cutting through the standard torture obfuscations

Continuing this discussion with some friends, the following scenario was posed, essentially as a response to this argument against torture by former Marine Corp commandant Charles Krulak and former commander in chief of U.S. Central Command Joseph Hoar. (This was part of a longer message, and I'm quoting it directly with light editing).

So you're on patrol in Iraq. Three of your service
members are kidnapped and two more killed in an ambush. You survive with
a few of your men, and are joined b[y] another platoon to search. You soon
find the body of one of the kidnapped, burned alive and almost
unrecognizable. You are able to capture an insurgent who was involved in
the attack and who is your only chance to find the other two before they
meet the same fate. He won't talk though. He spits in your face when you
interview him. Time is ticking. His family was never murdered by
the .001% of US soldiers who are criminals, so there is no sympathy for
him. What do you do? Grant him a lawyer? Call the President and say we
need to leave Iraq so these people won't do this?

You're so quick to grant these people the civil liberties we have here
in the US, but I'd like to have you consider this.

There are so many things wrong with the scenario itself, but more importantly this scenario is in no way an appropriate response to the issue at hand. As the Anonymous Liberal put it recently:

The political debate over the acceptability of torture and extreme interrogation techniques almost always devolves into a completely irrelevant discussion of hypothetical scenarios and the moral and ethical questions raised by them.

He goes on to explain the irrelevance of these scenarios:

Are there certain hypothetical scenarios under which the use of torture can be morally justified? If you construct the right scenario (nuclear bomb about to go off, suspect knows the target, etc.) just about anyone will answer yes to this question. But that's not at all surprising or informative. After all, it's possible to construct a hypothetical scenario where you'd be morally justified in shooting a little girl in the head (you're in a cave running out of air, there are four other younger children, they'll all die unless you off yourself and the oldest kid, etc.). The bottomline is that all of us are capable of simple utilitarian moral reasoning. If you are presented with a choice between something very bad and something even worse, the moral logic is pretty clear.

But this is all an exercise in irrelevance because that's not how rational people make policy decisions. Just because you can construct a hypothetical scenario were shooting a girl in the head is the "right" thing to do, that doesn't mean that we should do away with the legal prohibition against murder. When it comes to acts that are sufficiently bad--such as murder and torture--you need categorical rules.

The so-called "ticking bomb scenario" is simple-minded nonsense. It assumes two things that never happen in real life: 1) that you know for certain that a bomb is about to be detonated, and 2) that you're positive the person you have in custody has information that will allow you to stop that bomb from going off. I'm fairly certain that in the entire history of mankind, that scenario has never yet presented itself. Moreover, even if it did, the odds are slim, at best, that the suspect would divulge the necessary information under duress (as opposed to simply giving you disinformation).

As McCain and others have pointed out, if a sufficiently dire situation presents itself, those officials who would contemplate the use of torture need to do so with the knowledge that it is a practice so disgusting and heinous that we have seen fit as a society to ban it categorically. If they are to engage in torture, they need to know it is illegal and that they are likely to be punished if they are wrong. Then and only then can we have any hope that our soldiers and intelligence officials will be sufficiently judicious in their use of this horrible practice.

In a true ticking bomb scenario (which I'm convinced is like saying "when you meet a real unicorn"), people will do what they think they have to do, regardless of what the law says. And in that kind of extraordinary situation, no one would be prosecuted for resorting to extreme, even illegal tactics.

But you can't let highly unlikely hypothetical scenarios dictate policy. Regardless of whether there are conceivable situations where torture could be justified, it has to remain illegal.

So what about the hypothetical patrolman in Iraq? It should be pretty clear that it is just a reformulation of the time bomb, except substituting two American Soldiers for a large civilian population, and with an element of personal connection thrown in. The emotional element introduced by the relationship with the likely victim in no way changes the logic of the right policy, and the response to generic time bomb scenario is fully applicable here.

What do I think of the patrolman in the hypothetical scenario? I think that we as a nation have failed him profoundly. How someone responds to a situation is the heat of a moment is based on a number of factors. Some of those factors are his training, his experience, his commander, the culture of his unit and the military as a whole, the reward or punishment structure he knows to be in place, and characteristics of his individual mental state.

We all know that we're constantly lowering our military recruiting standards, extending deployments, deploying tired and injured troops, and sending them with inferior equipment. In contrast to previous wars where troops typically faced shorter times on the front lines and then rotated to a more stable position, everywhere in Iraq is a front line, because there's no unified enemy. These guys are under constant stress at all times in Iraq, and that takes a huge toll.

We just aren't sending highly-trained, well-prepared people to face these difficult situations and make good ethical decisions. As Krulak and Hoar said, "Complex situational ethics cannot be applied during the stress of combat." That is why you need clear, unambiguous rules.

As to the idea that only .001% of American troops are criminals, the troops themselves say criminals are 4,000 to 7,000 times more prevalent than that:

Of surveyed soldiers, 4 percent reported hitting or kicking noncombatants when it was not necessary; among Marines, 7 percent reported doing so.

And those are only the people who were willing to admit it, albeit anonymously. At least 1 in 25 of them have knowingly abused civilians, in violation of international law. And about half of the people working with them wouldn't report such an abuse. This is a culture where abuse is rampant, and that is known and condoned from the highest levels.

We have failed our troops profoundly. We've put them in an unnecessary war with no imaginable definition of achievable victory. We haven't trained them adequately; we haven't given them good equipment; and they're carrying the burden (and bullseye) of a century of vicious and destructive American foreign policy without even knowing it because all they're ever taught is how wonderful America is. Everyone around them has ample reason to hate them, and many have nothing to lose, making it all but inevitable that they'll resort to desperate violence. And we ship our kids in there to absorb the blows.

The idea that this wild scenario somehow addresses the issue of torture policy is insane. It is sociopathic. The only thing this scenario does is create sympathy for the soldier who might be tempted to shame himself by abusing a prisoner. Such sympathy might influence our decision about how to punish his criminal behavior, but it should in no way stop us from trying to prevent abuse with clear guidelines.