A Philosopher's Blog

Prosecute the Torturers?

Posted in Ethics, Law, Politics by Michael LaBossiere on April 24, 2009

Torture and the torture memos are once again in the news. As Jon Stewart of the Daily Show has often pointed out, after WWII the United States executed Japanese soldiers for water boarding American soldiers. Currently it seems unlikely that the Americans involved in torture will even be prosecuted for crimes.

The individuals who actually inflicted the torture cannot, obviously enough, rely on the defense that they were just following orders. While I am not a legal scholar, I think that the precedent set by the Nuremberg trials should close off that option.

The most viable defense for the torturers is that they were informed by their superiors that their actions were legal and acceptable. While this might seem to be on par with the claim that they were just following orders, there is an important distinction to be made.

When a person asserts that he is not responsible because he was just obeying orders, he is denying his own agency as a person. Put less formally, he is saying that he was obligated to set aside his own conscience and will in favor of that of his superior. Obviously, saying “I did it because I was told to do it” does not get a person off the hook. Unless, of course, he is incapable of making decisions on his own or there are extenuating circumstances.

When a person asserts that he is not responsible because he was told that his action was legal and right, the implication is that he intended to do what was legal and right but was misinformed by those who were supposed to know. In this case, the defense has some plausibility. Matters of law can be rather arcane and it is not unreasonable to expect that people would need to rely on experts to tell them what is legal and illegal. Morality can also be rather difficult and hence there can be a need to rely on the (alleged) experts to distinguish between right and wrong. As such, the torturers could claim that they should not be held accountable for their misdeeds because those responsible for informing them about the permissibility of torture misled them.  As such, the lion’s share of the responsibility for the misdeeds belongs to the people who told the torturers that it was okay to torture (or that the torture was not torture).

This defense does have a degree of plausibility. Consider, if you will, the following analogy. Suppose that you are driving and you come to an intersection blocked by a police car. You stop, but then the officer motions for you to drive by him. However, shortly after you drive past him, you are arrested because you just entered an area that has been put off limits because Obama’s motorcade is driving through. In this case you would hardly be responsible-the officer was responsible for telling you that you should not drive past him. As such, he is in the wrong rather than you. After all, how could you possibly know that Obama was driving through just then? Of course, if the information about Obama’s visit was readily available and you could reasonably be expected to know, then you would bear some responsibility for your decision to drive past the officer.

As the analogy shows, this defense hinges on the person being able to claim justifiable ignorance. In other words, it has to be unreasonable to expect the person to know the legal or moral status of the action on their own and they need to  justifiably dependent on the knowledge of another. As such, those who were involved in torture would need to show that they did not have the knowledge needed to sort out matters for themselves, that they could not reasonably be expected to have such knowledge and that those responsible for imparting such information misled them. If these conditions can be met, then it would be unreasonable to prosecute these people. If these conditions cannot be met and torture is illegal, then these people should be prosecuted. If these conditions cannot be met and torture is evil (which it certainly seems to be) then these people would be guilty of evil deeds.

Naturally, the next question is what to do about the people who might have misled the torturers. But, that is a topic for another time.

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24 Responses

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  1. magus71 said, on April 25, 2009 at 7:42 am

    Are we going to prosecute the agents that trained other agents in water-boarding techniques? Because all CIA agents that used the method had to actually experience it. Does the Left want us to start doing all the things we did in WWII? This war would be over real quick if they make that argument. Target: Islamad. MIRV warhead. Poof…. Kabul–ditto. Tehran–see ya.

    And would the Left be for executing the people held in Gitmo for things like intentionally killing innocents in vegetable stands, using bombs? Or are we just out to get water-boarders? What about slappers? Those nafarious CIA agents who jack-slapped a terrorist into telling him where other terrorists were? Isn’t slapping torture? So kids are tortured by parents who slap them–I see where this is going. Spanking is torture too….

    Online Dictionary: Torture:
    1. the act of inflicting excruciating pain, as punishment or revenge, as a means of getting a confession or information, or for sheer cruelty.
    2. a method of inflicting such pain.
    3. Often, tortures. the pain or suffering caused or undergone.
    4. extreme anguish of body or mind; agony.
    5. a cause of severe pain or

    Does water-boarding cause extreme anguish or pain? I garantee I experience more while doing combatives. Oh wait–I’m in the US Army and they can do anything they want to me and the Left won’t make a peep. Except of course if they throw me out for for being Gay. So when they break my leg in SERE school, I’ll just say I’m gay to get out of having the other one broken. What if they tickle me to the point of me wanting to scream? Just asking?

