Merged Senate Report on CIA Torture Program

[anglolawyer]

IANAL but I think what Anglolawyer is saying that the only possible defense would to argue on a basis of necessity. I.e that a case could potentially be made (solidity of said case to be evaluated) that they acted from their view of the situation believing that it was necessary to do what they did. IANAL so can't evaluate how common law and statute could be directed in this case to work but I am sure we have all seen cases where flimsy defences have won the day.

There appear to be no English cases in which necessity has been raised as a defence to an allegation of assault involving torture. It's certainly the only defence I can think of and it would take very particular circumstances for it to have a chance. The one where the cops only have 20 minutes to find the baby in the car and the thief won't tell them where it is ought to have a fair prospect of success I think. There are all kinds of other ways the law can reflect our general feeling in that case that no wrong has been done - there is no obligation to prosecute for example (the case might fail a public interest test) and the court can order an absolute discharge even in case of a conviction.

All of which is very well, but it doesn't get the CIA off the hook.

 

[Darat]

Now, as then, a lack of moral courage (or even a moral compass) in your leader's and occasion I believe such criticism to be not only justified but also necessary... Snip...

I would also point out that I would put money on our leaders acting in exactly the same way or (just throwing this out there...) colluding with American criminals during the course of events discussed here.

Given what we now know about our cooperation with the USA intelligence services at the time and the information that we pressed to have redacted from the report sadly I suspect we will not have clean hands.

 

[fishbob]

Evidently, nobody is reading my posts. I have posted that torture may, in certain circumstances, attract the defence of necessity, thereby making it not a crime. Why is that not an argument supporting Sunmaster's position? Actually, it goes further than his position.

What is the qualitative difference between the extreme and clear examples given in the recently discussed article and what the CIA has been doing? I would suggest the CIA cannot demonstrate that its use of force is proportionate, necessary or the only way to avoid consequences worse than those inherent in the torture itself.

You have not demonstrated a single instance when it was necessary.
Nobody has demonstrated such an occurrence.

 

[RandFan]

Evidently, nobody is reading my posts.

Evidently, nobody has bothered to actually read the paper.

I have posted that torture may, in certain circumstances, attract the defence of necessity, thereby making it not a crime. Why is that not an argument supporting Sunmaster's position?

Because the author takes great pains to explain why a one-off emergency situation cannot justify torture that is ongoing and does not have an specific identified threat.

Actually, it goes further than his position.

Actually it doesn't. The paper does two things.

1. Makes a case why a one-off case could be morally justified.
2. Explains why such a case cannot be used to justify torture for the reasons that the CIA used.

What is the qualitative difference between the extreme and clear examples given in the recently discussed article and what the CIA has been doing?

What the CIA has been doing is addressed in the second part of the paper. The author explains that since torture debauches the torturers and the institutions that use it that it should never be systematized or justified by any legal authority. Which is precisely what the CIA did.

I would suggest the CIA cannot demonstrate that its use of force is proportionate, necessary or the only way to avoid consequences worse than those inherent in the torture itself.

That is the case made in the paper.

 

[jimbob]

You have not demonstrated a single instance when it was necessary.

I don't think anglolawyer is actually claiming that it is ever justified, simply that (s)he can conceive of the possibility of it being necessary in some extreme situations - far more extreme than those the CIA faced.

Is that a fair interpretation, anglowlawyer?

 

[Frozenwolf150]

I brought these comparisons up in another debate on torture, and I'm going to bring it up here. So long as we still use torture:

1) Rape is morally justified as long as it's done to the right people, the right way, for the right reasons.
2) Slavery is morally justified as long as it's done to the right people, the right way, for the right reasons.
3) Eugenics is morally justified as long as it's done to the right people, the right way, for the right reasons.
4) Cannibalism is morally justified as long as it's done to the right people, the right way, for the right reasons.

See? See? It all makes sense! See?

 

[RandFan]

Would people take a few minutes and read the paper.

Here's the link.

Here is the authors stated purpose of the paper.

In this paper I will argue that torture is morally justified in some extreme emergencies. However, I will also argue that notwithstanding the moral permissibility of torture in some extreme emergencies, torture ought not to be legalized or otherwise institutionalised.

What the CIA did was to institutionalize torture.

THAT'S the problem.

 

[anglolawyer]

I don't think anglolawyer is actually claiming that it is ever justified, simply that (s)he can conceive of the possibility of it being necessary in some extreme situations - far more extreme than those the CIA faced.

Is that a fair interpretation, anglowlawyer?

Yes, thank you.

