Note: this is, from a philosophical standpoint, utter crap. Ill probably write more about it later. I still believe in a strong theory of human rights, but my thought process here needs updating. This no longer reflects my current philosophical reasoning.
December 16th, 2009, is a very sad day in history for the United States. It was this day that we decided that a certain group of people, because of their real or suspected involvement with one or the other groups around the world, are not to be considered people.
The ruling, which came in the form of the Supreme Court’s refusal to hear a case after the White House asked it not to, upheld the D.C. Circuit Court’s finding that the Guantanamo detainees are not “people” for the purposes of United States law. Additionally, the court found that The circuit court ruled that “torture is a foreseeable consequence of the military’s detention of suspected enemy combatants.” – an opinion written by Judge Karen Lecraft Henderson, who was appointed to the federal circuit court by Reagan in 1986.
The legal precedents for the unlawfulness of this ruling are clear: torture and suspension of habeus corpus are prohibited by the Constitution. The Universal Declaration of Human Rights (written in part by Eleanor Roosevelt, and ratified by the United Nations in 1976) prohibits torture and cruel, inhuman, and degrading punishment. The Geneva Conventions, which apply protection to prisoners of war, prohibits torture and inhuman treatment – in fact, it defines such actions as war crimes. The International Criminal Court (which has no jurisdiction over the United States) goes further, defining torture – rightly – as a crime against humanity.
This is not the first time that the United States Supreme Court has dealt with the question of whether or not a man was a person. This question was earlier debated in the Supreme Court case of Dred Scott v. Sandford in 1857 – and then, as now, they came to the wrong decision – that Dred Scott was a not a man, but a piece of property. The fears of what might happen if Dred Scott were granted the legal status of a citizen were accurately and chillingly summed up in the court’s opinion:
It would give to persons of the negro race, …the right to enter every other State whenever they pleased, …the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.
It would be over a hundred years before the United States, under the leadership of President John F. Kennedy, would introduce legislation (that ultimately passed) granting equal standing to all citizens of the United States, regardless of race, sex, country of origin, or color.
And now we have come to take a huge step backward. Legislation enacted in the name of the United State’s “War on Terror” has eroded not only the civil liberties of the citizens of the United States (a huge rant for another time), but even worse, has seen the suspension of a class of liberties even more fundamental to us as a species – our inalienable human rights.
What gives us these human rights? Why is wrong for an entire group of people to be deprived of legal counsel, habeus corpus, a public trial, and any semblance of humane treatment?
Torture
Without delving too deep into a treatise on evolutionary morality, I believe that human beings have an intuitive ethical sense that evolved from our most primitive roots. We are social animals, and our feelings about fairness, reciprocity, our desire not to be harmed and our reactions of displeasure at other’s suffering are universals that reach across all societies and cultures, and to a certain extent, species. Many social animals (dolphins, the great apes) exhibit what Michael Shermer calls “premoral sentiments”: “attachment and bonding, cooperation and mutual aid, sympathy and empathy…altruism and reciprocal altruism[…]”
In brief, our ethical behaviors are not (initially) informed by religious or social forces – even young children will attempt to comfort a crying baby1 and fMRI scans have suggested2 that children feel empathy at the pain of others, and any parent will tell you that kids develop a strong sense of “fair” early on. Our sense of ethics is ingrained on our DNA, but even more importantly, it’s there because it helps us survive – it’s “right” because treating others fairly and humanely is more conducive to a state of social harmony.
But all that is about what informs our sense of ethics – and where we get it from is, by itself, not an argument against the use of cruel and inhumane punishment. To put it simply, what are good and evil? Why is torture wrong?
It can’t just be that it involves inflicting horrible pain and suffering, although this is part of it, and I’ll come back to that later. In war, both sides use technologies (landmines, napalm) that inflict horrible suffering, and these are both perfectly legal and expected outcomes of war. It can’t just be that the prisoner is helpless, or that the imbalance of power between the inflictor and recipient of the suffering is so high. The whole point in warfare is to put yourself in a position where you can cause massive casualties from a protected position.
