In the combox to his recent post on waterboarding, Zippy writes:
That what we actually did to prisoners was immoral torture, yes, is just so obvious.
I assume that “what we actually did to prisoners” refers specifically to waterboarding the likes of Khalid Sheikh Mohammed, and that this in Zippy’s view would have been “immoral torture” even if it happened only once. If that is what Zippy meant, then I don’t think this claim is “obvious” at all. It might well be true. But it isn’t obviously true.
Of course, there are things that should be obvious that aren’t to some people. To most people it’s obvious that material objects exist. But get your head full of Idealist philosophy and it will stop seeming obvious; indeed, it might in that case start seeming obvious to you that material objects don’t exist. So, perhaps Zippy would say that waterboarding KSM can fail to seem obviously like “immoral torture” only to someone who’s got his head full of some bad moral theory.
Well, my own thinking about morality is guided by (1) orthodox Roman Catholic moral theology, i.e. the kind which is loyal to the Magisterium of the Church, and (2) classical natural law theory. In other words, it is guided by the same things that guide Zippy. (At least, I know he is guided by (1). I assume he is guided by (2) as well, rather than, say, the “new natural law theory.” Otherwise I doubt we’d agree 90% of the time, as we seem to!) Yet in this case, what is “obvious” to him is not obvious to me.
Is it, then, some desperate desire on my part to justify American foreign policy that keeps me from seeing the obvious? Am I too blinded by “neocon” propaganda to believe what my own eyes and ears should be telling me? Not likely, given that I agree with Zippy that the usual “neocon” arguments marshaled in defense of waterboarding and the like are no good, at least not as they stand. For example, it’s no good simply to say that “Waterboarding KSM allowed us to prevent such-and-such a terrorist attack.” Even if this is true, it would be irrelevant if waterboarding is intrinsically immoral. We may not do evil that good may come. So, anyone who wants to defend waterboarding has to establish that it is a morally acceptable means of acquiring information in the first place, before he can appeal to the value of some piece of information allegedly acquired by means of its use. Nor is it any good to argue that if firebombing Dresden and dropping atomic bombs on Hiroshima and Nagasaki were morally justifiable, so too must waterboarding be morally justifiable. For the former acts were not morally justifiable, but gravely immoral, even though they were carried out in the course of a just war.
Why, then, do Zippy and I not agree in the case at hand about what is “obvious”? I’m not sure. For my part, all I can say is that it is precisely my own commitment to Catholic moral theology and classical natural law theory that leads me to think the claim in question is not “obviously” true, whether or not it is true full stop. And no, I am not trying to play the “More loyal than thou to the Magisterium” card against Zippy here. Not for a minute. Partly because the suggestion that Zippy is anything less than completely loyal to the Magisterium is absurd – indeed, obviously absurd, if I may say so. And partly because there are already enough blowhards in the Catholic blogosphere playing that card against their fellow orthodox Catholics. I don’t want to join their ranks. The point is rather that, as far as I can tell, what Catholic tradition and classical natural law theory have actually said about torture, corporal punishment, and related matters make it anything but obvious that waterboarding KSM was immoral. Apparently Zippy reads the evidence very differently. If so, I’m sure he’ll let me know why.
Again, my claim is not that Catholic tradition and/or classical natural law theory don’t entail that the act in question – waterboarding a known terrorist like KSM (even just once) so as to extract potentially life-saving information – is in fact immoral, all things considered. It might well be immoral, but whether or not it is is a question I’m not going to try to settle here. My claim is that this particular issue is a complex one, so that it takes some work to discern what the correct view is. The right answer doesn’t just “scream off the page” to the honest inquirer doing a cursory examination. So, the fact that some Catholics who are otherwise clearly orthodox happen to disagree on this particular issue should not be as surprising as some people seem to think it is. Neither side can justifiably claim that its position is so “obvious” that the other side’s disagreement with it is a mark of irrationality or moral corruption. Hence the odium theologicum which has so often attended discussions of this matter is not justifiable. (I do not say that polemics are never justifiable; my longtime readers, indeed even my shorttime readers, know that I think polemics are called for in some contexts. Just not in this context.)
