In 2009, I wrote the following:

April 2009

There are two levels to this debate [over enhanced interrogation] which tend to be collapsed.

On one level there are two couplets of opposed viewpoints that can be characterized as (a) the rule of law versus political expediency and (b) the rule of law versus a theory of sovereignty/political necessity.

On another level, a second debate concerns the question of what interrogation techniques can/should be defined as torture.

The typical collapse of these levels occurs in statements of this sort: If we can gain information that prevents the ‘ticking bomb’ scenario from leading to disaster, the techniques used to acquire this information should not be called torture (and thus should not be made subject to legal constraints and the prosecution of violations according to the rule of law). It would be more “parsimonious” (from an argumentative standpoint) to simply say that interrogation techniques may be forms of torture and that torture is nonetheless morally justified (I’ll call this “Jack Bauer’s Wager”). This would be the more consistent position for those who argue from the standpoint of “political necessity” since presumably any possible means for gaining an advantage in the ‘ticking bomb’ scenario would be justified (hence, even the most extreme techniques – ones that would be less contested as fitting the definition of torture – would be justified). In other words, the definition of torture is secondary to the priority of defusing the lethal ticking bomb. This can be termed the Malcolm X Principle (“by any means necessary”) of interrogation techniques. Dick Cheney’s argument, that because the “enhanced interrogation techniques” worked (that is, information gained by using these techniques helped to thwarted further terrorist attacks), adheres to the Malcolm X Principle. It is worth noting the other side of this Principle: if the techniques did not net such useful information, then they would be open to criticism, not because they were ethically wrong, but because they didn’t work (i.e., they were “not necessary”).

The “whatever works, but not whatever does not work” logic of the Malcolm X Principle that is applied in the defense of “enhanced interrogation techniques” seeks to suspend ethical considerations and definitions of torture. A softening of this Principle has emerged recently in an argument put forward by Bush’s last CIA Director Hayden (in his opposition to the release of the “secret memos” that detail the types of “enhanced interrogation techniques” that were used). Hayden claims that in the course of evaulating the legal-ethical appropriateness of the authorization of the ‘techniques,” one must place the decision to authorize these techniques “in context” rather than judging the decision according to any absolute legal-ethical criteria. Thus, because the US government found itself in a state of fear of further imminent terrorist attacks, the government’s authorization of “enhanced interrogation techniques” is ethically justified; presumably, in the absence of this situation of a well-justified fear of further imminent attacks, the authorization of these techniques could be judged appropriately as legally and ethically wrong. Those who argue for the continued application of these techniques then would presumably believe the US remains in this situation; one could then ask these proponents to discuss what would have to be considered to be a wrong-headed decision to suspend the use of these techniques by the CIA in 2006 (or 2005).

In contrast to this second level argument (which involves one in the weeds of determining the efficacy or inefficacy of practical actions and the problems of definitional criteria for torture; and entangles one in the subtle thought of weed-whackers like Hannity, Limbaugh, Olbermann, and Maddow), the first level opposed viewpoints embrace (rather than seek to attenuate the force of) ethical judgments (hence, they stand in contrast to “Jack Bauer’s Wager” and the Malcolm X Principle).

(a). Rule of Law versus Political Expediency
The “rule of law” holds that if a law is on the books that is both ‘legal’ and ‘legitimate’, then it should be enforced without regard to persons, positions, or situations, that is, without exception(s). From this standpoint, there is no option but to subject alleged violations of laws against torture to judicial and/or legislative scrutiny. In contrast to this standpoint, the “political expediency” position (I’ll call this the Obama Principle II) holds that no “good” will be served by this course of action; one must look forward, chart a new course that avoids the ethical problems of the past. It is, therefore, politically expedient to avoid the ex post facto application of the rule of law (with exceptions for egregious cases – if found). If a ‘truth commission’ or legal proceedings are enacted against Bush administration officials, such a “witch hunt” will cleave the nation that needs unity in the face of economic crises and is fighting wars on two fronts. In the current political environment, the “rule of law” position is construed as “liberal” or “far left”; how ironic it is then that political “conservatives”, who by definition would seem to be bound to upholding (i.e., conserving) a longstanding tradition like the Constitution and the principles which underlie it, are finding (or wishing for) common cause with a President who is willing to put expediency (i.e., the immediate political needs of the present moment) before legal tradition. Of course, the “expediency” position isn’t without a moral underpinning: executive power would be dangerously hamstrung if each President were forced to make decisions under the condition of the threat of future prosecution (hence, the admonition against “criminalizing politics”). Rather than using the juridical system as a proper legal-ethical evaluator, it is preferable to allow the will of the People to speak as the effective political-moral evaluator of the policies of Presidents (in this case, the 2004 re-election of Bush was an appropriate referendum on the policies put in place to combat terrorism, even if some of these policies were not made public until later).