My argument against it comes from two principles I believe are self-evident: man’s sovereignty over his body (physical freedom) and his mind (intellectual freedom). A human’s function or purpose is to do what makes it human, what sets it apart from everything else – in man’s case, his ability to reason is unique. Man has the ability to reason and discern things on his own independent of anything else.
However, humans tend to thrive best in groups instead of completely on their own – and we tend to form large groups naturally anyway – and when working as a society, it’s impossible to make everybody happy at the same time – and therefore I subscribe to the view3 that the ethical thing to do is what maximizes the happiness among the greatest number of people. But – and this is important – because we agree that “happiness” can be distributed, we must take into account higher or greater utility to individuals. Freedom represents the ultimate utility because it allows the individual to seek his own happiness. Therefore torture, slavery, genocide, would require unrealistic levels of social utility to ever be justified, and would still be unethical, because they represent the ultimate denial of individual happiness / freedom.
Further, one must take into account the possibly unforeseen consequences for societal utility – inhumane policies would cause fear and general anxiety and could increase for all if human rights are commonly ignored – fear of their rights being gradually eroded, or intense displeasure at another’s basic rights being so flagrantly violated. One must consider the long-term consequences when making decisions.
But the morality of torture isn’t utterly separate from the prudential aspects of its use. For one thing, it almost always results in inaccurate information.4, 5
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One question at any rate was answered. Never, for any reason on earth, could you wish for an increase of pain. Of pain you could wish only one thing: that it should stop. Nothing in the world was so bad as physical pain. In the face of pain there are no heroes.
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George Orwell, 1984
People will say anything to make excruciating pain stop, and when being tortured, they do. Army Col. Stuart Herrington, a military intelligence specialist who conducted interrogations in Vietnam, Panama and Iraq during Desert Storm, was sent by the Pentagon in 2003 to assess interrogations in Iraq. He posits that torture is simply “not a good way to get information.” In his experience, nine out of 10 people can be persuaded to talk with no “stress methods” at all, let alone cruel and unusual ones. Asked whether that would be true of religiously motivated fanatics, he says that the “batting average” might be lower: “perhaps six out of ten.” And if you beat up the remaining four? “They’ll just tell you anything to get you to stop.”4
Further, there are side effects larger than just the “right now” aspect of obtaining intelligence. Torture endangers the people fighting for you be encouraging reciprocity. If you want to win hearts and minds, and have any sort of claim to moral superiority, treating prisoners in a cruel and inhumane manner will ultimately be detrimental to your goals.
And the “ticking time bomb” scenario is not only extremely emotionally manipulative, it’s incredibly unlikely. If you’ve seen “24”, you know this scenario: suppose there’s a terrorist bomb in my child’s school, and I, working for the CIA, have captured a terrorist in on the plot. There’s 10 minutes left ‘till it blows up unless I can get the code needed to defuse the bomb from the terrorist. Do I have the right to torture him? You might think the answer is obvious, but it’s not, because this situation has never happened. And it is not likely to ever happen. The ticking time bomb is a useless fantasy. Anybody can imagine some nightmare doomsday scenario when the use of torture would be the only way to solve a situation, but I can think up a situation where the only way to save the day would be to throw a cow off the Empire State building while wearing a clown suit – the fact that we can think of a situation where any specific behavior is the “only” way to generate a favorable outcome says nothing about its likelihood.
