Kinsley's Anti-Torture Argument

It looks as if the McCain amendment on torture has unstoppable momentum. Evidently, our intrepid Congressmen and women are scared to death of being seen as even remotely in favor of being mean to terrorists. But as I've written on several occasions recently it's a mistake to embrace a prohibition on cruel, inhuman, and degrading treatment without clarifying exactly what cruel, inhuman, and degrading treatment are. Without guidance on this matter American interrogators are going to be very reluctant to aggressively question detainees, and consequently innocent people are going to die.

There should indeed be laws governing the treatment of prisoners, but to ban absolutely anything that could be construed by a sufficiently clever or creative lawyer as cruel or degrading is to needlessly jeopardize peoples' lives. Even so, Michael Kinsley disagrees and asks some thoughtful questions of those who believe, as I do, that laws against torture should not be absolutized. For starters, he poses this scenario:

What if you knew for sure that the cute little baby burbling and smiling at you from his stroller in the park was going to grow up to be another Hitler, responsible for a global cataclysm and millions of deaths? Would you be justified in picking up a rock and bashing his adorable head in? Wouldn't you be morally depraved if you didn't?

Tough question, of course, but ethical conundrums which rely upon situations that can't possibly occur in the real world are singularly unhelpful in clarifying important issues. In the real world there simply is no possible way anyone could know what Kinsley posits, so he's proposing an impossible state of affairs and then asking what one would do. There's no way to answer the question.

Or what if a mad scientist developed a poison so strong that two drops in the water supply would kill everyone in Chicago? And you could destroy the poison, but only by killing the scientist and 10 innocent family members? Should you do it?

This scenario, or one like it, is much more plausible than the first and indeed has occured frequently since 9/11. We have a chance to kill a high-value terrorist murderer but certain of his innocent family members may be killed as well. Would it be wrong to do it? Not necessarily. If this is the only practical way to get the terrorist and as long as the deaths of his family are incidental to the attack on the terrorist then, although it would be tragic, it would not be immoral. It would be to a pacifist, of course, but I don't believe Kinsley to be a pacifist.

Or what if an international terrorist planted a nuclear bomb somewhere in Manhattan, set to go off in an hour and kill a million people. You've got him in custody, but he won't say where the bomb is. Is it moral to torture him until he gives up the information?

Yes, of course, provided that no more pain is applied than what is necessary to elicit the information. Even John McCain agrees with this. He just wants to make it illegal and say it'd be acceptable, in an instance such as Kinsley proposes, to break the law.

Indeed, it's a strange aspect of McCain's proposal that almost everyone who has talked about it, including John McCain himself, and most recently Colin Powell, have said that, although there should be no exceptions to the ban on torture, there are circumstances which would make violating the law against it the right thing to do, and that the person who breaks the law in those circumstances should expect that the law will take them into account. In other words, they're saying, torture is not always wrong, but we should pretend that it is. This is a rather unsatisfactory way of looking at the matter. Kinsley himself admits the inadequacy of this position:

But what about [the ticking time bomb] conundrum? Will you eschew torture even when a few minutes of it, applied to a very bad person, would save a million lives? One answer is that the law wouldn't really be enforced in such an extreme situation....Surely [though] every law should at least aspire to be enforced. Or-an even more modest standard-a law should not depend on unenforceability for its very justification. Furthermore, a law expresses a social norm even apart from its enforcement. If the hypothetical situation ever arises, something will happen. What do we want that something to be?

But back to Kinsley's main argument:

If you would torture to save a million lives, would you do it for half a million? A thousand? Two dozen? What if there's only a two-out-of-three chance that person you're torturing has the crucial information? A 50-50 chance? One chance in 10? At what point does your moral calculus change, and why?

Good question, but I don't see any reason why it shouldn't be done to save even a single life. Nevertheless, his question about uncertainty is more difficult. It's not without analogs, however. We face the same problem with capital punishment. Just as in legal cases in which a man may be sentenced to death, we have to be as sure as we can be that the person being interrogated actually possesses the information needed to save lives. Sometimes we may be wrong, but we must do everything practical, given the circumstances, to insure that we're not.

Kinsley continues with his cross-examination:

What about someone wholly innocent? It's hard to imagine a situation where someone who refuses to supply life-saving information could be considered "innocent." But it's not impossible [i.e. suppose the terrorist is unbreakable under pressures applied to his person, but he has a child he dearly loves...] In this cold, hard world, allegedly facing a challenge greater than any the civilized world has faced before, would you torture an innocent individual for five minutes [if it would make the terrorist talk] in order to spare a million innocents from death?

No. The position taken here at Viewpoint is not utilitarian. The utilitarian would argue that the pain sufferered by a single individual is outweighed by the good of saving the lives of the many and therefore the infliction of the pain is the right thing to do. This is unacceptable. The Biblical command to do justice is a morally binding absolute, and if justice means anything, it means that you don't willfully and intentionally harm innocent people, even if it's to accomplish some great good.

If you say yes, [it's okay to] go ahead and torture an innocent person, you have pretty much abandoned the various exquisite moral distinctions that eased your previous abandonment of an absolute ban on torture. But if you say no, [because] my own moral hygiene, or my country's, forbids the torture of an innocent individual, even if the indirect but predictable consequence is a million human deaths, you are more or less back in the camp of the anti-torture absolutists whose simple-minded moral vanity you find so irritating.

Kinsley errs here in confusing the absolutes in question. Just as there is a vast moral gap between murdering an innocent child and executing the thug who murdered her, so, too, is there a vast moral gap between absolutizing torture and absolutizing justice. The presumptive reason for banning torture is that in the usual case it is either uncompassionate or unjust, but in the instance of using pain or degrading treatment on someone who plans to cause the deaths of others, in order to prevent those deaths, it would be uncompassionate or unjust to fail to do so.

Having said that, I should add that I see no objection to deceiving a terrorist into mistakenly believing that his loved one is being tortured if this were the only way to elicit life-saving information from him. Such a tactic, however, would probably be prohibited as "inhuman" under McCain.

Finally, it should be noted that liberals, who scoff at the slippery slope argument when it comes to gay marriage, who fondle nuances like Midas fondled gold, who disparaged Ronald Reagan twenty years ago for having a too simplistic view of the world, and who otherwise abhor absolutes, are now, when it comes to torture, embracing the slippery slope argument, disdaining nuance, and reveling in simplistic absolutes. If the subject matter weren't so somber it'd be funny.