Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, April 22, 2009

More from Chris Eberle, responding to Rob, re: punishment, etc.

By Rick Garnett

This from Chris Eberle:

Rob expresses the concern that the argument I articulated in favor of waterboarding KSM blurs the line -- unacceptably -- between interrogation and punishment.  But I'm not sure about that.  I don't think that waterboarding KSM is permissible because he 'deserves' to be punished.  Retribution plays no role in the argument I articulated.  Rather, I think that KSM's culpability helps us to determine how to distribute inevitable harms.  That is, given the plan KSM culpably set in motion, some innocents are going to die.  But we have available to us an unexpected means of redirecting the harm -- not to its intended, innocent targets, but to KSM.  Given either that innocents in LA will die or that KSM will be waterboarded, KSM's having culpably initiated a plan that will otherwise result in the death of those innocents permits us to take the second option.  His culpability determines who will be harmed, given that *someone* will be harmed. 

Just to make clear that this argument presupposes no claim about KSM deserving to be punished, note that the argument I articulated permits KSM's waterboarding only if that would actually help to thwart his plan to kill innocents, and would be impermissible if waterboarding him had no such consequence. (I assume that, were he to 'deserve' to be waterboarded, we would be obliged, or at least permitted, to waterboard him even if doing so prevented no plan of his.  He would be getting what he deserved.)

Is culpability relevant to torture's permissibility?

By Rob Vischer

Thanks to Chris Eberle for his thoughtful comment on my question about evaluating the moral permissibility of torture based on the fruits of torture.  I need to think more about this, but let me offer a couple off-the-cuff reactions: First, if KSM's culpability for the harm that the torture is designed to prevent is relevant to our moral evaluation of the torture, this seems to blur the line between punishment and interrogation.  Given the due process protections that we've built around the state's punishment function, but that are not (for good prudential reasons) always present in the interrogation function, blurring those lines gives me pause.  Second, if KSM's culpability, as opposed to mere knowledge, is discovered or confirmed through torture, I am not sure why that culpability is relevant to the moral evaluation.  Just as we have to judge the morality of the Iraq invasion based on the evidence presented to President Bush at the time -- not the evidence (or lack thereof) presented after the fact -- don't we need to evaluate the moral permissiblity of waterboarding KSM based on the government's knowledge at the time it decided to waterboard him?

That said, there is something intuitively appealing about Chris's assertion.  Suppose that in one holding cell is a waiter who served dinner to KSM and his colleagues while they openly discussed where they had hidden the nuclear device.  The waiter refuses to recount what he heard, citing his personal belief in a waiter-customer confidentiality rule.  In the other holding cell is KSM himself, and he's chanting "I hid a nuclear device and I won't tell you where!"  Are more coercive interrogation techniques morally permissible for KSM than for the waiter?  Perhaps they would be if we are willing to use interrogation as punishment, but in that case the punishment should not be up to the ad hoc conclusions of the interrogators, should it?  At a minimum, torture would not be morally justified for KSM or the waiter.  Waterboarding -- being designed to inflict severe physical and mental suffering based on the intentional creation of the perception of imminent death by drowning -- is torture.

Eberle on torture, etc., in response to Rob

By Rick Garnett

MOJ-friend and accomplished philosopher Chris Eberle sends in this:

Rob Vischer asked the following question: 

In response to the release of documents describing our government's interrogation practices, former Vice-President Cheney has asked the government to release documents that "lay out what we learned through the interrogation process and what the consequences were for the country."  Why exactly should the fruits of torture be relevant to our evaluation of torture's acceptability?  Would Cheney want to know the medical fruits of embryonic stem cell research or the (purported) sociological fruits of abortion on demand before condeming those practices? 

