Torture and Just War Theory, Or, Gary Bauer Is a Horrible Little Man

Digby wonders what it is with putatively religious folks like Gary Bauer trying to justify torture.

There’s no explaining why Bauer is such a creep. Some people are just like that. And by “that,” I mean: bloody-minded authoritarians who seem to derive an inordinate amount of pleasure in devising theoretical justifications for the suffering of others.

But while there’s no good answer for that question there is one for how it is that Bauer’s moral reasoning goes off the rails. It’s actually pretty straightforward, and Digby will no doubt be relieved that it doesn’t require theology, just some commonsense ethical reasoning.

Bauer bases his defense of torture on Just War Theory, the tradition of critical reflection on why nations go to war and how they ought to behave once they are at war. Here’s Bauer:

Under Just War Theory, a war is just only if it is defensive and meets four strict conditions. The requirements are: that the damage inflicted by the aggressor must be lasting, grave and certain; that there must be serious prospects of success; that all other means of ending the war must be shown to be impractical or ineffective; and that the use of force cannot produce evils graver than those to be eliminated.

That’s a fair summary of the criteria of just cause, reasonable prospects, last resort, and proportionality. There are others, but this where Bauer is taking his stand, so we’ll meet him there.

I won’t bore you with all the details, but Bauer argues that the “ticking time-bomb” scenario meets all the tests of Just War Theory. Now, this is disingenuous to begin with. For one thing, as Susie Madrak points out, Khalid Shaikh Mohammed—one of Bauer’s prime examples—gave up his useful information after interrogators switched away from waterboarding to the rather advanced technique known as “sitting down and talking to him.” Turns out that making a connection with a detainee is a very effective technique. In fact—and I cannot stress enough that I am not making this up—American interrogators “broke” one subject by giving him sugar-free cookies.

On the other hand, American interrogation teams have staged mock executions and tortured children, including Khalid Shaikh Mohammed’s, and their supervisors contemplated crushing the testicles of others.

The history matters here. The widespread pattern of abuse of “enhanced interrogation techniques,” from Gitmo to Abu Ghraib to Afghanistan and whatever black site hellholes the CIA has squirreled its detainees away in, demonstrates that those techniques are not as innocent as their defenders would have you believe. Nor can they be surgically and clinically applied, as we are told.

But stipulating for the sake of argument that torture is somewhat more sophisticated than bashing the crap out of somebody with a baseball bat, what of the serious moral arguments Bauer marshals in its defense?

Turns out they’re crap, too. If you have to torture someone to find out when the next attack is coming, and how to respond to it, then pretty much by definition you don’t know that the damage will be “lasting, grave and certain.” And that’s even agreeing that a preemptive attack is fair game under the “just cause” criteria, which is by no means a settled issue.

Likewise, “serious prospects of success.” If your only hope is to waterboard some guy who may or may not have the information you need, then you don’t have a reasonable chance to fend off the attack. The subject could be lying, he could be misinformed, it might take too long to get the information out of him, and even so, you might not have what you need. Bauer points to supposed gains-via-waterboarding by the Mossad, which of course must be taken very seriously, since no military force would ever lie to justify dubious treatment of its prisoners.

Perhaps torture might prevent an otherwise unstoppable attack, but I doubt it. A hint to Mr. Bauer: “24” is fiction. In the real world, what works best is good old-fashioned shoe leather, commonsense security measures, and the defusing of political tensions. A comprehensive Middle East peace plan would do more to prevent the next terrorist attack than a thousand waterboardings, despite anything the Likudniks might tell you.

As for not producing “evils graver than those to be eliminated,” I suppose one might argue that torturing one man to save the lives of many others meets the test of proportionality, at least considering when to take action.

But how you act in war matters as well. Proportionality is a concern here, too: you can’t nuke Tehran (for example) simply because you suspect that the Iranian regime might be a threat to national security. Likewise, torturing 50 innocents to get useful information out of one violates the principle. Then there’s the matter of discrimination: one of the core tenets of the Geneva Peace Accords, as well as Just War Theory, is that non-combatants ought to be distinguished from combatants.

That means, in practice, that you don’t burn down a village in reprisal for guerrilla attacks. It also means that prisoners of war are treated with respect. This, as has often been pointed out, is a reciprocal arrangement: America does not torture (at least officially) because it expects that US servicemembers will not be tortured. But the principle is actually broader. If we can torture a prisoner of war, what ethical obligation is there to prevent our enemies from killing the POW’s they take?

Or really, if we’re not going to distinguish between civilians and combatants, why shouldn’t they slaughter ours indiscriminately? Justifying torture in a sense gives permission for terrorism, then.

Bauer wants us to judge torturers primarily on their intent. Apparently if you mean to make your nation safe, anything’s forgivable, even crushing the balls of a scared child. That’s disgusting twaddle. Torturers don’t torture because they have noble intentions and wind up going too far. They do it because they can do it, because they get off on dehumanizing and holding power over other people. Nations torture, on the other hand, because they are afraid of what the neighbors will say if they don’t project some power.

That Gary Bauer has to write a disingenuous column in defense of such knuckle-dragging ethics ought to tell you everything you need to know about his capacity for moral reasoning.

I did say at the outset that understanding why Bauer was wrong didn’t require any theologizing, and I will stand by that. Just War Theory is not, strictly speaking, a theological ethics, even though it was developed by the church.

But really, all you need to know about torture can be summed up by a quip from one wag on Twitter: “You know, when the Romans were torturing Jesus, they thought it was keeping them safe.”

Wonder how that worked out for them?

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