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Saying no! to Jack Bauer: mainstreaming torture

Rebecca Gordon interviewed by Richard Marshall.

Rebecca Gordon is the bad-ass philosopher who argues that Jack Bauer is wrong to use torture. She is an applied ethicist who is engaged all the time with forging a dialectical relationship to the rest of the world, with current political realities, with torture as a government supported institution hidden in plain sight, with torture and Alisdair MacIntyre’s virtue ethics, with torture as a practice, about what Obama should do, about ‘enhanced interrogation’, why Jack Bauer is wrong, why Anscombe thinks certain thought experiments can erode ethical thinking, about whether her approach is universal, about rival approaches and whether there are reasons for optimism around this depressing reality. Come gather round people…

3:AM: What made you become a philosopher?

Rebecca Gordon: It was an accident. I’d spent the previous 30-odd years as an activist in a variety of political movements, supporting myself as a bookkeeper and accountant. In 2000, it seemed that many of the movements I’d worked in (for women’s liberation, for LGBT in solidarity with people in Central America, against apartheid in South Africa and for racial justice in the United States) had reached a kind of stasis. A long phase of my personal life was also drawing to a close; my partner and I had been caring for my mother for some years; now she was dying. It seemed like a good moment to do something new. Naturally, I thought, “I’ll go back to school.”

Next question: What to study? Mathematics? History? Small particle physics? I decided I might as well do something that encompasses the whole shebang and study theology. So I wandered over to the Graduate Theological Union, where I thought I’d spend a couple of years and emerge with an M.Div. from Starr King School for Religious Leadership. Once you’re enrolled at GTU, you can take classes at any of the nine schools, and U.C. Berkeley. So I did. And, against all my expectations, I fell in love with scholarship.

The Graduate Theological Union in Berkeley, California gave me a full ride for the first two years of a doctoral program in Ethics and Social Theory. As I worked on the dissertation, I began teaching in the Philosophy department at the University of San Francisco. Now I had something entirely new to learn about: how to teach. For the last nine years I’ve had the privilege of talking with an economically, racially, and nationally diverse group of young people about their own deepest values — at the time in their lives when they are trying to figure out who they want to be in the world.

The work that became Mainstreaming Torture began as my dissertation at the GTU.

3:AM: You say that the world of philosophical ethics is divided into two very distinct segments – theoretical and applied ethics and that in the academy the theoretical is more esteemed. But you are an applied ethicist – so are you out to change the world – and do you think the academy should be too?

RG: I would never presume to seek to “change the world” as an individual actor. That is a project for many people thinking, deciding, and working together in organized ways. My goal for the students in my classes is that they emerge thinking of themselves as citizens – not necessarily, or only, of a single nation, but of the world. Do I think the academy should be out to change the world? I think that much of its work inevitably does change the world, and not always for the better. I think that those of us located in the academy have a responsibility to recognize that our institutions are embedded in a larger society, and that, as is true for any institution, we exist in dialectical relationship to the rest of the world.

3:AM: You’ve recently engaged with the highly topical issue of torture. Was the motivation political awareness of what’s happening recently?

RG: Yes, and no. Yes in that I began thinking and writing about state torture within two months of the terrible attacks of 9/11. And no, in the sense that I had long known that my own government supported torture regimes in many places, including Greece, the Philippines, and large parts of Latin America.

In 1984 I spent six months in the war zones of Nicaragua. There I met survivors of torture at the hands of the counter-revolutionary force the Reagan administration was (at that time illegally) training, arming, and supporting, known as the contra. The contra had an intentional strategy of terrorizing civilians in rural areas, torturing them to death and leaving mutilated bodies to be discovered by others. I met at least one torturer as well.

A few years later, I served as interpreter for a U.S. delegation to El Salvador, just a few weeks before the murders of six Jesuits, their housekeeper, and her daughter at the Universidad Centroaméricana in San Salvador. At that time, the Salvadoran government enjoyed military and political support from United States. During our two weeks in El Salvador, one of our key contacts in the labor movement there was arrested. We were able to visit him in prison, where he described how he had been tortured. Not for information, but as a matter of course.