As I said, nobody (except you maybe) is reading what I am saying. There haven't been any cases in my jurisdiction in which a defendant has sought to justify torture on grounds of necessity so we simply don't know what would happen if such a case came to court but I posted the essential elements of the defence. Once more, the defendant must show in relation to the incident of torture:

a) it was done only to avoid consequences which could not otherwise be avoided and which, if they had been followed, would have inflicted on him or another he was bound to protect inevitable and irreparable evil
The police had to use force to extract essential information from an otherwise reluctant detainee.
b) that no more was done than was reasonably necessary, and
Take this as a given, no reason why this could not be satisfied.
c) the evil inflicted by it was not disproportionate to the evil avoided.
One beaten up crook versus one dead baby. No brainer.

Why couldn't all that apply to the baby in car case?

ETA commentary added

 

[RandFan]

I don't think anglolawyer is actually claiming that it is ever justified, simply that (s)he can conceive of the possibility of it being necessary in some extreme situations - far more extreme than those the CIA faced.

The lack of necessity and a specific and identified threat renders what the CIA did morally unjustifiable.

That is why the idea that torture could be justifiable in an extreme one-off emergency cannot be used to therefore justify institutional torture.

The purpose of the paper is to decouple the two propositions.

Premise: Torture is justifiable in a one-off emergency situation.
Conclusion: Institutional and routine torture is therefore justifiable.

The conclusion does not follow from the premise.

 

[RandFan]

Yes, thank you.

As I said, nobody (except you maybe) is reading what I am saying.

There haven't been any cases in my jurisdiction in which a defendant has sought to justify torture on grounds of necessity so we simply don't know what would happen if such a case came to court but I posted the essential elements of the defence. Once more, the defendant must show in relation to the incident of torture:

a) it was done only to avoid consequences which could not otherwise be avoided and which, if they had been followed, would have inflicted on him or another he was bound to protect inevitable and irreparable evil
b) that no more was done than was reasonably necessary, and
c) the evil inflicted by it was not disproportionate to the evil avoided.

Why couldn't all that apply to the baby in car case?

1. The subject at hand ISN'T a one-off emergency situation.
2. What the CIA did cannot be justified by a one-off emergency situation.

 

[anglolawyer]

1. The subject at hand ISN'T a one-off emergency situation.
2. What the CIA did cannot be justified by a one-off emergency situation.

Yes, as I have already said.

 

[RandFan]

Yes, as I have already said.

I feel as if I've turned onto a one way street traveling in the wrong direction. I feel as if it might be me who is not getting it but I'm not sure why.

Sorry if that is the case.

I probably picked the wrong week to quite taking amphetamines.

 

[sunmaster14]

The lack of necessity and a specific and identified threat renders what the CIA did morally unjustifiable.

That is why the idea that torture could be justifiable in an extreme one-off emergency cannot be used to therefore justify institutional torture.

The purpose of the paper is to decouple the two propositions.

Premise: Torture is justifiable in a one-off emergency situation.
Conclusion: Institutional and routine torture is therefore justifiable.

The conclusion does not follow from the premise.

That is not the purpose of the paper. The purpose of the paper is to show that the moral absolutist position is untenable. The title of the paper is "Is Torture Ever Morally Justifiable?" after all. In fact, the paper actually makes no claims about routine torture. It merely (and explicitly) assumes that it is not morally justified.

As for legalization of torture, it advocates against that (as do I) even though it appears that creating a legal safe harbor (e.g. torture warrants, which Dershowitz supports) would be a natural and logical extension of the principle that torture is sometimes morally permissible. It is unnecessary because when the time comes, a moral person can be counted on doing what he has to do, and codified torture might be potentially corrosive because of the slippery slope problem (among other problems).

I suppose it's a matter of judgment, but I view the whole CIA torture program as a one-off, which was limited in time, scope, and goals (which in no way means it was morally justified). It was not a legalized program, actually. The President cannot make laws. In fact, the President is part of the decision to torture and therefore has legal exposure, in a way in which a member of a legislature voting to legalize exceptions for torture would not. Furthermore, it was not a public decision, and the original authorization was limited in scope and had a specific goal in mind (getting information out of Abu Zubaydah to prevent what was thought to be an imminent wave of terrorist attacks).

Perhaps most importantly you are conflating a moral argument with a policy argument. The author argues that even though torture may be morally permissible in some circumstances, it is bad policy to legalize it. However, that is not the same thing as saying that it is morally impermissible to legalize it.

 

[thaiboxerken]

That is not the purpose of the paper. The purpose of the paper is to show that the moral absolutist position is untenable.

I remember when Conservatives thought that moral relativism was evil. I guess moral relativism is only evil when it comes to homosexuality and abortion.

