Utilizing utilitarianism

Dean has an excellent post up at Hugh Hewitt's blog that makes the case for some version of what he calls torture, even though he really means "torture" (I'll get to the distinction in a few pages):

THE TORTURE DEBATE brings out a similar absolutism from torture opponents. They tend to casually assume that people who support “coercive interrogation techniques” do so because they’re congenital sadists who have just been waiting for this moment in history so they could begin water-boarding Muslims with impunity.

That’s not the case. The people who support coercive interrogation techniques, and I am one of them, do so sadly. Unfortunately, given the nature of the war we’re in, certain moral compromises are a necessity. Using coercive interrogation techniques is one of them.

Alas, Dean's case is almost exclusively utilitarian (as seen above)... can't make an omlet without breaking a few heads, that sort of thing. He conflates it with, e.g., the firebombing of Tokyo; while both "torture" and the horrors of war can be severally moral acts, they aren't the same thing and shouldn't be used as analogies.

And I'm not particularly sad about us using "torture" (not torture) on terrorists such as KSM. Nor do I feel joy. I do take some satisfaction in the thought of KSM's blubbering breakdown, blabbing every bilious villainy to his Marine Corps interrogators. But other than that, I have no opinion, because he is a no-count.

The problem with Dean's utilitarian argument is twofold:

1. It requires him to cede the moral high ground from the git-go, arguing that of course torture/"torture" (he doesn't distinguish, though we shall -- below) is morally wrong, but in such and such a case it's a necessary evil.

I think it a breathtaking leap of faith to declare that inflicting pain on some prisoners to gain information is necessarily a moral wrong, whether or not it's balanced by some greater good to be gained. How can anyone make such a pronouncement without even hearing the case?

2. Second, the argument that we may do evil X because it's for the greater good requires a threshold calculation that almost nobody is prepared to make -- because it's almost impossible to quantify.

Threshold calculation? Huh? Don't worry, rhetorical help is on the way...

On the threshold of a scream

We often say "the ends don't justify the means," but obviously some ends justify some means: If we could save a thousand innocent lives by harshly scolding a terrorist, I suspect John McCain, Hillary Clinton, heck, even Pat Leahy would go for it. So the problem becomes defining, for any particular end, what level of "means" is allowed -- where every term must be well defined.

It should be clear that there's no easy way to do this. In Dirty Harry, we watched Det. Harry Callahan (Clint Eastwood) stomp on Scorpio's (Andy Robinson) gunshot leg to force him to reveal where he buried a teenaged girl alive; and most of us thought Harry was justified. But that's because the circumstances were about as exigent as they can get: An innocent high-school girl was (we presumed) trapped in a grave, slowly suffocating to death; and equally important, by that point in the movie, we knew to 100% certainty that Robinson's character was Scorpio... and was guilty of murder and kidnapping.

That makes a big difference. Suppose we had not one but three suspects, and we were only 70% certain that one of them was the killer; would it be morally just to torture each of them, hoping that one of them (a) would be Scorpio, and (b) would reveal where he buried the girl? In that case, we're guaranteed that two of the people we torture are innocent of these serial killings and don't know anything about the girl; and there's a 30% chance that none of them is guilty!

So what threshold of certainty need we have about a person's guilt to inflict either torture or "torture" upon him, and what kinds of information are valuable enough to warrant such extraordinary treatment? That's a question impossible to answer in the abstract; it requires a case by case evaluation.

The futility of utility

Dean also raises the question of the effectiveness of torture or "torture," and here he does a good job, I think:

And then there’s the persistent intellectual incoherence of the anti-torture voices. They can’t decide whether they’re against torture because it doesn’t work or whether they oppose it solely on moral grounds. This confusion belies their own sense of their argument’s weaknesses. If you add up the consensus of informed opinions, torture sometimes gets you some really useful and actionable information, and sometimes gets you utter rubbish. Torture opponents know this, which is why they cherry-pick experts who argue that torture never works. Because if a consensus formed that torture produced any good information, and the media acknowledged that consensus, torture opponents know their position would become politically untenable.

This we can use: Obviously, if the only point of torture/"torture" is to extract information, we have no grounds whatsoever for using techniques that are highly unlikely to succeed; all of our moral argumentation should be focused solely on those extreme techniques that actually work... of which there certainly are some.

(And of course we must apply basic information testing to ensure that the prisoners are not simply telling us what we want to hear or what they want us to think. But that's true of any method of interrogation, including the interview conducted by a cop when he pulls you over for speeding, and need not concern us here.)

The mechanics of morality

So if we decide not to essay the utilitarian argument for torture/"torture," then how can we approach the problem? Let's tackle it head-on instead: What would make an interrogation technique "immoral" or "wrong" in the first place? There are several definitions, in decreasing order of universality. An action is immoral if...:

1. It violates a code laid down by God, whichever deity that represents to some individual, or by some other power (karma, the cosmic balance, etc.) that transcends all temporal powers; this is believed to apply to everyone, everywhere, whether he accepts it or not.
2. It violates a code of conduct laid upon every person within a society; this applies only to those within that society's jurisdiction.
3. It violates a code of conduct especially laid upon interrogators: police not being able to interrogate without first "Mirandizing" a suspect, for example; this applies only to those persons who hold the special status of approved government or private inquisitors with special authority beyond that of an ordinary citizen. (I'll lump constitutionality, law, and departmental regulations and pratices into this same category.)

