Is Torture Utilitarian?

Last week was one helluva week in the moral life of this nation—much of importance hangs in the balance. It began on April 16, 2009, with the release of four memos by the Department of Justice. All four (one dated August 2002, and three May 2005) were written at the request of John Rizzo, General Counsel to the CIA. They make for strange reading.

The first memo sets the tone for the entire corpus. Abu Zubaydah (the highest ranking al-Qaeda operative in US custody when he was taken on March 27, 2002) was believed to have information that he refused to divulge to CIA interrogators at Guantanamo Bay. The CIA requested permission to enter a new, “increased pressure phase” of interrogation. The CIA justified its request by noting a level of “chatter” equivalent to that perceived just prior to the 9/11 attacks, and their conviction that this prisoner had significant information he had not yet revealed.

The memo specifically addressed ten new techniques the CIA wished to apply: from grabbing and slapping the face, to physical stress and confinement, to sleep deprivation, to the odd practice of confinement followed by the introduction of an insect implied to be dangerous, to waterboarding. Yes, waterboarding—we are still arguing about waterboarding in late April 2009.

And this was where the legalese began. Various memos suggested that if these procedures were conducted at Guantanamo, they were not technically done within US territory and thus Article 16 of United Nations Convention Against Torture did not apply. They accepted without review the CIA’s claim that waterboarding was a technique still used in the Navy’s advanced training. They accepted without review the claim that “the CIA believes that this program is largely responsible for preventing a subsequent attack within the United States” (May 30, 2005 memo, page 3). And they noted that the Fifth Amendment prohibition of “cruel, unusual and inhumane treatment” had been recently interpreted by the US Supreme Court to forbid any conduct that “shocks the conscience,” though this was an entirely subjective and context-specific standard, and therefore probably not relevant to the CIA’s stated concerns (in other words: to stay out of trouble).

But far and away the most bizarre attempt to justify waterboarding in the memo-trail was presented in the first, dated August 1, 2002. Throughout the analysis, the lawyers had been careful to discuss both the physical and the mental implications of extreme interrogation techniques. But with waterboarding, they changed course. “Pain and suffering,” they concluded, “is best understood as a single concept, not as distinct concepts of ‘pain’ as distinguished from ‘suffering’” (August 1, 2002 memo, page 11). What does this mean? To them it means the following: waterboarding (a technique that creates the sensation of drowning and generates an automatic physical response) does not create physical pain, just reflex action. And if it does not create physical pain, then it does not create mental pain. This logic beggars description.

The expressions of outrage were intense and immediate. Surely someone needed to be prosecuted for this. But who? President Obama was very clear that he wished to look forward, not backward, eager to close the book on this embarrassing chapter in US foreign policy. Persons acting in good faith, believing that they were authorized to do what they did, should not be targeted. Fair enough.

Then came the distinction worked out at the Nuremberg Trials: We cannot prosecute every SS guard, but we can certainly prosecute the authors of the policies… and the authors of these memoranda.

At first the president balked at the suggestion—and with good reason. It is a dangerous precedent, a new administration looking back in order to prosecute the questionable actions of its predecessors from a previous administration. This looks like the very politicizing of the judicial branch that properly cost Alberto Gonzalez his job.

But then the president seemed to waver on Tuesday, suggesting at a press conference that the authors of the policy could indeed be reviewed by the Department of Justice. The Senate Armed Services Committee appeared inclined to agree. And so it began to seem as if Donald Rumsfeld, Dick Cheney and the rest might be in real trouble.

Dick Cheney, never a political wallflower, took up the attack. President Bush has been as silent and as invisible as he has been since Inauguration Day.


What is striking about the quality of this debate is that it is being conducted in strictly utilitarian terms. And that leads to some very bizarre moral reasoning. Utilitarianism is number-crunching, but of a very peculiar kind; in its crudest forms, it seems to imply that you can measure pleasure and pain, and that by maximizing the pleasure of the greatest number of people, you may be able to justify the infliction of pain on a select few.

We see that strange logic at work in these memoranda.

