Reply to Reppert on "torture"

“Steve: I didn't equate morality with legality. I said that if an action is a contravention of international law, then we need strong justification for doing it. It is conceivable, for example, that the right thing to do for me today is to hold up the Bank of America inside Fry's. But I'd need some very strong justification for doing so. You can't say that legality is irrelevant to morality.”

http://dangerousidea.blogspot.com/2007/11/reply-to-steve-on-torture.html

You’re conflating two distinct issues:

1.Does the fact that X is illegal create the presumption that X is immoral?

2.Is there a moral presumption that we have no right to break a law absent some overriding consideration?

I would answer (1) in the negative and (2) in the affirmative. The mere fact that something is illegal creates absolutely no presumption that it’s immoral.

On the other hand, it would be wrong, as a matter of course, for everyone to take the law into their own hands (vigilantism), although there are extenuating circumstances in which civil disobedience is permissible or even obligatory.

“And yes, the Romans tortured people. Paul wasn't saying that Christians should obey an order to torture.”

Then why did you cite Rom 13 as if that were an argument against the use of “torture”?

“What I am saying is that illegality is evidence of illegality that imposes a burden of proof on the lawbreaker to show that lawbreaking is moral.”

That may be correct. However, that imposes no burden of proof to the effect that the illegal practice is immoral, only that it would be immoral to commit an illegal practice. These are two different things. There have been many immoral laws in history.

Even if “torture” is illegal, that creates no presumption that torture is immoral. And if you’re going to cast this in purely legal terms, then laws can be repealed.

“Do you, or do you not, believe that illegality generates a presumption of immorality?”

For reasons just stated, illegality generates no presumption of immorality. At best, it only creates the presumption that it would be wrong to break the law—and not that the law, itself, is morally right.

“Or perhaps you don't think international law is real law, that the only ‘Caesar’ that counts is good ole American law.”

i) If the US is a signatory to an international law, then we are under that law as long as we remain a signatory to the law—although we also have the right to withdraw from treaties. If we signed it voluntarily, we can voluntarily withdraw from it.

ii) And there’s such a thing, Victor, as representative gov’t—as well as popular sovereignty. One reason that I, as an American citizen, am bound by the laws of my nation is that these laws were passed by my duly elected representatives.

It doesn’t follow that I’m also bound by the laws of Zimbabwe. Their legislative (or judicial) branch doesn’t represent the will of the American electorate. I didn’t vote for their lawmakers. They don’t speak for me.

“I don't agree with everything the allies did in WWII, especially the bombing of civilian populations.”

i) Which wasn’t the point of the illustration. You have argued that America’s reputation has been sullied by waterboarding. My point is that if you think waterboarding is immoral, then the Allies did far worse in WWII (I’m not saying for a fact that they did far worse, only comparing waterboarding with Allied tactics in WWII). How does waterboarding damage our prior reputation if we, as well as our Allies during WWII (not to mention the Cold War), have always used hard knuckle tactics in dealing with the enemy, whether Nazi fascism or Cold War communism? Seems to me the underlying policy has been pretty consistent over the decades.

ii) In addition, assuming that we didn’t use “torture” in WWII to win the war, we used other tactics like flamethrowers, carpet-bombing, and atom bombs. So you’re disregarding the alternatives which less to a successful prosecution of that particular war effort.

“But we didn't waterboard Nazis when we captured them. So even though we didn't live up to "just war" standards in WWII, we still didn't torture the Nazis or the Japanese.”

I cited evidence that the Allies did employ torture in WWII and beyond:

http://www.guardian.co.uk/uk_news/story/0,,1745489,00.html

You simply blew past that article. When you give a reason for your position, I cite counterevidence, and you disregard the counterevidence, what does that say about the integrity of your position?

Now, if you think the article is either erroneous or irrelevant, you can explain why. As it stands, it looks like you’re not prepared to revise your position in light of new evidence—even though I’m answering you on your own grounds.

“And we convicted someone of war crimes for waterboarding one of us.”

You’re also disregarding different reasons for “torture.” Is it used to deter political opponents, extract a confession, extract operational intelligence, or for purely sadistic entertainment? These are not morally equivalent positions.

It also depends on the purpose to which the counterintelligence is put. Is a country fighting a just cause? That is not a morally irrelevant question, either.

“MI5 does it, so it must be OK. Two wrongs don't make a right, you need at least three. Is this your argument? Some of us would call this lame.”

