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From the July/August, 2012
issue of Touchstone

 

Terrorism and Its Civilized Discontents by Alexander F. C. Webster

Terrorism & Its Civilized Discontents

An Eastern Orthodox Ethical Reflection on Torture as Counter-Terrorism

by Alexander F. C. Webster

In the eleventh episode of the fifth season of the wildly popular Fox television series 24, one particular scene dramatically depicts one of the most acute moral dilemmas entailed in a robust counter-terrorism policy.

Jack Bauer, a U.S. counter-terrorism agent played by Kiefer Sutherland, is waiting in the home of his former mentor Christopher Henderson (played by Peter Weller), while terrorists are on the verge of detonating canisters of deadly nerve gas elsewhere in the city. When Henderson arrives home at 5:53 p.m., Jack apprehends him and his wife Miriam (played by JoBeth Williams), tying them to separate chairs next to one another. Jack is convinced that his former mentor is involved in the terrorist plot and at least knows the whereabouts of the canisters, but Miriam is incredulous.

Then Jack opens Henderson's briefcase, which is full of money. Miriam is shocked and questions whether her husband has been lying to her. After protesting to Miriam that he was trying to protect her, Henderson insists that he is serving his country, does not know anything about the nerve gas, and taunts Jack to shoot him.

Jack suddenly shoots Miriam in the leg, just above the knee, and threatens that the next bullet will leave her in a wheelchair for life. To Miriam's horror, Henderson still remains silent about the canisters: "Forgive me, Miriam, I can't." Jack counters that Henderson doesn't care about anyone and immediately calls CTU (Counter-Terrorism Unit) headquarters to summon an ambulance for Miriam and to set up an interrogation room for Henderson, complete with the (fictional) pain-inducing "truth drug" hyoscine-pentothal.

Though TV fiction, that shocking scene captures in stark moral relief the quintessential "ticking time-bomb" scenario that has kept many of us awake at night since the attacks of September 11, 2001. The fictional scenario entails the use of extreme, immoral means (psychological abuse and physical torture of an innocent noncombatant) to attain a morally good end (prevention of a devastating terrorist atrocity) under excruciating time constraints with very limited options.

That Jack Bauer's method fails—Henderson still refuses to "spill the beans"—should not detract from the power of the scene as a veritable allegory for our time. Too many otherwise civilized, highly moral or ethical citizens of the Western world are tempted to go along with the real Jack Bauers and resort to his kind of morally dubious violence with the expectation that it is both effective and worth the sacrifice of their moral sense.

Walzer's Consequentialist Calculus

To introduce the depth of the ethical crisis as I see it, and before presenting what I consider a much better alternative from the Eastern Orthodox Christian moral tradition and a "test case," I wish to cite the influential arguments of three disparate but perhaps equally disappointing experts in the field: two eminent scholars and one prominent religious leader, the latter, regrettably, from my own religious community.

First, we have Michael Walzer's now classic argument, presented in his book Just and Unjust Wars, for what he terms the "supreme emergency"—the ultimate "ticking time-bomb" scenario, as it were.

When military defeat literally threatens the very existence of a nation's people, when the imminent danger is "of an unusual and horrifying kind" and "a threat to human values so radical" as that posed by the Nazism of the Third Reich on the march, Walzer concludes that "one might well be required to override the rights of innocent people and shatter the war convention" by bombing cities, for example, and knowingly and willingly killing the innocent to avoid the deaths of an unknown but probably much greater number of civilians and soldiers.

To be sure, Walzer allows that "the destruction of the innocent, whatever its purposes, is a kind of blasphemy against our deepest moral commitments. (This is true even in a supreme emergency, when we cannot do anything else)."1 But his angst and anguish -notwithstanding, what he advocates as a last resort is, at base, merely a consequentialist calculus of greater and lesser evils. -Although it echoes some of the better ethical justifications for the obliteration-bombing campaigns by the United States and Great Britain during World War II, Walzer's argument still forfeits the virtue of justice on the part of justifiable defenders against an unjust attack.

