On the McCain amendment that would ban all use of torture by American forces we wrote this on the 26th of last month:
The McCain amendment to the spending bill says this: "No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment." The amendment passed the senate 90 to 9 a couple of days ago, but it shouldn't have.
President Bush has threatened to veto the legislation and we hope he does, not because we don't think people suspected of terrorism should be given some protections from abusive treatment, but because this bill is so vaguely worded that it has the potential to severely cripple us in the fight against those who wish to destroy us.
For example, what exactly constitutes "degrading treatment"? Is it imprisonment? Solitary confinement? Ridicule? Being yelled at? Unless the word "degrading" is clearly defined almost anything done to a detainee could be interpreted, and will be interpreted by ACLU lawyers, as degrading, and our courts and military will be bogged down for years trying to get clarification on what is permitted and what isn't.
The same criticism could be levelled at the use of words like "cruel" or "inhumane." Where is the line between cruel and not-cruel? Is giving detainees institutional food cruel? What about the use of fake menstrual blood, or the use of deception in general? Does cruelty depend upon motive or is it merely a function of the act itself? If an interrogator uses methods which might be deemed cruel because he has reason to believe that the detainee has information about a terrorist attempt to blow up the Lincoln Tunnel in New York, would that be prohibited? If so, why? These and other questions need to be answered before the president should affix his signature to such a bill.
The McCain amendment is one of those pieces of legislation that politicians vote for in order to look good by appearing to be doing good. They're no doubt hoping that Bush will save them from their fecklessness and veto this charade.
Rick Lowery at NRO has similar thoughts:
On the McCain amendment, the chief problem with it I think is a lack of clarity (this entire debate has suffered from a lack of clarity, since Bush critics like to pretend that if you don't believe members of al Qaeda deserve Geneva protection, you want to let Charles Graner run wild). If McCain and Co. mean to outlaw all stress techniques--and it seems they do--they should come right out explicitly and say it. Then, after the next attack, if there are people in our custody overseas who should have been squeezed, but weren't, we will all know where to look when the finger-pointing starts.
If they don't want to outlaw all stress techniques (the wiser position in my view), then please write into the amendment which techniques are permissible and which are un-American. Then everyone will have very bright lines to follow and we will have lots of congressional buy-in.
A blanket ban on torture is a feel-good measure which allows us to bask in the glow of moral euphoria, but which is in fact morally inane. The McCain amendment should not be passed until it is made perfectly clear exactly what is meant by the word "torture." If this is not done American courts will, as we noted above, be tied in knots for decades by lawyers for detainees who will argue that mere incarceration meets the standard of torture in this amendment.
The lack of clarity doesn't bother David Batstone at Sojourners, however. Batstone says unequivocally that "There are certain acts that a follower of Jesus simply cannot accept. Here is one: A Christian cannot justify the torture of a human being." Well, yes and no. It all depends on what is meant by torture and the reasons why it is employed, but Batstone is not interested in ethical shillyshallying. He insists that "Christians must oppose torture under any circumstances." If one asks why, Batstone replies that:
[W]e can all affirm scripture when it says, "Do not repay anyone evil for evil, but take thought for what is noble in the sight of all.... Do not be overcome by evil, but overcome evil with good" (Romans 12:17, 21). When we confront evil with its own means, those means mark our own character.
In that regard, the practice of torture so fully embraces evil it dehumanizes both the torturer and its victim. No just cause can be won if it relies on torture to succeed. Democracy and freedom cannot result from a war fueled by torture, which is why so many Americans were shocked and angered by the disturbing incidents that took place at Abu Ghraib prison in Iraq.
Not only does Mr. Batstone commit the mistake of assuming that any instance of torture is evil, which is the very point in dispute, but he also cites the inexcusable behavior at Abu Ghraib as implicitly representative of all instances of torture or harsh treatment.
Yet just because some cases of causing a prisoner humiliation or pain are completely unjustifiable it doesn't follow that all cases are. The critical factor is the reasons for subjecting the prisoner to this treatment. If it is done simply out of anger, frustration, or as a sick form of entertainment then the act is surely evil. If, however, it is done for the purpose of saving lives and there is good reason to think that the detainee has information that will in fact save lives, then treatment which may be regarded by some as humiliating, degrading, or mentally or physically painful may be morally justified. Indeed, to believe that a prisoner has such information and to fail to extract it from him because of qualms about causing him discomfort is itself morally irresponsible.
Imagine, for example, that a young woman, your daughter, has been seized by jihadis in Iraq. A video is made by her kidnappers showing her, with a knife at her throat, pleading for her life. In tears and terrified nearly to death she struggles to relate how she has already suffered awful sexual abuse at the hands of her captors. Her abductors announce that she will be decapitated in 24 hours.
An insurgent has been arrested, however, whom the authorities have good reason to believe knows the whereabouts of your daughter, but he refuses to divulge the information. Forms of pressure that may fall afoul of the lofty ideals of the Geneva Accords are applied to persuade him to talk. They work and your daughter is rescued. Would you then take time out from your joy to condemn the interrogators who applied the pressure? Would Mr. Batstone? Would the knowledge of how she was rescued prevent you from thanking God for her deliverance? Would Mr. Batstone declare that the interrogators were morally evil to do what they did? Perhaps I simply have a blind spot on this, but I contend that the interrogators would have been morally delinquent if they could have done it and refused.
Mr. Batstone argues that we should "consider this: Who would Jesus torture? I cannot imagine Jesus finding a single 'exemption' that would justify such an abuse of any individual made in God's image."
Setting aside the theological conflict this claim finds itself in with much of the New Testament which tells us that one day Christ will judge the world and that a lot of 'unexempted' people made in God's image are going to find themselves in significant torment of some kind, I'm not much impressed by the "What would Jesus do" argument. In the first place, Jesus wouldn't have needed to apply pressure to the man to get him to yield. He presumably has other resources at His disposal.
Secondly, the WWJD argument is of very little utility in many areas of our moral life. Just because we can't imagine Jesus doing something doesn't mean it's wrong for us to do it. It's difficult to imagine Jesus making passionate love, or getting involved in politics, or doing the job of a police officer who's working undercover and lying about who he is, or killing the enemy in combat. Indeed, what would Jesus do if he must either steal food or let his child starve, or if He must lie to the Gestapo to save the lives of Jews He is smuggling out of Nazi Europe? Just as it may be right in such life or death circumstances to lie or steal, so too it may be right in life or death circumstances to employ humiliation, deception, or pain.
People who argue as Mr. Batstone and Senator McCain do (I'm loath to be critical of the senator on this score given the horrible treatment he endured at the hands of the North Vietnamese) almost always confine themselves to sweeping generalities and almost never examine how the implementation of their ideas would actually work itself out in practice. Yet it's irresponsible to adopt the ideas without considering their likely consequences.
Charles Krauthammer also has some good things to say on this topic here.