The Sane and Rational and Decent Torturer

Responding to Dick Cheney’s infamous performance on Meet the Press, Andrew Sullivan delivers an admission at odds with his thesis of the irredeemable evil of the Bush Administration’s enhanced interrogations program. Sullivan addresses a set of exchanges between Cheney and MTP host Chuck Todd as follows:

[Cheney] was then asked about the 26 people whom the CIA admits were tortured by mistake. One of them was even frozen to death. A sane and rational and decent human being, who presided over the program that did this, might say: “The decision to torture was an extremely agonizing one, but I still believe defensible. But of course the torture of innocent people is horrifying. I deeply regret the chaos and amateurism of the program in its early phases.” So what did Cheney actually say? When confronted with the instance of Rahman Gul, the individual tortured to death, Todd asked what the US owed these torture victims. Cheney actually said this:

The problem I have is with all the folks we did release who ended up on the battlefield … I have no problem [with torturing innocent people] as long as we achieved our objective. ((Excerpt extended for clarity after discussion in comments. The phrase “with torturing innocent people,” in the second set of brackets, was supplied by Sullivan.))

In short, Cheney, who appears to have decided prior to his media appearances never to acknowledge the significance of the issues being brought before him, stuck to his position of utter remorselessness. Yet judging the policy and the people that Cheney was seeking to defend cannot hinge on a single man’s mode of expression, or on whether the former Vice President makes his case well or effectively, or, alternatively, on whether he is a repugnant and disturbing presence on the political-cultural scene.

Sullivan’s complicating admission is that “a sane and rational and decent human being” might have “presided over [a] program” that led to “the torture of innocent people.” Though there is more to be said on closely related questions, as I began to say in my previous post, Sullivan puts the central problem of intentions versus results in a strong form, if likely unintentionally. In other words his statement escapes the bounds of his intended program of polemical assault on Cheney and colleagues: If “a sane and rational and decent human being” might have presided over the program and explained it in the way Sullivan thinks Cheney might or should have explained it, then what is left of Sullivan’s argument other than personalized disgust and enmity? If a sane and rational and decent human being might have presided over the program, and have ended up in a position to offer Sullivan’s preferred defense of it, then what would prevent a sane and rational and decent human being from supporting the program or its concept, from participating in the program, or from working within it or the larger defense policy apparatus to curtail particular abuses or opportunities for abuse?

Among major voices in the torture discussion, CIA Director Brennan came closest to speaking the lines Sullivan supplies, but, since Brennan was not speaking in his own personal defense, he was not in a position to offer an apology of that type. Others – like program “architect” James Mitchell – have said effectively the same thing, arguing that the program was designed to be humane or not truly torturous by a careful definition, but that abuses occurred, and were in fact reported or otherwise addressed by key operatives. In other words, the horrific incidents that Cheney refuses to acknowledge in a sane and rational and decent way were not intended consequences of the implementation of the program, or not even within the program as formally constituted.

This distinction that Sullivan perhaps inadvertently emphasizes is the same one that the New Yorker’s “Close Reader” Amy Davidson diminishes as a mere “rhetorical trick,” and that Jonathan Chait, in a convoluted exercise meant to describe a Republican politics of torture denialism, attempts to obscure in the name of clarity. Many accusers set the distinction aside entirely, in the interest of attaching as high a tortured body count as possible to American evils, but the issue is not an abstruse moral nicety: It is a normal feature of any judgment of guilt or types of guilt and types of mitigation or even of innocence: the difference between causing harm by accident, causing harm through negligence, and causing harm “with malice aforethought.” To state the obvious, since the obvious so often seems to escape our leading arbiters of the good and the true, these distinctions are critical distinctions not only in our justice system – in which they may, in capital cases, decide the difference between no punishment at all, a jail sentence, and the death penalty or other most extreme available punishment  – but in everyday life. The problem, also a problem both for philosophy of justice and for everyday life, is that, though the distinctions are as simple as they are critical, their implications are, of course, not always simple. They entail the most complex and enduring, some would say irresolvable, moral problems known to us.