(b). Rule of Law versus the Theory of Sovereignty/Political Necessity
This opposition changes the terms of the debate from one focusing on legal absolutes versus the contingent political needs of the present to one focusing on two competing “norms”. So, from the standpoint of the rule of law, the law sets the norm or normal conditions for political life. When this norm is not applied consistently (and fairly), a situation of “normlessness” arises, which leads to the breakdown of the order that is the basis of civil (and civilized) life, individual liberty, and personal happiness. No exceptions can be made no matter how ‘painful’ or ‘disadvantageous’ the rigorous application of the rule of law may be (I’ll call this the Obama Principle I). Thus the case is made that “America’s greatness” rests on the rule of law and America’s moral standing (as well as a the fabric of moral life) is undermined by policies that forget this historical truism. In opposition to this view stands the theory of sovereignty, developed in its most philosophically rigorous form by Carl Schmitt (who presumably isn’t cited because of his association with the Third Reich by the advocates of a “unitary executive theory” within US jurisprudence). Schmitt in a nutshell: “Sovereign is he who decides on the exception”; this means that sovereignty is vested in the person/agency who has the capacity to decide when to suspend the norm/normal workings of political order (to decide on the “exception” from the “norm”). For Schmitt, the State presupposes the concept of the political with which this theory of sovereignty is associated. The existence of a truly political situation arises when the State faces an existential threat, a threat of extinction: at such a moment, a political decision is called for and this decision is the Sovereign decision to suspend the norm, to declare a state of the exception (for example, declaring a state of emergency, which involves suspending certain political and legal rights, or which involves government in extra-ordinary actions). It is possible to argue that the self-preservation of the State is itself a normative position (the highest political good), but I don’t believe this is Schmitt’s explicit argument. Sovereignty depends on “decision,” not on a “norm.” To return to the torture debate: according to this theory of sovereignty/political necessity, the suspension of the ‘normal’ rules against “torture” is justified by the existential threat to the American State that is posed by terrorist organizations. Self-preservation requires an “exceptional” decision that only the Sovereign (i.e., the unitary executive) can make. In such a moment, the Sovereign is not bound by the courts or the legislative branch. Hence, “enhanced interrogation techniques” do not violate the legal norm because the norm has been suspended in the face of the possible extinction of the State (i.e., the extinction of the norm/normal state of political affairs).

*

On the relation of morality to law: I think there is a relationship between law and morality, which is not a mere conflation. But this claim does not imply that all laws are morally correct: some laws may be viewed as “immoral” by some and as moral by others, but they may still be “legal.” However, this leads into a disgression on the distinction between the “legality” of law (i.e., law’s ‘positivity’) and the “legitimacy” of law. Legitimacy pertains in some measure to “morality”: whether a law that has been enacted “legally” is a “just” law is a substantive question (which may involve ‘extra-legal’ criteria), not a procedural one (although proceduralism often carries the day when a law is challenged in the courts, as opposed to in the political process).

In my contrast between Jack Bauer’s Wager and the Malcolm X Principle, I think the former brings in an ethical element (the “legitimacy” of an action) which gets mixed in with utilitarian criteria (“I acknowledge that I’m torturing someone, but the greater good is being served: the ticking bomb will be defused”). But I discussed this as an approach which avoids “definitional problems” in deciding what is or isn’t torture. The emphasis shifts away from the morality of the act to the morality of the outcome. In contrast, the Malcolm X Principle (Cheney) strips the evaluation of a course of action down to utilitarian criteria alone (“does it work?” not “does it torture?”).