    Seems to me a key question is whether water-boarding is torture. If it isn’t then we have a summary judgement. No crime on the face of it.

    We don’t water-board. Let’s be done with it. Soldiers are dying fighting mujahadeen–the Left doesn’t care.

    • Michael LaBossiere said, on April 25, 2009 at 12:23 pm

      If water boarding is not torture, then the United States needs to issue a formal apology for executing those Japanese soldiers who water boarded American troops in WWII. This would not be revisiting WWII. If it is true that water boarding is not torture, then we acted wrongly when we executed those people. As such, we have a moral obligation to make amends for our actions.

      Obviously, we should go after people who are committing murder. My position is based on a consistent principle: those who do wrong should be held accountable for their misdeeds.

      Water boarding certainly seems to be torture. The fact that people suffer more pain while training or doing other things does not prove that it is not torture. After all, torture is not defined based on what sort of stuff some people might be willing to endure.

      While there is not definite line between torture and non-torture, we do not need such a line (otherwise we’d fall victim to the classic line drawing fallacy). However, water boarding and other such techniques seem clearly in the realm of torture. Again, I appeal to the US response to the torture of American POWs. If that was torture and wrong, then what we did was also torture and wrong. That is a matter of moral consistency. Ethics does not shift about depending on whether it is us or them doing the torturing.

  2. kernunos said, on April 25, 2009 at 8:42 am

    All I can think about is a captive’s head getting SAWED off. The savages cannot even make it quick. Water boarding has to be soooo brutal. It took how many times before KSM gave up the goods? A hammer and his toes and I bet you I could have gotten the same info in a few minutes.

    • Michael LaBossiere said, on April 25, 2009 at 12:26 pm

      Their misdeeds do not justify our misdeeds (this would be the “two wrongs make a right” fallacy). Also, we claim to be the good guys. Saying we are good is cheap and easy. Being good is neither.

      Good people do not crush toes with hammers. I have no objection to killing someone in legitimate self-defense, but mutilating a helpless victim is beyond the pale.

      • kernunos said, on April 25, 2009 at 7:49 pm

        Well, making them as helpless victims sure puts an interesting spin on your argument. Are you assuming there was no reason for the torture in the first place? that they were just randomly pulled off of the streets for me to smash their toes? That sounds like an NPR weenie argument. Stupid things happen to stupid people and bad things happen to bad people. I find it interesting that we are called the “good guys” when it only comes to tying one’s hands behind one’s back and letting people get away with much more than they should.

  3. kernunos said, on April 25, 2009 at 8:45 am

    As for our legal system I can’t help but feel that it has been better served by people lately that take advantage of it. For instance: A trial for the captured Somali Pirate? Is there any doubt that it was him or that he did it? A full blown Circus Trial for something that should have been an execution on the spot?

    • Michael LaBossiere said, on April 25, 2009 at 12:33 pm

      The thing is that we pride ourselves on being a nation of law. Killing a pirate in battle or to save a prisoner is fine-that is open combat. But, to execute a prisoner without due process would be to embrace lawlessness. We are not pirates or vigilantes-that is one thing that makes us better then them.

      Yes, he is obviously guilty. Yes, he should be punished. But he is also entitled to a fair trial. The trial is not about whether we have doubt or not. The point of the trial is that we respect the rule of law and due process-that we do things properly, fairly and justly. Again, we are supposed to be the good guys. Good guys don’t put a bullet in a teenager’s head when he poses no threat to them. They take him back to stand trial for his crime.

  4. kernunos said, on April 25, 2009 at 7:56 pm

    Where is the lawlessness? He broke the law-obviously. He was a pirate. A fair trial for what? to spend more of my tax money? He does not pose a threat now but he did! You could carry your argument further and say “Just let him go. He doesn’t pose a threat now.”. We let people go from Gitmo’ go that went back out to the battlefield and killed more people. There would still be rule of law. The Law of Natural Selection. He knew he was doing wrong and he knew the consequences. He was innocent until he threatened others’ lives.

    • kernunos said, on April 25, 2009 at 7:59 pm

      Besides, we know exactly what our justice system is like. It serves the guilty better that it does the innocent. O.J. Simpson is a perfect example. We knew he was guilty too. Putting this Pirate on trial is only giving him a chance to walk away a free-bird.