For someone who has already concluded that no defense of the program in any respect is admissible, the distinction will be irrelevant, but to say so would be to say that no sane and rational and decent human being could ever have been fooled into presiding over the program, which not only implies that no one would be able to defend it defensibly, but furthermore that no aggressive interrogation of any type would have been justifiable, since a dividing line between the acceptable and unacceptable would inevitably have been tested, and, in being tested over and over again, eventually have been violated. I began to discuss this difficulty in my prior post: The problematic underlies much of my previous writing on the torture topic, and it would figure crucially in any serious and non-prejudicial examination of John Yoo’s attempt to narrow the definition of the torturous. In short, any program of aggressive interrogation takes into account the possibility of enabling acts that would be deemed immoral, and a moment’s further thought will show that any act of war or any program enabling the use of police power at all includes the virtual certainty of harm to the innocent. If we are not operating from an absolute pacifistic morality or from some anarchistic utopian perspective that makes war or even self-defense impossible, then a defense of the program must be potentially admissible.

No matter how the program was constituted, whatever rules were adopted, at some point someone responsible for its operation would end up in a position to make a statement just like the one that Sullivan says a “sane and rational and decent human being” might have made. In this connection, we would also have to consider that a decision not to test or risk crossing over whatever lines between permitted and not permitted would also have presented dangers to interrogators or to that which interrogators were charged with helping to protect. If, rightly or wrongly, the interrogator believes that infliction of pain against a detainee would likely or possibly make a crucial difference, then not to do so would be to take responsibility for the consequences, while in the process of not merely of failing to do one’s job, but of failing to fulfill the terms of a pledge held sacred, at the costs of innocent lives and even at the cost of keeping interrogation policy and other war policies within sane and rational and decent bounds: Suppose that the refusal to torture or to engage in anything that might be viewed as torturous had been made, and suppose further that, whether or not for lack of important information or clues, a major terrorist event had subsequently occurred. What real-political chance would the sane and rational and decent opponents of torture however defined have had against a tide of enraged and engaged popular opinion?

Are we putting ourselves in a position to answer that question, and, if so, how confident should we be that it will be the answer Sullivan, Davidson, and Chait seem strongly to believe is the only admissible answer?

7 comments on “The Sane and Rational and Decent Torturer

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  1. I dunno.  My short term memory of the DC quote you provide in his defense seemed sincerity challenged when I watched it – I’ll go back and see what I think now.

    But in support of my original interpretation is the end of the interview where he says that  no prosecutions should occur because no crime had been committed.  Horrifying chaos and amateurism are at best minimally mitigating if the program was legally constructed with the care he describes.  For the legal care to be operative as mitigation, evidence of an operational care must be evident.  The care with which he reports the program was legally  constructed indicates he thought criminal acts were a possible outcome of the activity they were designing.

    Since the program was designed to go right up to the line of criminality, if the line is crossed there is,  at least, criminal negligence in its execution.  Perhaps one could assert that “chaos” justified a pardon of unlawful acts, but not that unlawful acts had not occurred.

    At the time of listening to the interview I took his assertion  that great legal care had been taken in the program’s construction to mean it was a feature of the program operationally, to design it so it in fact would cross the lines it established without consequence to the program’s designers and operatives.

    While unprovable at this point, I think it is implicit in much of the critics arguments.

    • As to the larger point – it goes to the difference between a peacetime and wartime concept of “criminality.” Killing people of a certain designated type, as many as possible, is somewhat frowned upon in peacetime, for instance, and the leeway for harming innocent or uninvolved bystanders is obviously much greater in wartime.

      However, the main point here for “sane and rational and decent” critics of the criticisms isn’t that no laws were broken or that those who broke the law or went “over the line” shouldn’t be held responsible, but whether the program or operatives or those presiding over it should be held responsible for such lawbreaking. If I design a health care law, and, in the process of its being implemented, unscrupulous vendors defraud new applicants, even to the point of causing serious injury to people, to what extent am I responsible? If I am by some construction at least partly responsible, if not necessarily legally responsible, do I get to introduce my good intentions and the good the law has done in mitigation? Is it fair to call me a criminal?

  2. If you design a health care law without anywhere near adequate regulation and oversight, then morally, if not legally, yes.  How a law is implemented (the regulatory and oversight framework) is to a significant degree, the actual law.

    In any case, the analogy is inapt.  This was not passing a law(s), but indeed establishing the regulatory and oversight framework for their unconventional and innovative implementation.  A health care law empowers a class of vendors, not specific ones.  Here specific vendors were selected to implement a controversial interpretation of existing law.  One can reasonably take their selection as a reflection of both the stated and unstated goals of the program.

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