 

[RandFan]

¹That is not the purpose of the paper. ²The purpose of the paper is to show that the moral absolutist position is untenable. The title of the paper is "Is Torture Ever Morally Justifiable?" after all. In fact, the paper actually makes no claims about routine torture. It merely (and explicitly) assumes that it is not morally justified.

³As for legalization of torture, it advocates against that (as do I) even though it appears that creating a legal safe harbor (e.g. torture warrants, which Dershowitz supports) would be a natural and logical extension of the principle that torture is sometimes morally permissible. It is unnecessary because when the time comes, a moral person can be counted on doing what he has to do, and codified torture might be potentially corrosive because of the slippery slope problem (among other problems).

⁴I suppose it's a matter of judgment, but I view the whole CIA torture program as a one-off, which was limited in time, scope, and goals (which in no way means it was morally justified). It was not a legalized program, actually. The President cannot make laws. In fact, the President is part of the decision to torture and therefore has legal exposure, in a way in which a member of a legislature voting to legalize exceptions for torture would not. Furthermore, it was not a public decision, and the original authorization was limited in scope and had a specific goal in mind (getting information out of Abu Zubaydah to prevent what was thought to be an imminent wave of terrorist attacks).

Perhaps most importantly you are conflating a moral argument with a policy argument. The author argues that even though torture may be morally permissible in some circumstances, it is bad policy to legalize it. However, that is not the same thing as saying that it is ⁵morally impermissible to legalize it.

1. Is this the twilight zone? I quoted the author as to his purpose. How is it that you ignore that?
2. Not according to the author who explicitly states the purpose of his paper is to argue against the routine use and institutionalization of torture.
3. The author takes great pains to avoid your equivocation by further stating "institutionalized" and "routine".
4. The CIA institutionalized torture and called it "legal". They also routinely tortured. Committing an act many times isn't a one-off emergency. The CIA did not face a specific identified threat. You are doing exactly what the author is trying to prevent, rationalizing the use of torture without a known threat.
5. Yes. It is.

 

[RandFan]

In fact, the paper actually makes no claims about routine torture.

The word "routine" appears 6 times. In one instance the author explicitly states that the routine use of torture is depraved and leads to a hole host of bad outcomes (page 7 4th paragraph).

...even though it appears that creating a legal safe harbor (e.g. torture warrants, which Dershowitz supports) would be a natural and logical extension of the principle that torture is sometimes morally permissible.

Read the damn paper.

So torture warrants are highly undesirable, indeed a threat to liberal Democratic institutions.

Exactly what do you think "highly undesirable" and "a threat to liberal Democratic institutions" means?

Most notably, where does the author say this? In the second part of the paper that argues why NOTHING follows from the fact that torture may be morally permissible in a one-off emergency situation. Your insinuation that the author thinks something might be an extension of a one-off emergency situation is directly contradicted by the words of the author.

It is unnecessary because when the time comes, a moral person can be counted on doing what he has to do...

The author does not use the word "unnecessary". The author uses the words "highly undesirable" and a "threat to liberal Democratic institutions".

Read the paper for comprehension and not simply an attempt to justify your position. The author would recoil at your suggestions as he has made it clear that there is no nexus between a one-off emergency and anything else whatsoever that would justify torture beyond a known and direct threat. In other words, you have turned the purpose of the author 180 degrees from his intent.

 

[anglolawyer]

I feel as if I've turned onto a one way street traveling in the wrong direction. I feel as if it might be me who is not getting it but I'm not sure why.

Sorry if that is the case.

I probably picked the wrong week to quite taking amphetamines.

No, it's probably my fault for switching direction in mid-post without being clearer. I think the article Sunmaster linked is nonsensical because it arrives at an absurd conclusion (that public servants should be willing to sacrifice themselves in torturing people on our behalf). I don't disagree with the idea that there may be special cases in which torture can be justified, indeed the law may already allow it (we are just awaiting the ideal test case) but systematic EIT is another thing altogether.

 

[sunmaster14]

Is this the twilight zone? I quoted the author as to his purpose. How is it that you ignore that?

Where does he say that's the purpose of his paper? He merely states what's in it. It's obvious that the purpose of his paper is to show that moral absolutism is untenable. However, he also wants to point out that this does not mean that he advocates a policy of legalization, and wants to state that it does not necessarily follow that just because there are exceptional cases where torture is morally permissible that we should formalize its use in those cases. If the purpose of his paper was to show that legalization would be bad policy, there would actually be no reason to argue that torture is sometimes morally permissible.

Not according to the author who explicitly states the purpose of his paper is to argue against the routine use and institutionalization of torture.