Within a few weeks of the 9/11 attacks, it became clear to anyone who wanted to know that one result was that people were going to be tortured. Of course this wasn’t the first time the U.S. government has been involved with torture, but September 11 did mark a real change. Almost overnight, a question that many people believed had been resolved – whether or not torture is wrong – was reopened. In November of 2011, Jonathan Alter, a mainstream liberal columnist, wrote in Newsweek, “In this autumn of anger, even a liberal can find his thoughts turning to … torture.” He wondered whether it might be a good plan to deport the Muslims living in the United States whom the FBI had rounded up to “Saudi Arabia, land of beheadings.” Americans who weren’t thinking about new methods to “jump-start the stalled investigation of the greatest crime in American history” had failed to recognize that they lived in a transformed world. “Some people still argue,” wrote Alter, “that we needn’t rethink any of our old assumptions about law enforcement, but they’re hopelessly ‘Sept. 10’—living in a country that no longer exists.”

The people the FBI had rounded up turned out to have nothing to do with 9/11, but some of them were held for more than half a year in cells in Brooklyn, NY, where they were subjected to treatment that has since become very familiar: 23-hour-per-day isolation, short shackling, beatings, sexual humiliation, exposure to freezing temperatures, and in at least one case, anal rape with a police flashlight.

The more I think about institutionalized torture, the more I realize that it is hidden in plain sight all around us – in U.S. jails an prisons, and even in institutions for people with disabilities. So yes, it is topical. And it has been going on for a long time.

3:AM: Are you approaching this via virtue ethics, four cardinal virtues and Alisdair MacIntyre and what is the best way to understand what torture is?

RG: I’m going to reverse the order of these questions, because I think that once we understand what institutionalized state torture is, it becomes clearer why I think MacIntyre’s contemporary virtue ethics provide a useful way of understanding torture’s moral implications.

The torture that I am concerned with is institutionalized state torture – the kind of organized, intentional program carried on by governments. It’s not Jack Bauer saving Los Angeles on 24. It’s not some brave person preventing a ticking time-bomb from going off by torturing the one person who can stop it. We must stop thinking of torture as a series of isolated actions taken by heroic individuals in moments of extremity, and begin instead to understand it as a socially embedded practice. A study of past and present torture regimes suggests that institutionalized state torture has its own histories, its own traditions, its own rituals of initiation. It encourages, both in its individual practitioners and in the society that harbors it, a particular set of moral habits, call them virtues or vices as you prefer.

Here’s my definition of institutionalize state torture: It is the intentional infliction of severe mental or physical suffering by an official or agent of a political entity, which results in dismantling the victim’s sensory, psychological, and social worlds, with the purpose of establishing or maintaining that entity’s power. This definition can be expanded to reveal its legal, phenomenological, and political dimensions.

The language about “intentional infliction of severe mental or physical suffering by an agent of a political entity” mirrors the definition found in the UN Convention against Torture and Other Cruel, Inhumane, or Degrading Treatment, to which the U.S. is a signatory. A phenomenological definition describes the ways in which torture reduces and distorts its targets’ orientation in time and space, its effects on language, and its destruction persons’ social connections. The “political” portion deals with the purposes of torture, which when it is institutionalized by a state, has much less to do with “intelligence gathering” than it does with political and social control.

So what does this understanding of torture have to do with virtue ethics and Alasdair MacIntyre? I would argue that when we understand torture as an ongoing practice, we can begin to see how it affects moral habits. (I’ll say more about how MacIntyre’s approach in answer to a later question.) The “cardinal” virtues have been around in “western” philosophy since Plato and Aristotle (although the latter’s catalogue of virtues was more varied and variable.) These virtues are courage, justice, temperance or moderation, and wisdom. In Mainstreaming, I describe ways that each of these is distorted by the practice of torture. ‘

Courage becomes not the ability to withstand fear and pain, but the ability to overcome instinctive squeamishness and inflict it.

Justice is tricky to define, but one thing is clear, which is that torture subverts the usual temporal order of legal justice. Ordinarily, trial precedes punishment. In torture, the order is reversed, and in many cases, no trial ever occurs.

Temperance can be thought of as a properly measured response to the joys and pleasures of life. In torture, what is prized is moderation in enjoyment of causing suffering. That is, interviews with torturers suggest that they have little respect for peers who torture because they like doing it. Thomas Aquinas includes the subsidiary virtue of humility within the category of temperance. Torture belies the humility that allows us to recognize that no human being can know the contents of another person’s mind. We cannot identify with certainty the “really bad guys,” who may in fact turn out to be unlucky men scooped up and sold on an Afghan battlefield.