But this has to be understood against a backdrop in which torture is illegal. Hence, for the less than parsimonious argument, the need to define down torture, to spell out in meticulous detail the hierarchy of interventions on the body and mind, and a quantification of techniques and procedures: all of which removes the pleasure from what otherwise may be characterized as sadism. “Enhanced interrogation techniques” were employed to gain information (we are told), not in order to satisfy an emotional need (such as the desire for vengeance; a vicarious vengeance, since the victims of the attacks on 9/11 are not the actual interrogators). Jack Bauer faces none of these ethical conundrums involved in defining, circumscribing, and monitoring “torture”; nor does Dick Cheney, but for a different reason.

But this says nothing about the other “level” at which the debate can be understood (rule of law vs political expediency; the rule of law vs a theory of sovereignty). In this dimension of the debate, the issue at stake has less to do with defining what is or isn’t torture than in answering the following questions: must the rule of law (i.e., torture is illegal) be followed and applied absolutely? Or, is it legitimate for a government to selectively abide by, suspend, or ignore the rule of law (and under what conditions)? I think this is the more critical level of the debate both in evaluating the past and figuring out what to do about it in the present.

*

August 2009

Why is Cheney squawking again? The “investigation” under discussion now concerns techniques that went beyond what was authorized by the Justice Department. I suppose in Dick Cheney’s world, it’s always a good day for an auto da fé. Fortunately, he’s out of power now and can only torture G. W. Bush over the non-pardon of Scooter Libby.

Just a few months ago, Dick Cheney claimed that Obama was making America “unsafe.” I submit a few ways in which Cheney/Bush kept America “safe”:

9/11
6 years of 100 thousand plus troops in Iraq
Iran’s nuclear program unimpeded.
North Korea’s nuclear program unimpeded.
Taliban back in business in Afghanistan and Pakistan.

With this track record, it takes some well cooked huevos for Cheney to claim “enhanced interrogation techniques” kept America safe. Moreover, I’m hard pressed to believe anything that comes from the mouth of a Vice President who spent eight years claiming the Executive branch was accountable to nothing but itself. So to answer the question: we’ll never know whether or not these “techniques” were effective. But, again, the track record of Cheney/Bush suggests the answer is “no,” they were not effective and had no role other than to create the appearance of decisive action.

Regarding the “reasonableness” of the techniques, in an earlier thread on this topic I distinguished between two arguments. On the one hand, there’s the “ticking bomb” scenario, in which “Jack Bauer’s Wager” holds sway: the most extreme techniques are reasonable, and morally justified, because the avoidance of an imminent catastrophe is a superior moral end. In other words, one can admit the techniques are a form of “torture” and also claim they are morally defensible. On the other hand, there is the Malcolm X Principle (“by any means necessary”) that seems to be what Cheney invokes whenever he pipes up about this issue. The evaluative criterion in this case is whether the techniques work, a purely utilitarian calculation that elides the question of the morality of the techniques themselves. If the techniques did not net useful information, then they would be open to criticism, not because they were ethically wrong, but because they didn’t work (i.e., they were “not necessary”).

Unfortunately, I can’t imagine a scenario in which the CIA would admit publicly that its enhanced interrogation techniques “failed.” Ultimately, it’s a lose-win situation for Cheney. His credibility is challenged with each unsubstantiated assertion of success but it can never be entirely undermined because the admission of failure is not an option.

*

Now it turns out that we do know whether the techniques were effective: the answer is no.

Much of the general information in this report was already known. We knew that the USA under GW Bush tortured detainees. We also knew that torture is cruel. Nothing new here. Today’s overdone outrage only satisfies the narcissism of the critics.

However, what is new, and shocking, is the utter incompetence of Dick Cheney’s CIA. Although wiser heads said early on that “enhanced interrogation” yields spurious results, to see the actual meagre yield of actionable information is confirmation of the total corruption of Dick Cheney’s vision of patriotism and the willful inhumanity of the Republican Party.