(Call them the codes of God, Man, and Yale, if you prefer.)

Number (1) gives us little help; I don't recall any passage of the Bible (either Jewish or Christian) that discusses what level of interrogation can be used to extract information... the only limitations on the infliction of fear, pain, or injury by the government relate to punishment, not interrogation.

Clearly Islam doesn't restrict the use of either torture or "torture" during interrogations. It's possible that some sects of Buddhism or Hinduism explicitly do, but I would be surprised; and in any event, it's silly to suppose that a Christian nation like the United States would take its cue from the life of Siddhartha Gautama or from the Bhagavad Gita. So we must look elsewhere than God for moral guidance on interrogation techniques.

Number (3) is very specific; but it's too volatile, able to be changed on the fly or suspended in various circumstances. We cannot rely upon mere police department regulations or university standards of behavior, because all it takes is a new chief administrator to change the whole system.

So our primary guide must be number (2), the code of society: This is usually quite explicit, universal (at least, it's supposed to be universally enforced), and at the same time relatively stable over time, with defined and difficult (but not impossible) rules for change.

Social morality: a two-way street

Even within society, there are two classes of rules: a tiny fraction of moral rules that apply to everyone within the jurisdiction of the society, and the vast majority of rules and protections, which only apply to those who accept the social contract.

A better way to describe the distinction, however, is by who such rules are intended to protect. The first group of social rules, the ones that apply to everyone, are designed to protect us from our own worst impulses: they prohibit actions so vile and despicable, they "sear the very souls" of their actors. Even an ordinary person forced by circumstances to commit such horrific crimes irreparably debases himself: Treason, forcible rape, child molestation, and murder of innocents fall into this category. From such sins, there is no restitution, no absolution, and no return.

The second class of social rules and protections are designed to make life smoother. Violations can be expiated by punishment (incarceration, caning, depending upon society and circumstances) and the payment of weregeld. Violations can also be justified either in advance or ex-post facto by exigent circumstances: A hiker lost in the wilderness and starving to death finds an empty hunter's cabin stocked with food; it is perfectly reasonable for him to break in to prevent his own death... though he must leave a note and money (or pay compensation later, if he hasn't enough on his person).

But if the cabin in fact belongs to a bandit and is stuffed with stolen loot, then the owner cannot expect society to give a rat's patootie about his property; if he has a broken window and loses a bunch of his supplies, tough luck.

A man who lives a lawless life has no business demanding social protection from lawlessness.

Unlike the other kind of societal rules, which are designed to protect the potential perpetrator from debasing himself, these rules are actually protections for the potential victims... and the victims must be worthy of such protection.

To scare-quote or not to scare-quote

And at long last -- I know you've been holding your breath waiting, and I wouldn't want you to topple over from lack of oxygen -- we come to our distinction between torture and "torture":

• Interrogational torture (no quotes) comprises the deliberate infliction of death, maiming, or physical agony for the purpose of obtaining intelligence; by its very nature, torture violates the first type of social rule, the one that applies to everyone everywhere within the jurisdiction of the society;
• "Torture," by contrast, is here defined as extreme interrogational techniques that do not rise to the level of actual torture, but which achieve their results through fear, confusion, lies, false friendships, or the infliction of pain, discomfort, or annoyance that falls below agony, maiming, or death; "torture" violates only the second type of social rule -- the protections of which are not available to outlaws.

Thus, Dirty Harry stomping on the gunshot wound of the Scorpio killer is a type-1 violation; it is a moral wrong that can only be justified by the most extreme circumstances. And torturing a group of suspects in the hopes that one of them is actually the kidnapper and will tell the cops where the girl is buried is a moral wrong that is probably never justifiable.

However, police can (and do) trick a suspect into confessing by falsely telling him that his partner already fingered him as the ringleader. Prisoners can be denied privileges such as TV watching until they identify who shivved some guy in lockup.

And a terrorist cannot use social rules to shield himself from, e.g., waterboarding:

• Waterboarding itself is a type-2 violation, as it works its magic by the fear of drowning, not by actual physical torment (such as beatings, burnings, or mutilation);
• Terrorists, by definition, have violently rejected our society and its protections... thus, they have no right to demand protection from type-2 violations -- only from type-1 violations. All we need show is that our suspect is guilty to some chosen degree of certitude, and that the technique to be used is less painful or injurious than actual torture.

This is a much firmer moral basis for extreme interrogation techiques than Dean's utilitarian argument; this argument is robust, confrontational, and easily understood: we're not hurting KSM enough to call it real torture; and KSM has no grounds to toss and moan about it, considering how willing he is to go much further himself... and against actual innocents!

It is not, therefore, immoral for us to very selectively use non-torture "torture" on thugs like KSM. In fact, because the techniques, properly applied, save the lives of thousands of innocents, I can only end where I began: with the virtue of "torture."