The wisdom I am concerned with is practical wisdom, what Aristotle calls phronesis, and Thomas prudence, right reason about things to be done. It is the intellectual virtue, that allows us to think properly about moral questions. In Mainstreaming, I said,

“In commenting on the perpetrators of great evil, including torturers [Hannah Arendt] observed that the one thing they appeared to have in common was “something entirely negative; it was not stupidity but a curious, quite authentic inability to think.” Elsewhere she writes, “Without taking into account the almost universal breakdown, not of personal responsibility, but of personal judgment in the early stages of the Nazi regime, it is impossible to understand what happened.” The inability to think about what is happening around one, or to make a moral judgment about it, is a dangerous habit indeed.

The practice of institutionalized state torture requires precisely this “quite authentic inability to think” both in people directly involved, and in a public that learns not to think too hard about what is being done in our name for our supposed protection. I sometimes think it’s useful to talk about “culpable ignorance,” the failure to acknowledge something we could know if we chose to. Not that we haven’t had help getting there. I’ve argued that in the case of the “war on terror” the government’s “rhetoric of denial, the theater of fear with its manipulation of threat levels and [what William Cavanaugh calls] the ‘striptease of power,’ the apologias for torture by present and former government officials: All these serve to diminish ordinary citizens’ capacity to think clearly about moral questions.

3:AM: There’s always the danger that any definition will not cover all examples – so are you deliberately just focusing on the area where you think there’s an urgent need for policy decisions given the post- 9/11 political landscape rather than trying to cover other areas?

RG: I actually think that the definition of institutionalized state torture also applies to practices carried out daily in U.S. jails and prisons. There are direct connections, in terms of personnel and techniques, between torture in the “war on terror” and in other sites of incarceration. For example, we are beginning to understand just how severe the mental suffering is of people held in solitary confinement. To take another example, the expectation that people held in jail or prison will be raped is so common that it has become a staple threat on television police procedurals: “How long do you think a pretty boy like you is going to last in Rikers?”

3:AM: How does MacIntyre’s virtue ethics help your approach to condemning torture?

RG: It takes MacIntyre about 250 pages of After Virtue to unfold his virtue ethics schema. My attempt to summarize it here will doubtless be inadequate! There are four key concepts in MacIntyre’s ethics: telos, practice, virtue, and tradition. For him, the human telos (goal, purpose of life) is essentially participation in the ongoing historic quest to understand and enact the good life for human beings. Much of this quest takes place within the context of practices, which he understands as complex, cooperative socially-embedded human activities. A practice involves the collective work of several or many people, although individuals participating in a practice, for example, landscape painting, may often work on their own. It has its own set of internal “goods” – things that can only be achieved through participation in that particular practice. It has rules and standards of excellence. Entering into, learning, and participating in a practice creates allows a person to form virtues: stable, transferrable habits of character, which are in turn necessary to weathering the dangers and difficulties found in the larger quest for telos. Finally, practices are embedded in traditions, which MacIntyre conceives of not as a set of hallowed ideas or beliefs, as an ongoing argument about aspects of the human telos.

It seems to me (with one caveat, which is addressed in your next question), that institutionalized state torture is a practice, in the sense that MacIntyre describes. It is complex and collaborative. It has its own rules and standards of excellence. There are specific internal goods achievable only through this practice, goods which I call the production of truth, the production of enemies, and the production and reproduction of torturers themselves. Torture also produces moral habits, I argue, both in the practitioners themselves, and to some extent in the members of the larger society that knowingly permits torture.

3:AM: Why is torture a ‘false practice’?

RG: This is an expression introduced by Christopher Stephen Lutz in Tradition in the Ethics of Alasdair MacIntyre, to describe a human activity that satisfies most of MacIntyre’s definition of a practice, except that it is evil. In a false practice, the moral habits engendered inhibit rather than assisting a human being in her quest for the good life. In After Virtue, MacIntyre asks himself whether a human activity that is inherently evil can be called a practice. He answers in the negative, and cites torture precisely as the kind of complex, collaborative activity he would consider evil, and therefor not a practice.

3:AM: You suggest three responses to torture that Obama should heed. Can you tell us about them?

RG: I finished the manuscript for Mainstreaming Torture in June 2013. At that time I wrote that there were three things the U.S. government and specifically President Obama should do in the short term: Close the prison at Guantánamo Bay, Cuba, end the practice of extraordinary rendition (i.e., sending people to other countries for “interrogation’), and completely dismantle the torture apparatus of the tangle of intelligence and military agencies presently involved in torture.