Here’s a consideration from classical natural law theory that shows that waterboarding the likes of KSM to get the information in question was not obviously wrong. We know from classical natural law theory that capital punishment is at least in principle justifiable as a matter of retributive justice. But in that case (as Aquinas concludes) the lesser punishment of inflicting severe pain must also be justifiable at least in principle. So, given that he is known to be guilty of serious wrongdoing (mass murder, no less) the severity of the punishment meted out to KSM cannot by itself be sufficient grounds for objecting to waterboarding him. What about the motive, namely extracting information? Is it a legitimate one? Well, we know that there are cases where someone can merit a stiff penalty for failing to provide certain information. If you’re a property owner who fails to disclose to a prospective buyer the presence of some hazardous substance, you may have to pay a hefty fine. Now KSM, who was involved in planning further terrorist attacks, surely owed his potential victims information about those attacks. Thus he merited a severe penalty for failure to provide this information. And given that the potential harm that might ensue from failing to provide that information was far greater than the harm that might ensue from a property owner’s failing to disclose the presence of lead paint (or whatever), the penalty merited by KSM for non-disclosure would have to be far more severe than that merited by a dishonest property owner. Indeed, since the harm would be the deaths of possibly thousands of people, it is hardly absurd to suppose that he might merit some sort of corporal punishment for failing to disclose the information in question. Add to this the consideration that he already merits such punishment anyway for his past crimes, and it becomes fairly plausible that waterboarding him for the purpose of extracting the information in question might be justifiable at least in principle.
Does this argument show that waterboarding him was in fact morally justifiable, at least in principle? I don’t know. But I do think it suffices to show that it was not obviously wrong to waterboard him, at least not from the point of view of classical natural law theory. The question is at least debatable.
[Side note: I realize that some people will claim that the Catholic Church has been moving away from the position that capital punishment is in principle justifiable as a matter of retributive justice – which claim, if true, might seem to pose a problem for my argument here, since I am a Catholic. But the claim is false. First of all, the Church has consistently taught that capital punishment is in principle justifiable, even if ill-advised in practice. No one denies this; in particular, no one denies that even John Paul II, widely thought to be the pope most hostile to capital punishment, taught this. But some do seem to think that John Paul II thought it justifiable even in principle only where necessary to “protect society,” and that retributive justice is irrelevant. This claim is also false. First of all, John Paul II explicitly taught that retributive justice is one of the aims of punishment in general. It follows from this that it is one of the aims of capital punishment in particular (even if not in his teaching a sufficient aim). Secondly, “protecting society” could not possibly be the sole consideration the pope thought relevant to capital punishment, unless you think John Paul II was a consequentialist, which he manifestly was not. He would never have claimed, for example, that killing people in general, even innocent ones, would be justifiable if this were necessary to “protect society.” The only reason it could possibly be legitimate even in theory to execute some dangerous criminal, then, is precisely because he is already guilty of some offense grave enough to merit such a punishment. Retributive justice is, and logically must be, as relevant to “current” Catholic teaching on capital punishment as it ever was. That John Paul II did not personally emphasize the retributive justice aspect on this or that occasion does not prove otherwise.
It is important to stress this, because some among those Catholics who hold that waterboarding the likes of KSM is intrinsically immoral do so on the basis of novel moral theories according to which capital punishment is also inherently immoral. But in order to believe that a Catholic can regard capital punishment as intrinsically immoral, you have to believe also that it is consistent with Catholic orthodoxy to hold that the Church has for 2,000 years been teaching grave moral error, and indeed that Scripture itself has done so. Instead, some theory Germain Grisez came up with 40 years ago has finally gotten things right, and stands poised to set the Church and Bible straight. Good luck with that.]
Now of course, everything said so far would become moot, at least from a Catholic point of view, if the Church has in fact taught that actions like the one in question are intrinsically immoral. So, has the Church actually taught this? Perhaps Zippy thinks it is obvious that the Church has done so. But here too, I don’t think this is obvious at all.
The reasons for thinking that it is not obvious are well stated in a two-part study of “Torture and Corporal Punishment as a Problem in Catholic Theology” by Fr. Brian Harrison (available here and here). Fr. Harrison’s articles are scholarly, detailed, non-polemical, and decidedly unfavorable to the use of severe corporal punishment as morally justifiable, in practice, in most cases. His survey of the evidence from Scripture, tradition, and the teachings of popes, church councils, saints, and approved theologians leads him to draw three general conclusions: First, the Church has clearly condemned as intrinsically unjust the infliction of severe corporal or psychological pain for the purposes of extracting confessions or frightening opponents, or carried out by persons without legal authority to do so. Second, the Church has not condemned as intrinsically unjust the infliction of severe bodily pain, by those with legal authority to do so, for the purpose of punishing those guilty of grave crimes, even though the Church has also taught that in practice such methods should not be used. Third, the moral legitimacy in principle of the infliction of severe pain for the specific purpose of extracting life-saving information from a known terrorist has neither been affirmed nor denied by the Church, but remains an open theological question.
While I have not myself come to a settled view about these issues, it seems to me that Fr. Harrison is right about this much, though I advise the interested reader to study the articles for himself and see what he thinks. I have not seen any serious rebuttal to Fr. Harrison, though I have seen some Catholics critical of waterboarding and the like unjustly dismiss the articles with what amounts to little more than a smart-ass remark or two. This will not do. Perhaps the most important point Fr. Harrison makes is that the justifiability at least in principle of severe corporal punishment is clearly taught in Scripture, which any Catholic must regard as infallible. To take only the most colorful example, the book of Sirach or Ecclesiasticus – regarded by Catholics as divinely inspired and thus part of the scriptural canon – clearly teaches the moral legitimacy in principle of punishment by “yoke and harness,” “the rack and torture,” and “clap[ping] in irons” (33:27-30), and even of “lashing a wicked slave till you draw blood” (42:5).