It seems to me that there is a sensible answer to this question.  The best argument in favor of the waterboarding of Khalid Sheikh Muhammad is not a consequentialist argument, as perhaps Vice President Cheney has suggested, but one that appeals to plausible claims about personal liability.  The argument is, roughly, as follows.  Suppose, as I think is in fact the case, that the US had compelling reason to believe that KSM played a crucial role in planning that attacks on 9/11 and that KSM was involved in the planning of future but then unknown attacks.  Given that the US government had reason to believe that KSM culpably initiated some realistic threat to innocents, and given that the US could prevent that serious threat by waterboarding KSM, the US government permissibly waterboarded KSM.  That is, KSM’s culpable role in initiating a series of events that would eventually result in the death of innocent persons is what made it the case that the

US

government permissibly coerced KSM into revealing information that prevented the planned attacks.  (This despite the fact that KSM no longer played any role at all in carrying out the planned attack – he was, at the time of his being waterboarded, not capable of carrying out the attack himself, but only of revealing information about those whom he had sent to carry out the attacks.) 

 

(You can think of many wild analogues here – Jack poisons Perkin who will much later suffer then die unless we find the antidote which Jack has hidden and will not reveal unless… -- but we don’t need any fanciful thought experiments, since we have KSM himself to reflect on!)

 

You might, or you might not, regard this argument as sound.  Fine.  But if you do, as Cheney and others might, then any evidence that vindicates the US government’s claim that KSM knew about, or played some role in initiating, the planned Los Angeles attacks is relevant to the moral judgment we should render regarding the permissibility of the US government’s waterboarding KSM.  In other words, facts about KSM’s knowledge of some impending threat – facts initially gained by way of waterboarding KSM -- shed some light on the moral permissibility of the government’s treatment of KSM.

Anscombe on Hudson on torture

By Rob Vischer

A reader responds to my post of Deal Hudson's (reported) application of just war theory to torture:
Hudson's comment (assuming it's accurately rendered) moves (without justification) straight to application of just war criteria and altogether ignores that the prohibition on torture is an exceptionless moral norm according to Gaudium et Spes (27), Veritatis Splendor (80), and the Catechism (2297-98). I should hope that Catholics would remember Elizabeth Anscombe's warning against creeping consequentialism about these matters in "Mr. Truman's Degree" (1956):
 
I have been accused of being “high-minded.”  I must be saying “You may not do evil that good may come,” which is a disagreeably high-minded doctrine.  The action was necessary, or at any rate it was thought by competent, expert military opinion to be necessary; it probably saved more lives than it sacrificed; it had a good result, it ended the war.  Come now: if you had to choose between boiling one baby and letting some frightful disaster befall a thousand people—or a million people, if a thousand is not enough—what would you do?  Are you going to strike an attitude and say “You may not do evil that good may come”?  (People who never hear such arguments will hardly believe they take place, and will pass this rapidly by.)
.... 
We can now reformulate the principle of “doing evil that good may come” Every fool can be as much of a knave as suits him.
.... 
I get some small light on the subject when I consider the productions of Oxford moral philosophy since the first world war, which I have lately had occasion to read.  Its character can easily be briefly demonstrated.  Up to the second world war the prevailing moral philosophy in Oxford taught that an action can be “morally good” no matter how objectionable the thing done may be.  An instance would be Himmler’s efforts at exterminating the Jews: he did it from the “motive of duty” which has “supreme value.”  In the same philosophy—which has much pretence of moral seriousness, claiming that “rightness” is an objective character in acts, that can be discerned by a moral sense—it is also held that it might be right to kill the innocent for the good of the people, since the ”prima facie duty” of securing some advantage might outweigh the “prima facie duty” of not killing the innocent.  This sort of philosophy is less prevalent now, and in its place I find another, whose cardinal principle is that “good” is not a “descriptive” term, but one expressive of a favourable attitude on the part of the speaker.  Hand in hand with this, though I do not know if there is any logical connection, goes a doctrine that it is impossible to have any quite general moral laws; such laws as “It s wrong to lie” or “Never commit sodomy” are rules of thumb which an experienced person knows when to break.  Further, both his selection of these as the rules on which to proceed, and his tactful adjustments of them in particular cases, are based on their fitting together with the “way of life” which is his preference.  Both these philosophies, then, contain a repudiation of the idea that any class of actions, such as murder, may be absolutely excluded.  I do not know how influential they may have been or be; they are perhaps rather symptomatic.  Whether influential or symptomatic, they throw some light on the situation.
It is possible still to withdraw from this shameful business in some slight degree; it is possible not to go to Encaenia; if it should be embarrassing to someone who would normally go to plead other business, he could take to his bed.  I, indeed should fear to go, in case God’s patience suddenly ends.