I’ve also said that we still need a full accounting of the torture practices that evolved in the “war on terror.” This would include, but certainly not be limited to, release of the Senate Intelligence Committee’s 6,000-page report on the CIA’s “enhanced interrogation” program. Of course, the CIA is not the only U.S. agency involved in torture. I’ve also argued that in addition to a full accounting, there must be real accountability for the U.S. torture programs. This means holding to account not just a few low-level soldiers like Lynndie England of Abu Ghraib fame, but the high public officials who directed these programs.

Unfortunately, a year later none of these steps have been taken. Guantánamo remains open, with a present detainee population of around 140. The U.S. government, and specifically the CIA, still explicitly expresses a right to “render” detainees to other countries, although with the proviso that they not be tortured. Since this proviso has always been in effect, if not effectual, skeptics might be forgiven for doubting the sincerity of that proviso. And finally, nothing has been done to address torture carried out by U.S. civilian and military entities other than the CIA. As Jeremy Scahill ably demonstrates in Dirty Wars, one of the most important of these is the Joint Special Operations Command, or JSOC, which ran its own “interrogation” program in Iraq. Just a few days ago, the UK Guardian reported that there is still at least one U.S.-run detention center near the Bagram Air Force base in Afghanistan. The United States has handed over all its Afghan detainees to the Afghan government, but it retains the right to hold non-Afghan prisoners indefinitely.

3:AM: What are we to make of the idea of ‘enhanced interrogation’ and the CIA’s claim that it worked to prevent future planned atrocities? If torturing one guy prevents a war where hundreds of thousands are affected isn’t there a case? Is there never a justification?

RG: A couple of answers here. First, we are in no position to verify the CIA’s (relatively vague) claims that torture worked to prevent future atrocities. We have only their word for it.

We know that torture worked to force Khalid Sheik Mohammed to admit to being the mastermind of the September 11 attacks. But that admission had nothing to do with preventing future attacks. Furthermore, neither U.S. law nor international law permits the use of torture for the purpose of producing a confession to a crime. The reasons for this are obvious: 1) If forced confessions were admissible in criminal courts, everyone who is arrested would be at risk of being tortured; and 2) Forced confessions are very likely to be false confessions.

We know that some people within the CIA have claimed that torture produced the missing piece of information about the identity of a courier to Osama bin Laden, which eventually allowed a U.S. team to find and kill him. Others have argued that in fact that information was already known, which is the public position of the Senate Intelligence Committee on the matter. But in either case, is torturing someone to find out the location of a criminal, even a very bad criminal, justified?

The scenario presented in your second question is a version of what’s often called the “ticking time-bomb” problem. It usually involves a utilitarian argument that the unhappiness of the many outweighs that of the tortured individual. Other versions are consequentialist also, if not strictly utilitarian, positing for example, the imperative to torture one (guilty) criminal in order to find the location of one (innocent) kidnapped child. There are several difficulties with these hypothetical scenarios:

We wouldn’t know how to do it right. It is not possible to torture someone “on the spur of the moment.” Torture requires infrastructure and trained practitioners who keep their skills honed. Jack Bauer to the contrary, real life is not like 24. (And Bauer actually is pretty well-trained!)

The time-sensitive scenario is precisely the one in which someone who is concealing life-saving information is most likely to hold out; he knows exactly how long he has to resist.

We can’t have what Fritz Alhoff calls “epistemic certainty” that we have captured the right guy, that he actually knows what we want to know, that he’s right about what he thinks he knows, or that, as Henry Shue says, he won’t just “vomit and die,” instead of producing information.

These scenarios don’t happen in the real world. There is no information “one guy” could produce that would prevent a war. Wars don’t happen because one side or another doesn’t know some key piece of information. Wars have their own logic and momentum, and their causes are often opaque, even to those who fight them. (Look at all the arguments a century later about the causes of WW I.)

I’m not picking on the torture-one-guy-to-prevent-a-war scenario in order to avoid the larger question, which is, isn’t there some scenario in which time-senitive information that will save hundreds of thousands of lives can only be produced through torture? My answer is no, there isn’t. This is not how institutional state torture works. G.E.M. Anscombe described the problem with this kind of hypothetical argumentation beautifully in a 1958 article:

“Finally, the point of considering hypothetical situations, perhaps very improbable ones, seems to be to elicit from yourself or someone else a hypothetical decision to do something of a bad kind. I don’t doubt this has the effect of predisposing people–who will never get into the situations for which they have made hypothetical choices-‑to consent to similar bad actions, or to praise and flatter those who do them, so long as their crowd does so too, when the desperate circumstances imagined don’t hold at all.”