Silly scenarios like the ticking time bomb are based on a likely faulty assumption, the assumption that torture will provide useful evidence – and since in almost all cases it would be impossible to definitely trace the outcome, good or bad, to the use of torture, the ambiguity that remains more than balances against the perceived benefit of inflicting horrible suffering. At any rate, as humans making moral judgments, we must adopt the principle of universality, because if we don’t, we have no ethical grounds to stand on. As Noam Chomsky says:
“If an action is right (or wrong) for others, it is right (or wrong) for us. Those who do not rise to the minimal moral level of applying to themselves the standards they apply to others — more stringent ones, in fact — plainly cannot be taken seriously when they speak of appropriateness of response; or of right and wrong, good and evil. In fact, one of the, maybe the most, elementary of moral principles is that of universality, that is, If something’s right for me, it’s right for you; if it’s wrong for you, it’s wrong for me. Any moral code that is even worth looking at has that at its core somehow.”6
Finally, in the very few remaining cases when torture definitely would provide a favorable outcome, it is still immoral for the reasons above, and sets a poor ethical precedent. Who would be the judge of when it was “appropriate” to use it? History proves (see: Abu Ghraib, the Spanish Inquisition) that torture systematically leads to cover-ups, self-deception, and outright lying on the part of the tortures and the governments who authorizes them.
The Unconscionable Stripping of Human Rights
This post has delved largely into the ethics of torturing “enemy combatants”, but this is only the most egregious of the wrongs being perpetrated at Guantanamo. President Obama has put the entire weight of the government behind a relentless series of court decisions that strip the most basic rights of an entire groups of people. One-hundred forty-four years after the Civil War, we have established the as the policy of the United States government that whole classes of people can have their liberty stripped away – and their torturers and tormentors protected and coddled by authority – at a moment’s notice, with no charges, no defense, no redress, on nothing more than the suspicion that they might be an “enemy combatant,” according to the arbitrary definition of the state. These captives are no longer considered “persons”. They are, literally, sub-human.
Going back to Noam Chomsky, to have any position of moral superiority, we must apply our definitions of right and wrong to all persons universally. When we take away the inalienable human rights of an entire group of people, we allow ourselves to be ruled by fear, we violate the ethical standards of behavior that any reasonable person would agree upon, and we break the law. We set up a standard of behavior that says “We will follow moral and legal precepts until it suits us.” It should be self-evident that before the law, all must be equal. It should be further evident that regardless of race, nationality, sex, color, creed, or whatever arbitrary sorting we wish to apply to ourselves, we are all members of the human race, endowed with conscience and the ability to reason, and rules governing the treatment of the rest of the members of our species should apply to all, be respected by all, and be directed toward the betterment of all mankind.
Today, I am ashamed of America.
I am ashamed that one of the greatest nations on earth, seen as a bastion of freedom and opportunity and justice could see the day come when it claimed that a group of people no longer had the rights of human beings under its laws – we have allowed ourselves to be ruled by panic and the foolish desire to keep ourselves safe at any cost. It is wrong in every sense of the word – and I pity men who live in such fear.
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All human beings are created free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
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Article 1 of the Universal Declaration of Human Rights
Exit, stage left.
Sparks
1: Zahn-Waxler, C., & Radke-Yarrow, M. (1990). The origins of empathic concern. Motivation and Emotion, 14, 107-130.
2: Decety, J., Michalska, K.J., & Akitsuki, Y. (2008). Who caused the pain? An fMRI investigation of empathy and intentionality in children. Neuropsychologia, 46, 2607-2614
3: This is a (very bad / incomplete) explanation of weak Utilitarianism, and I deliberately did not go into great detail. Eventually, you have just take the practical route and agree that your beliefs represent a “Useful Fiction”, as Filip says. Any questions about my philosophy can be answered with the response “Because it’s useful”. Alternatively, “Because I said so.” 😛 As Walt Whitman wittily said : “Do I contradict myself? Very well then I contradict myself.” Every practical moral system has exceptions and context-dependent rules.
4: http://www.washingtonpost.com/wp-dyn/articles/A2302-2005Jan11.html
5: http://www.alternet.org/rights/28585/
6: http://www.zmag.org/znet/viewArticle/14701