First, the CIA justified waterboarding with the “ticking time bomb” scenario. Can you justify torture if you know the prisoner possesses information about a dirty bomb that’s about to be detonated, or a second 9/11-style attack? The problem with this scenario is that it works well on television (where we now have MI5 to go along with 24) and in the movies, but not in real life. All the CIA could ever assure the Department of Justice was that it believed the “chatter” indicated an imminent threat, and that it believed waterboarding had deterred such attacks. The language of faith is telling here; religion is not utilitarian, however interested in consequences it may be. Certainly “belief” alone ought not constitute the basis of Department of Defense or CIA policy decisions. This much we should have learned from our reliance on faulty intelligence in the lead-up to our second military invasion of Iraq.

Defenders of the policy insist that waterboarding works, that we got real (the operative word is “actionable”) intelligence we wouldn’t have obtained any other way. Opponents of the policy argue that there is no solid evidence to suggest that this claim is true—how, after all, do we know the intelligence is good, and that it would not have been achievable in another way? Others go still further, Senator John McCain chief among them. The revelation of these memoranda and of the use of such techniques is the best recruiting tool we could ever have given to al-Qaeda. Again, does waterboarding have utility or not? Does it create more pain than pleasure? These questions have pretty well defined the contours of the current debate.

Buried near the end (at page 37) of the fourth memorandum, dated May 30, 2005, is a discussion that gives away the lie that this is a debate about utility. The CIA’s use of waterboarding is nothing like that allegedly used in US military training. For starters, a CIA prisoner may be subjected to two 2-hour “sessions” per day. In any given “session,” the detainee may be subjected to as many as six applications of water, each lasting up to 40 seconds. That is eight full minutes of the experience of drowning in a single day. And the technique may be applied on five separate days within a 30-day period.

Then comes the final sentence, so bland and understated as to be easily missed. Zubaydah was subjected to the waterboard 83 times in August 2002, and a detainee described as “KSM” 183 times during March 2003.

Let us pause right there, to permit those statistics to take on a human face. In one month, 183 applications of the waterboard. If by “application,” the CIA means one 40-second experience of simulated drowning, and if this were repeated twelve times in one day (the alleged limit), and if this were repeated five times in the course of a month (again, the alleged limit), then that would add up to 60 such events in a month. Yet the CIA itself admits to having performed this action 183 times in a month.

Something does not add up. And it is not simply the numbers.

It is the very logic of waterboarding that unravels here. If, as seems more likely, the CIA subjected “KSM” to the waterboard six times a day for an entire month, then this adds up to the stated 180-plus applications. In other words, the CIA waterboarded this inmate more times in a day than his religion requires him to pray. Put another way, we are being asked to believe that the CIA interrogators really “believed” that waterboarding session number 151 was the one that was going to do the trick, succeeding where 150 previous attempts had failed.

Protecting Us from the Worst in Ourselves

If we have learned nothing else from the shocking photographs taken at Abu Ghraib, then it is this: torture is not about utilitarian calculation—it is about humiliation. It is forbidden because men and women under the stress of combat cannot be trusted with that kind of power to dominate another soul. Anti-torture statutes are about protecting us from ourselves and from one another, protecting us from the worst in us that war so often reveals.

War can also reveal the best in us: nobility, heroism, courage, self-sacrifice, and generosity under extreme duress. But such realities are blotted out—where they are not outright erased—by the current revelations of these CIA procedures.

Here is where many US citizens, religious and not, Christian and Muslim, across the political spectrum, might well find this a crucial moment to make common cause. And we might even find it inspiring to do so, despite the ugly realities. What utilitarianism is unable to articulate is that there are some things you would never do, not ever, because winning the fight would not be worth the degradation. The point is that not all moral dilemmas can be reduced to a cost-benefit analysis of pleasure and pain, good and evil. There are some kinds of pain a morally serious person ought never to inflict.

Torture—defined as the deliberate degradation and humiliation of a person through the infliction of physical and mental pain—is simply not what we do to other human beings. It is because we understand a human being to be a creature of singular and inexhaustible moral worth (whether due to God, Nature, Providence or Philosophy) that we oppose the infliction of torture.

The “we” here is not liberal or conservative, not the devout person or the atheist. It is “we the people,” a remarkable range of religious and cultural identities unified by certain Constitutional principles that are not in the least utilitarian, though of the very highest moral consequence to everyone.

Perhaps something like this common ground is what this supremely awful week might yet enable us to see, and to say.