      William Ayers–“Guilty as Sin, Free as a Bird, It’s a Great Country”

  5. kernunos said, on April 25, 2009 at 8:37 pm

    Here is another fair trial by the rule of law.

    http://www.q13fox.com/pages/news_story_landing_page/?Teens-Sentenced-in-Death-of-Tuba-Man=1&blockID=273075&feedID=144

    What if Tuba Man defended himself and killed the two boys? then he would be on trial. Once these brutal killers started their horrid action Tuba Man would be nothing but a victim under our Justice system. If he killed them in self defense most would say maybe it was a little extreme but he was defending himself and we would move on. If we decided to execute the two teens after a ‘fair trial'(of course this would never happen here) their would be outrage like no other. My question is: What is the difference between the two end results? Other than tuba Man being dead in one scenario the two boys are both dead. As it stands now these two boys or at least one of them will most likely be involved in another violent crime. What have they learned and is this small amount of time behind bars worth it for the exchange of a human life? We are so much the good guys we are better to evil than to innocents.

  6. magus71 said, on April 30, 2009 at 11:14 am

    Nancy Pelosi has to be the most arrogant, stupid politician in Washington.

    http://www.realclearpolitics.com/articles/2009/04/30/pelosis_tortured_explanation_96262.html

  7. kernunos said, on April 30, 2009 at 9:04 pm

    The funny thing is that Rush L. predicted what she would say to a T days ahead of time. It is the ‘Well, we were shown but we didn’t think they were serious defense’. Pleeeeassse, save it for idiots, just like the WMD argument.

    I would say Joe Biden runs a close second. He is a pathological liar too. I’m convinced of this because he doesn’t just lie to save his butt or about important issues. He lies about the most trivial and mundane things that people wouldn’t give a rat’s ass about.

  8. magus71 said, on May 1, 2009 at 2:20 am

    I cannot believe Joe Biden is VP. The things he says are soooooo stupid, so unthought out. He was klnown for this type of thing before the administration picke dhim–and yet they picked him. I have no explanation except that he’s a weak soul who’ll defend Obama’s decisions to his political death.

    They were playing tapes this morning of Pelosi saying that bankruptcy was not an option for the co0mpanies that got bailed out. Now Chrysler declares. Hmmmm.

  9. kernunos said, on May 1, 2009 at 8:10 am

    I liked when he looked right at the guy in the wheelchair and asked him to stand up.

    He is a drunk too. All kinds of clips out there. It isn’t an issue except for the little fact that it’s while he’s working for the poeple of the U.S.

  10. fiddleferme said, on June 13, 2009 at 7:19 am

    Yes indeed. Here are the rationalisations presented to the public:

    http://fiddleferme.wordpress.com/2009/06/13/rationalisations-of-the-torturers/

    I think the human race is going downhill.

    • Michael LaBossiere said, on June 13, 2009 at 1:13 pm

      Could be. Assessing the average of the moral standing of humanity is a tough thing to calculate. People have done plenty of awful things in the past. I’ve sometimes wondered if evil is a constant and just changes how it is manifested.

      • fiddleferme said, on June 13, 2009 at 2:46 pm

        Yes this question nags me too. And it is depressing to consider. I can only guess.

        One theory is that there is a compassion gene we have not discovered which some lack.

        Another observation is that this torture is 99% inflicted by men. Why is this? My guess; men and woman are built differently for problem solving and compassion.

        The Bonobos give me hope. But you see they are almost extinct.

        Thanks for your comment.

        • Michael LaBossiere said, on June 15, 2009 at 1:47 pm

          Our genes provide, I think, our basic capabilities and no doubt provide the biological foundations that make compassion possible. But, I think compassion can be learned through habituation and training. If so, this would seem to be a good thing-otherwise compassion would be a matter of luck( or genetic engineering).

          There might be a biological basis for the tendency for men to be more physically aggressive and violent, but much of it is probably socialization. Hard to tell for sure, though.

          While some scientists do like the Bonobos, it is always very risky to draw analogies between humans and other primates.

      • kernunos said, on June 13, 2009 at 6:03 pm

        Seriously, I have been emotionally tortured by a few women. Sure they could not physically torture me but they are capable. What about the teenage girl videos where they invite a less cool girl over and then beat the ever living snot out of her not backing down to begging and crying. Save the male bashing for some other blog.

      • magus71 said, on June 14, 2009 at 1:46 am

        Actually, jaimie, this seems the perfect blog for male bashing.

  11. magus71 said, on June 13, 2009 at 3:30 pm

    Let’s just hang around and lament….

  12. kernunos said, on June 13, 2009 at 6:05 pm

    Here are some nice non-torturing girls.

    http://www.clickorlando.com/news/15817493/detail.html

  13. magus71 said, on June 14, 2009 at 1:41 am

    Those cheerleaders can be rough…. She should consider the welfare of humanity before she takes such action…


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