You know, Victor, a philosopher is supposed to exhibit the philosophical virtue of critical sympathy. That means that you should have the capacity to emotionally disengage from your own commitments and seriously examine both sides of the argument. But because you’re so committed to your position on this point, you make no effort to accurately represent the opposing position.

Once again, I’m answering you on your own grounds. You say that America’s reputation is suffering. This assumes a standard of comparison. In relation to whom?

You say the “world community”? If, however, America’s critics are guilty of the same thing, then they are in no position to be judgmental. To attack our reputation for doing what they do would be self-incriminating. That’s the point, Victor.

If the Brits use “torture,” if the French use “torture,” if the Chinese use “torture,” if the Arabs use “torture,” and so on and so forth, then why would the use of “torture” be damaging to our reputation? In order to attack someone else’s reputation, you can’t be guilty of the same thing. How many members of the UN honor the Geneva Conventions in actual practice?

Is that a justification for what we are doing? No. It was not intended to be a justification. I’m simply answering you on your own terms.

You are putting America on one side of the ledger, and the “world community” on the other side of the ledge, such that the “world community” supplies the standard of comparison. If, however, large segments of the “world community” do the same thing, or worse, then your invidious comparison falls apart.

For some reason, you find it difficult to be true to your own arguments. When I respond to you on your own level, you change the subject. That doesn’t speak well for the intellectual merits of your position.

“My focus was on waterboarding, because it seems to me to be a clear case of torture. You want to deny that it is torture?”

I’m not interested in how we classify waterboarding. If you want to call it torture, then torture is an overrated word.

“I didn't say all coercive interrogation tactics are torture, I said we had good reason to suppose that we do use tactics like waterboarding that fit within the legal definition of torture.”

I really don’t care. The important question is not whether waterboarding is illegal, but whether it should be illegal. Laws can be changed. And there are situations in which laws ought to be changed. The proper question is whether this is one of those situations—assuming, for the sake of argument, that waterboarding is illegal.

“Does everyone in the Arab world approve of torture, including moderate Arabs?”

To my knowledge, the people in power approve of torture, including the so-called “moderate” regimes. That’s why critics of the Bush administration scream about extraordinary rendition.

“If the Islamic people we are dealing with are total barbarians why in the world are we trying to help set up a democratic government in one of their countries, and spilling all sorts of blood on both sides in doing so?”

That’s a diversionary tactic, Victor. Whether waterboarding is a licit interrogatory technique, and whether it’s realistic to democratize the Mideast, are two separable questions.

“Does international law count for something? Does the fact that we signed off on the Geneva accords and promised to follow certain rules count for something?”

Several issues:

i) You’re assuming a particular interpretation of the Geneva accords. I cited evidence to the contrary—which, once again, you chose to ignore:

http://levin.nationalreview.com/post/?q=ZDY0NThhMDc5OGYzOWM3MzFhYTQxNTYzNzEyZDJiYjQ=

http://www.christianitytoday.com/books/web/2007/sept24a.html

You have a bad habit of repeating objections I already addressed. This evinces a lack of philosophical earnestness on your part.

If you want to take issue with what I cited, that would be different. But when you give a reason for what you believe, your reason is challenged, and you ignore the counterargument, this brings your sincerity into question.

“Does international law count for something? Does the fact that we signed off on the Geneva accords and promised to follow certain rules count for something?”

Several issues:

i) Making allowance for certain caveats (see below) we are obliged to maintain our treaty commitments as long as we are signatories. We can also withdraw from a treaty at a later date.

ii) Treaties are not unconditional commitments. There are multiple parties to a treaty. If some signatories fail to uphold their end of the bargain, then they are in breach of contract—which can nullify our corresponding obligations. That’s the difference between a legal imperative and a moral imperative.

If don’t have to keep my promise to you if you break your promise to me, and I only made a promise to you on condition that you would keep your promise to me. If I promise to pay you $5000 for your used car, and you renege on the deal, then I don’t owe you $5000.

iv) One party doesn’t have the right to unilaterally redefine the terms of the treaty after the fact, without the consent of the other contacting parties. The fact that we voluntarily entered into this treaty decades ago, with an understanding of what it implied at the time we signed on, doesn’t mean that if the terms of the treaty are subsequently redefined, we are bound by these reinterpretations—for that is not what we originally agreed to.

v) International law is increasingly used to subvert national sovereignty in order to promote a radical social agenda.