3:AM: Your discussion focuses on US policy but this isn’t just a US issue is it? How effective are your arguments when placed outside of western style systems of politics and law? I guess this is a question about whether there are many presuppositions to your position that can’t be universally granted or applied?

RG: This is a good question, and one that’s not easily answered. Of course, the same question could be posed to an advocate of Kantian deontology, or utilitarianism, or any other ethical system arising out of the western philosophical traditions.

In a sense, this is a question that can best be answered empirically, by engaging in dialogue with specific traditions outside of “western” systems of politics and law. Here I think it very much matters which ethical system we’re talking about. That is, my arguments might find many assumptions in common with some forms of buddhism (a way of life that privileges practice and virtue). It might be more difficult to find a shared starting place for a conversation with Korean animists. I don’t honestly know.

I can think of a couple of relevant attempts to forge a universal approach to human rights not based specifically in western ethical traditions. The first is the process by which the Universal Declaration of Human Rights was written shortly after the United Nations was founded in 1945. The framers intentionally strove not to base the declaration’s contents on any one ethical tradition, or in any one religious tradition. (Article 5, by the way, reads, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”) It is worth noting that in spite of the authors’ efforts, the Declaration is not without its critics, who see it as a fundamentally western document.

The second is the efforts of Amartya Sen and Martha Nussbaum to transcend the problem of cultural relativism by developing the concept of “capabilities theory” as a means of making comparisons about justice across cultures and societies. In Women and Development, Nussbaum suggests that human animals in general are born with certain specific capabilities, including such things as life, bodily health, bodily integrity, senses, imagination, and thought, emotions, practical reason, affiliation, and play. A society is a just one, to the extent that it makes it possible for all its members to develop these capacities that are present in the human species as a whole. What that development looks like will vary tremendously across cultures, of course. Whether members of all societies would accept their assumptions about the capabilities of the human person remains an open question.

MacIntyre would argue that his own virtue ethics represents a sharp and intentional break with the Enlightenment framework that constrains most contemporary ethical systems. In that sense, you might say that his ethics are as much “Mediterranean” or “Aegean” as “western.”

3:AM: There are of course rivals to the theories of virtue and ethics you put forward – why do you think your approach is superior to the rivals out there?

RG: I think that my approach to the ethical problem of institutionalized state torture is based on a more accurate representation of what torture is. If torture were simply a set of isolated actions, then consequentialist or deontological approaches might be adequate for judging each act. Torture is, in a sense, more than the sum of individual actions, each of which can be assessed de novo, weighed by an ethical calculus of costs and benefits, or through the mental testing of the effects of universalizing a maxim. Actions create habits. We become brave, as Aristotle says, by doing brave acts. And, in the case of allowing other people to be tortured as the price of an illusory guarantee of our own personal survival, we become cowards by doing cowardly ones.

I think that most of the time in real life, people act first and identify their reasons for acting later. If most of the time we act out of habit, shouldn’t those habits be good ones?

3:AM: And is there any reason for optimism in this depressing area – are there developments that suggest that the use of torture will diminish in the near future?

RG: Actually, I think there is some. For one thing, I think hope is one of those virtues we need to cultivate in ourselves!

But more specifically, while some disturbing polling data suggests people in this country are more supportive of torture today than they were at the height of the ‘war on terror,” I see two hopeful trends. The first is a growing recognition in the United States that solitary confinement creates severe mental suffering and is in fact a form of torture. The second is the momentum building in opposition to capital punishment.

3:AM: And for those of us at 3:AM wanting to get further into your philosophical world are there five books you could recommend to us?

RG: Hmm… let’s see…

Alasdair MacIntyre. After Virtue and Rational, Dependent Animals.

Elaine Scarry, The Body in Pain: The Making and Unmaking of the World

William Cavanaugh, Torture and Eucharist: Theology, Politics and the Body of Christ

Lawrence Wechsler, A Miracle, a Universe: Settling Accounts with Torturers

And if you want to have fun, try any of Terry Pratchett’s Discworld novels.


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First published in 3:AM Magazine: Friday, August 22nd, 2014.