Fact and Fiction about the Framers and Faith

By Rick Garnett

Check out this essay, "Blushing Our Way Past Historical Fact and Fiction," by Seth Tillman.  Abstract:

Legal academics and the public are fascinated by both constitutional text and the processes by which it is interpreted. The precise role for legal academics in the interpretation of such charters is controverted. Doctrine and case law as established by the courts remain the core of academic legal discourse. Case law is, after all, the object about which doctrine is based, built, and extended. But the interpretation of constitutional text through case law comes with costs -- it seems to lack democratic legitimacy, and where unconnected to text and history, it has a tendency to fence out (even the well-educated) the public. On the other hand, when legal academics shift to text and history, their work gains populist credentials, but, at that point, the legal academic risks his privileged position. For the legal academic has no monopoly, or even highly developed expertise, with regard to textual exegesis or the best use of historical materials. In light of those attendant risks, I want to praise Professor Geoffrey R. Stone for taking on the role of exegete and historian. But that said, I find some of his specific textual and historical claims troubling. I respond to his textual and historical claims in detail below. This paper, however, has no grand normative claim of its own; it is merely an effort on my part to correct the record, and thereby to further the object pursued first by Professor Stone: “to know the truth about the Framers, about what they believed, and about what they aspired to when they created this nation.”

What follows is substantive discussion of the Attestation Clause, the Oaths and Affirmations Clause, the Sundays Excepted Clause, the Religious Test Clause, and a crtique of Stone's use of historical materials, particularly his claim in regard to a book burning at Harvard circa 1789.

A wretched decision by the Ninth Circuit

By Rick Garnett

A panel of the United States Court of Appeals for the Ninth Circuit has mangled the landmark ruling in Zelman and concluded that Arizona's (wise and wonderful) tax-credit program, in practice, could violate the Establishment Clause.  Read it and weep.

Kmiec's latest

By Rick Garnett

A religious-left organization called "Faith in Public Life" has released a series of quick-bites from "evangelical and Catholic leaders" who are said to "welcome" the Administration's new stem-cell-research guidelines.  One of the "Catholic leaders" quoted is Doug Kmiec, who continues to surprise -- to surprise me, anyway -- with his enthusiastic willingness to endorse policies and propositions from which, not too long ago, he would have recoiled.  According to Kmiec:

"The Obama administration has announced informed consent rules that are far more strict - and retroactive - than what had been proposed by President Bush. In brief, if researchers do not follow the new informed consent rules, no funding. This may trigger some consternation among medical researchers, but it is a very positive sign that President Obama has been listening - as he promised - to the heightened claims of conscience posed by Catholics in the modern medical environment. The President's strong motivation to assist in the treatment of devastating illnesses often associated with life's end is only ennobled by his willingness to be more ethically sensitive to the earliest moments of life."

Two thoughts:  First, while it is certainly preferable that there be strong informed-consent rules than that there not be, the fact that parents of the to-be-destroyed-for-research embryos consent is irrelevant (isn't it?) to what for pro-lifers (like, I would have thought, Kmiec) the real question, i.e., whether it is moral to destroy-for-research such (unconsenting, I assume!) embryos.  

Second, the "more strict than Bush" claim is extremely misleading.  A regime that will involve massive new funding for the actual destruction-in-research of human embryos is hardly more "strict" (in a way that pro-lifers will care about, anyway) than one in which federal funding is permitted only using a limited set of previously-created stem-cell "lines."

What might have been . . .

By Rick Garnett

500 years ago today, Henry VIII acceded to the throne of England, which was then the most Catholic country in the world.  Sigh.

Toward a just war theory . . . of torture?