No, he doesn't. He actually explicitly writes that he will assume that the routine use of torture is not morally justified. To wit (emphasis added):

I argue that there are, or could well be, one-off acts of torture in extreme emergencies that are, all things considered, morally justifiable. Accordingly, I am assuming that the routine use of torture is not morally justified; so if it turned out that the routine use of torture was necessary to, say, win the war on terrorism, then some of what I say here would not be to the point.

The author takes great pains to avoid your equivocation by further stating "institutionalized" and "routine".

He is starting with the assumption that routine torture is immoral. His reference to institutionalized is almost always coupled with the term legalized. Institutionalized does not mean routine. It means codified in some way in a code of laws or ethical standards. You simply have misconstrued the distinction.

The CIA institutionalized torture and called it "legal". They also routinely tortured. Committing an act many times isn't a one-off emergency. The CIA did not face a specific identified threat. You are doing exactly what the author is trying to prevent, rationalizing the use of torture without a known threat.

I'm sorry, but I don't know how you can conclude that the author is trying to prevent rationalizing the use of torture in various situations. You do not begin an argument that torture should not be used in certain situations by arguing persuasively that it is morally permissible in other situations. He only justified torture in certain extreme one-off situations, but that doesn't mean that it can't be justified in somewhat less extreme, less one-offy situations.

Yes. It is.

Not a chance. He's making a policy argument. He could just as well argue that the minimum wage should be raised because having a bunch of working poor is corrosive to society. That's not a moral argument.

 

[sunmaster14]

The word "routine" appears 6 times. In one instance the author explicitly states that the routine use of torture is depraved and leads to a hole host of bad outcomes (page 7 4th paragraph).

That reference is to an argument that others have made, i.e. those commentators who "are reluctant to concede that the police are morally entitled ... to torture the offender." Once again I think you have confused some of the author's points.

Read the damn paper.

I encourage you to do the same, as well as read my posts, since you are misconstruing both.

Exactly what do you think "highly undesirable" and "a threat to liberal Democratic institutions" means?

It doesn't mean morally impermissible. I would say that some of Obama's executive actions are highly undesirable and a threat to liberal Democratic institutions, but I wouldn't say they're immoral.

Most notably, where does the author say this? In the second part of the paper that argues why NOTHING follows from the fact that torture may be morally permissible in a one-off emergency situation. Your insinuation that the author thinks something might be an extension of a one-off emergency situation is directly contradicted by the words of the author.

Well, you are just completely misconstruing what I wrote (and excerpting it out of context, by the way).

<snip>

Read the paper for comprehension and not simply an attempt to justify your position. The author would recoil at your suggestions as he has made it clear that there is no nexus between a one-off emergency and anything else whatsoever that would justify torture beyond a known and direct threat. In other words, you have turned the purpose of the author 180 degrees from his intent.

I'm glad that you can read the author's mind. Perhaps you should try for the million dollar prize.

 

[RandFan]

¹Where does he say that's the purpose of his paper? He merely states what's in it. It's obvious that the purpose of his paper is to show that moral absolutism is untenable. However, he also wants to point out that this does not mean that he advocates a policy of legalization, and wants to state that it does not necessarily follow that just because there are exceptional cases where torture is morally permissible that we should formalize its use in those cases. If the purpose of his paper was to show that legalization would be bad policy, there would actually be no reason to argue that torture is sometimes morally permissible.

²No, he doesn't. He actually explicitly writes that he will assume that the routine use of torture is not morally justified. To wit (emphasis added):

He is starting with the assumption that routine torture is immoral. His reference to institutionalized is almost always coupled with the term legalized. Institutionalized does not mean routine. It means codified in some way in a code of laws or ethical standards. You simply have misconstrued the distinction.

³I'm sorry, but I don't know how you can conclude that the author is trying to prevent rationalizing the use of torture in various situations. You do not begin an argument that torture should not be used in certain situations by arguing persuasively that it is morally permissible in other situations. He only justified torture in certain extreme one-off situations, but that doesn't mean that it can't be justified in somewhat less extreme, less one-offy situations.

Not a chance. He's making a policy argument. He could just as well argue that the minimum wage should be raised because having a bunch of working poor is corrosive to society. That's not a moral argument.

1. Jesus Christ, read what he wrote. The author is explicit in his reasons why the routine use of torture is morally impermissible. It debauches the torturers and the institutions.
2. The author states his assumption for the first part of the paper and THEN in the second part argues why he does not simply assume.
3. That is his stated purpose. To disengage one from the other. The author makes clear that NOTHING follows from a one-off emergency situation and then proceeds to detail the dehumanizing and catastrophic effects of torture.
4. The author is clear and unambiguous in his choice of words. A "threat to democratic liberal institutions" is intentional.