O'Brien's Hedge on Noncombatant Immunity

The second example comes from William V. O'Brien, in his great work, The Conduct of Just and Limited War. O'Brien, the late Roman Catholic professor at Georgetown University, hedges on the jus in bello principle of "discrimination"—or noncombatant immunity from direct attack—that Professor Paul Ramsey of Princeton, perhaps the dean of all justifiable-war theologians in the last century, held to be immutable, mandatory, and virtually absolute in all foreseeable scenarios.2

O'Brien eschews such "an absolute limitation on belligerent conduct," since, as he contends, the Church never seriously advanced it. He adds, "I do not distinguish an absolute, moral, just-war principle of discrimination from a more flexible and variable international-law principle of discrimination." Insistence on discrimination as inviolate, according to O'Brien, "leads either to a finding that all war is immoral and the demise of the just-war doctrine or to tortured efforts to reconcile the irreconcilable" through the "unconvincing casuistry" of the use of the medieval principle of "double effect." What's needed instead, he argues, is an attempt "to balance the need to protect noncombatants with the need to recognize the legitimate military necessities of modern forms of warfare."3

Note the date of that argument for what I would call O'Brien's effective abandonment and premature surrender of the jus in bello: 1981, two decades before the 9/11 atrocities awakened the United States to the clear and present danger posed within its shores by international Islamic terrorism.

Alexei's Acceptance of "All Possible Means"

And third, we come to the late Patriarch Alexei II of Moscow, senior bishop of the Russian Orthodox Church, who sometimes betrayed his own Orthodox moral tradition in his vociferous public reaction to the

egregious terrorist threats to his flock and his nation.

It was one thing for a prominent religious leader like Patriarch Alexei to justify, for example, the targeted killing of Shamil Basayev, the "Chechen Bin Laden," by Russian special operations forces on July 9, 2006.4 Basayev had claimed responsibility in September 2004 for the hostage-taking at school number 1 in Beslan, North Ossetia, which resulted in the massacre of 330 civilians, including 186 children.

But it was quite another matter for him, on September 13, 1999, in the wake of terrorist atrocities in Moscow and Bujnaksk, to appeal to the Russian government and law enforcement agencies "to protect our compatriots from terrorists by all possible means" (italics added).5 Or to publish, in concert with his senior Jewish, Muslim, and Buddhist counterparts on the Interreligious Council in Russia, a post-Beslan "message" on September 22, 2004, which included the following stunning proclamation:

There must be no fear of dispensing justice to terrorists and their accomplices, and if need be they should be annihilated, whoever and wherever they may be, whatever slogans they may use as a cover. We insist that they are beyond any religion, serving the [sic] Satan and dreaming of plunging humanity into an abyss of despair and of taking over the world.6

Whatever we may think about Satan and his minions, what strikes me about this passage is the use of the term "annihilated"—hardly the measured response of influential religious leaders, and more redolent of the holy war/crusade/jihad approach to defense than of the venerable justifiable-war tradition.

These three examples illustrate how, in the present era, the temptation of persons of genuine good will to abandon civilized morality is perhaps greater than ever.

Tenuous Virtuous Endeavors

To counter this growing trend of taking "ethical shortcuts" in the employment of violence to prevent or resist terrorism, I turn now to the practical wisdom of the moral tradition developed over two millennia by the Eastern Orthodox Church. What, then, are the chief components of the Eastern Orthodox justifiable-war tradition?