By Rob Vischer

I do not subscribe to the theory that torture is only torture if it leaves lasting scars.  Even if I did, William Saletan explains why mental torture is still torture.  Key quote: "You can't torture the mind without altering the brain."

And then there's this: Bobby Eberle, on the GOPUSA blog, asks "Mr. Obama, how far would you go to save an American life?"  My own answer: "probably not as far as you would, Mr. Eberle, thank God."  More interestingly, in the post he recounts a conversation with Deal Hudson about whether torture can ever be justified under Catholic teaching.  Here's the excerpt:

In addressing "torture," Hudson put it in the context of the "just war" philosophy.

Hudson: As with just war theory, there must be a clear threat; there must be reasonable chance for success; there must be a reasonable use of force (in the case [of torture] death or impairment should never be the result), and the consequences should not cause greater harm.

Hudson further explained to me that "the precise issue is whether or not the state can inflict suffering in order to protect the common good.  If we say 'yes,' the circumstances have to be tightly prescribed."

Assuming the quote is accurate, does anyone know what Deal Hudson is talking about?  Is there any tradition of applying a just war framework to torture?

Tuesday, April 21, 2009

Waldron on Christian Silence and Torture—take two

By Robert John Araujo, SJ

 

I share Rob’s interest in the work of Jeremy Waldron especially on his recent essay in Volume II of the Journal of law, Philosophy and Culture regarding the putative Christian silence and torture. I am anxious to find out what evidence Professor Waldron uses to support his conclusions that are reported in the excerpt. I don’t think it is Catholic, however.

 

My reasons for stating this is that I have been at too many international debates serving as a representative of the Holy See in which torture has been the subject of the discussion. My guiding principles in these discussions have been this publicized synthesis of Catholic teaching that long precedes the War in Iraq and its aftermath:

 

The activity of offices charged with establishing criminal responsibility, which is always personal in character, must strive to be a meticulous search for truth and must be conducted in full respect for the dignity and rights of the human person; this means guaranteeing the rights of the guilty as well as those of the innocent. The juridical principle by which punishment cannot be inflicted if a crime has not first been proven must be borne in mind. In carrying out investigations, the regulation against the use of torture, even in the case of serious crimes, must be strictly observed: “Christ’s disciple refuses every recourse to such methods, which nothing could justify and in which the dignity of man is as much debased in his torturer as in the torturer’s victim”. International juridical instruments concerning human rights correctly indicate a prohibition against torture as a principle which cannot be contravened under any circumstances. Likewise ruled out is “the use of detention for the sole purpose of trying to obtain significant information for the trial”. Moreover, it must be ensured that “trials are conducted swiftly: their excessive length is becoming intolerable for citizens and results in a real injustice”. Officials of the court are especially called to exercise due discretion in their investigations so as not to violate the rights of the accused to confidentiality and in order not to undermine the principle of the presumption of innocence. Since even judges can make mistakes, it is proper that the law provide for suitable compensation for victims of judicial errors.

 

I sometimes wonder if folks consider that the Catholic Church’s position on many important, even vital issues does not exists because it is not reported in the popular media. If the pope mentions the words “condoms” or “abortion,” you can expect the popular media to pounce on what is taught, and pounce they do. But if the Church addresses “torture,” “Darfur,” the “crisis in education,” or “hunger,” (just to cite a few important, pressing issues of the day) does the popular media report these teachings, exhortations, and positions? My answer is this: probably not. Would the popular media be interested in the fact that the Holy See is one of the earliest parties to the Geneva Conventions for which it does much good in regularly proclaiming their importance and advocating for their authentic implementation? (The Holy See signed the Conventions right after the conclusion of their negotiations in 1949, and it ratified them in February of 1951 [its ratification being the first deposited]). Probably not. So, I am not surprised that Professor Waldron has reached the conclusion he has if he had the Catholic Church in mind when he wrote this article. When it comes to any major issue and the Church’s view on them, we’d all be better off if we could spend more time in researching primary sources and less on secondary. The primary sources are what are important even though the popular media may not agree with this position.

 

RJA sj

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