This is, in my view, the main theological reason why it is simply no good to insist that waterboarding is “obviously” torture and therefore “obviously” immoral. Yoke and harness, the rack, clapping someone in irons, and lashing someone until blood is drawn would also seem obviously to count as “torture” if waterboarding does. More to the point, torture itself – explicitly cited in Sirach as sometimes justifiable – would surely count as “torture”! And yet Scripture affirms the legitimacy in principle of these things, in which case they cannot “obviously” be wrong, at least not for any Catholic. By parity of reasoning, neither can waterboarding be “obviously” wrong. It might still be wrong all things considered – as yoke and harness, the rack, clapping someone in irons, and lashing all certainly would be wrong as means of punishing criminals under modern conditions – but it is not plausible to say that it is “just obvious” that it is wrong, so that anyone who doesn’t see that it is wrong must be irrational or morally corrupt.
This is also the main reason why it is incumbent on any Catholic critic of waterboarding to provide a careful definition of “torture,” and a careful explanation of the claim that “The Church condemns torture,” before he censures his fellow Catholics for daring even to inquire about whether the practice is morally justifiable. Whatever we mean by “torture,” and whatever we mean by claiming that “The Church condemns torture,” has to be consistent with Scripture and tradition, and in particular with the moral legitimacy at least in principle of severe corporal punishment. The appeal to purportedly “obvious” paradigm cases cannot possibly suffice, because such a strategy would equally justify condemning as intrinsically immoral practices the Church does not and cannot condemn as intrinsically immoral.
So let’s consider some possible definitions. Does “torture” mean “the intentional infliction of severe bodily or psychological harm”? If so, then for the reasons I have given, it is not open to the Catholic to say that “All torture is wrong” and condemn waterboarding on that basis. Does “torture” instead mean “the unjust intentional infliction of severe bodily or psychological harm”? In that case, the claim that “All torture is wrong” would be true by definition. But then it would simply beg the question to characterize waterboarding as torture in this sense, since what is at issue is precisely whether waterboarding is an unjust infliction of severe bodily and psychological harm.
Is a better definition possible? No doubt. (See here for some helpful thoughts on the topic from Jimmy Akin. It's the first of a four-part series of posts -- follow the links at the top of the page linked to for the rest.) But providing it will require significant intellectual effort and careful attention to the sorts of philosophical and theological considerations I’ve been referring to. It is hardly “obvious” what such a definition should cover, and it is unjust to accuse those who do not see it as obvious of being guilty of some moral or intellectual lapse. For the same reason, it is also unjust to accuse them of dissenting from Church teaching, to compare them to faithless “pro-choice” Catholics, or to dismiss their concerns as motivated by a desire to justify recent U.S. policy. Perhaps some Catholics are driven by such political motives. But some of us are motivated instead by a desire to do justice to Scripture and tradition, and to defend the Church against the charge – made by liberals and some radical traditionalists alike – that she has (in this case and others) arbitrarily changed her teaching so as to conform herself to the sensibilities of the modern world, a claim which if true would cast doubt upon her infallibility in matters of faith and morals. For some of us, it isn’t Bush’s War on Terror that matters most, but Benedict XVI’s Hermeneutic of Continuity.
Finally, in examining the question of whether Catholic teaching rules out waterboarding a known terrorist for the purposes of extracting life-saving information, we need to consider whether this case is more like the case of inflicting pain for the purposes of extracting a confession – which the Church has condemned as intrinsically unjust – or more like the case of inflicting severe pain for the purposes of punishing someone guilty of a heinous offense – which the Church has not and cannot regard as intrinsically unjust. I suspect that Catholic critics of waterboarding are assuming that it is more like the former case. But this is not at all obvious. As the natural law-based argument sketched out above indicates, waterboarding of the sort in question might plausibly be seen instead as the punishment of a grave injustice, namely the injustice of refusing to provide information that is owed to potential victims of terrorism as a matter of justice. In that case, the practice might plausibly be seen as analogous to the sort of severe corporal punishment that the Church does regard as legitimate at least in principle.
Is it legitimate in principle, then? And even if it is, is it allowable in practice? As I have said, I do not have a settled view on these questions. But they are serious questions, and those who raise them are not thereby guilty of being “dissenters” from Church teaching. The case is simply not at all analogous to that of abortion. Until the Church officially speaks on the matter, this is an area of legitimate theological disagreement. Or so it seems to me.
Anyway, appeals to what is “obvious” cut no ice in a debate between enemies. And sometimes not even in a debate between friends.