? Why must we be so squeamish that we are reluctant even to scare people who are trying to murder our children?
Perhaps it's torture because it elicits information against the detainee's will.
It certainly does motivate the terrorist to divulge information, but the fact that they don't do so willingly is hardly reason to think that the method is somehow tainted. If it were then phone taps, etc would be torture since they are means by which we obtain information from people who would not otherwise willingly give it.
Perhaps, it's torture because some men are exerting power over another.
Yes, but so is a cop who stops you for a traffic violation, and we don't consider that torture.
The fact is that the suspect has complete control over how long the process lasts or whether it will even begin. This is an important point. The terrorist is essentially in total control of what, if anything, happens to him. He's no more damaged when it's over than when it started. He experiences no sensation other than panic and though he's frightened, he knows that he really is not drowning. So why would waterboarding be considered torture but, say, lengthy imprisonment, which may do some, or even all, of the things mentioned above, is not?
I really have no answer to the question. It simply makes no sense to me to ban this technique, but if someone can point out something that I'm overlooking I'm certainly willing to reconsider. Meanwhile, the NAE should rescind their document in order to recraft a statement which is more rigorously thought out and which does justice to the complexities of the issue.
RLC
