Senator Dianne Feinstein just sent President Barack Obama whole slew of recommendations for reining in the CIA and putting a stop to torture - a letter that is basically the sequel to the Senate's torture report released last month. Torture is already illegal in the US, but Feinstein wants to "close all torture loopholes."
The proposal should be a no-brainer, but the public response to the torture report has largely been indifference. A December 19 Washington Post poll showed that Americans - by a margin of two to one - feel that there are some cases in which torture is justified.
The Senate's report failed to shape public sentiment because it was morally weak and poorly built. In the year or so after 9/11, when Americans had been sensitized to security issues with a seldom-seen level of seriousness, there were some intriguing discussions about ethics and how far the US could or should go to protect itself. This remarkable 2002 article in The Atlantic basically frames the debate about torture: the ticking time bomb scenario.
The scenario goes something a bit like this: What if you knew that several stolen nuclear warheads were going to be detonated in various US cities three hours from now? There's no way to evacuate every major US city in three hours, so unless you find and disarm the bombs millions will die and millions more will be maimed. Fortunately, you've captured a terrorist who has the information. Unfortunately, he's not too keen on sharing what he knows.
Do you torture the guy to get the information, or do you just throw your hands up in the air and let millions of innocents be slaughtered just so you don't have to get your hands dirty wringing the information out of your prisoner?
There are different approaches to take in answering this kind of question. One school of thought is rules based - there's just some stuff you don't do because it's flat-out wrong. Another approach is all results-oriented - this action may or may not be wrong, but what's the end result? Sadly, there is no universally applicable way of deciding whether the means or ends are the more important factor.
And this is where the folks behind the Senate report screwed up. From a logical point of view, they took the result of one ethical approach - ends cannot be used to justify the means - and then turned it upside down and backwards and tried to peddle that too, essentially arguing that these means will never produce those ends. It's as if they were trying to get ahead of the people who might argue that the ends may justify the means in certain occasions.
I'm not sure if it's a lack of moral courage - not having the fortitude to say "torture is wrong, regardless of any hypothetical" - or being unable to accommodate room for exceptions in their moral framework - "torture is wrong, but if it really is a bunch of nukes and only three hours, let's talk" - but in trying to pretend they could take on both ends and means-based arguments in one fell swoop, the authors of the torture report set themselves up for failure.
It's not just that the report tried to argue that torture was wrong. It also argued that torture didn't work, and that torture was wrong because it didn't work. There's an appeal to defeating the consequentialist argument, but it's unnecessary and a mess.
It would have been better to make the simple point that torture is viscerally repugnant and stop there. Except for actual sadists, nobody - including those who feel the ends justify the means - thinks that torture is something to do for just shits and giggles. Who the hell has ever pushed a pro-torture policy proposal based on the claim that Abu Ghraib prisoner abuse was a good idea? Many people probably agree with the idea that torture is a bad, undesirable, nasty business. From a public debate point of view, that would have been the ideal time to stop and declare victory.
It may or may not be possible to prove that torture never produces any actionable intelligence. But even trying to prove that point invites the entire debate about whether or not the ends can justify the means. And the question about whether or not the ends can justify the means is something that a rule-based argument against torture will always have a hard time winning, because it's just an invitation for the peanut gallery to just make up crazier and crazier impossible scenarios which make the rules-based argument sound more and more horrible and heartless.
Here's the way to tackle the argument that the ends justify the means: "Sure, there might be some hypothetical ticking time bomb scenario where you're just going to say 'screw it' and reach for the thumbscrews, but let's not get ahead of ourselves here, folks." Don't argue that torture is bad because it doesn't work - because that essentially invites people to ask whether or not torture is okay if or when it does work.
I suspect the US public moved on to other debates over the last decade or so, but insofar as it is considered or discussed, taking a clear, black-and-white moral argument - torture is super bad - and then broadening it all kinds of directions to cover this, that, or the other gray area - torture is ineffective -doesn't make the core argument any bigger or comprehensive or important. It just makes it easier to disagree with.
The torture report should have been an absolute slam-dunk. The report's conclusions should have polled as highly as moms and apple pie. "Don't torture folks" should be an automatic corollary to "Truth, Justice, and the American Way," and the "Land of the Free and Home of the Brave."
But even if these flaws fatally damaged the effort to sway public opinion, that's an entirely different issue from whether they'll hurt Feinstein's latest push for reform.
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