We can begin with an anonymous treatise on military strategy dating from the reign of Emperor Justinian the Great in the mid-sixth century a.d. This treatise readily avers that "war is a great evil and the worst of all evils," before providing in great detail a Byzantine way of conducting war effectively but minimally.7

More recently, in Aleksandr Solzhenitsyn's novel November 1916 (volume 2 of the historical epic The Red Wheel), a Russian Orthodox military chaplain, Fr. Severyan, says to the conscience-stricken lieutenant Sanya Lazhenitisyn:

War is not the vilest form of evil, not the most evil of evils. An unjust trial, for instance, that scalds the outraged heart, is viler. Or murder for gain, when the solitary murderer fully understands the implications of what he means to do and all that the victim will suffer at the moment of the crime. Or the ordeal at the hands of a torturer, when you can neither cry out nor fight back nor attempt to defend yourself. Or treachery on the part of someone you trusted. Or mistreatment of widows and orphans. All these things are spiritually dirtier and more terrible than war. . . . War divides, yes—but it also creates comradely union, it calls on us to sacrifice ourselves—and how readily men answer the call! When you go to war, you risk being killed yourself. Say what you like, war is not the greatest of evils."8

Not quite a rousing defense of justifiable war, is it? He does, though, back away from the absolutist view of the ancient Byzantine strategist (whom Orthodox pacifists, understandably, love to quote).

But even Solzhenitsyn did not go far enough in the view he has the good chaplain present. A more authentic Orthodox approach to the morality of war is to allow for some—probably very few, but still some—wars not as evils (whether unmitigated or barely tolerable, necessary or lesser), but rather as tenuous virtuous endeavors—in short, as "lesser goods" than the otherwise salutary alternatives of continued negotiation and diplomacy, or even of complete surrender to preserve the populace from annihilation.

A Teleology of Justice

What a thorough examination of all the sources of Orthodox moral tradition—from the Scriptures and church fathers down to modern theologians and literary figures—reveals is a moral approach to the vexing issues of war and peace that I have dubbed a "teleology of justice."9 This teleology entails a proportionality of morally good—or at least morally neutral—means to morally good ends (that is, purposes, intentions, goals, or teloi in Greek). The internal debate within the Orthodox faith community, as in other religious and scholarly communities, concerns the issue of means. Setting aside the views of absolute pacifists, for whom violence against human beings is precluded a priori, we may sharpen the question further to whether the resort to war for a good end is itself an evil or whether it may be a good means to that end.

The Apostle John provides a simple but clear moral prescription when he writes, "Beloved, do not imitate evil but imitate good" (3 John 11). The Apostle Paul offers us an important parallel in Romans 12:17: "Repay no one evil for evil, but take thought for what is noble in the sight of all." A few verses later in the same epistle he commands, "Do not be overcome by evil, but overcome evil with good" (v. 21).

But the defining moment of St. Paul's own teleological approach to morality occurs earlier in that epistle. In Romans 3:8 he asks rhetorically, "And why not do evil that good may come?—as some people slanderously charge us with saying. Their condemnation is just." Oxford philosopher John Finnis has dubbed that biblical rejection of evil means to good ends the "Pauline -principle."10

Further, a sweep of the literature of the ancient church fathers would fail to detect even one writer who ever gave moral permission to commit an unmistakably evil act, lesser or otherwise. An intrinsic evil may be defined precisely as an unholy, unrighteous, or sinful offense against God, another human being, or oneself, which, irrespective of the particular circumstances, intention, or anticipated consequences, may not be freely and knowingly chosen.

In the medieval Christian West, St. Thomas Aquinas crystallized that fundamental biblical and patristic insight in his compelling argument in the Summa Theologiae that the object of one's moral decision (that is, the action chosen as the means to one's end) must itself be morally good, or at least not intrinsically evil.11

How, then, may any Christian countenance a course of action—such as war—that he freely and knowingly concedes is "evil"—even if he allows that it is a lesser enormity than permitting, through inaction, an aggressor to subvert justice and wreak havoc among his people? If all war or any particular war is deemed an evil, a Christian nation or people may not elect to go to war, even as a last resort.

But the logical contrapositive also holds. If a particular war can be justified morally at the outset, it must be a good act, or at least a morally neutral act.

The Robber & the Surgeon

The key to the problem is how to frame the moral decision properly—specifically, how to define accurately and correctly both the means and the end(s) in question. To the familiar refrain that "the ends do not justify the means," we might offer the flippant rejoinder, "If the ends do not justify the means, at least in part, then what else does?"

A better proposition would be that the ends alone do not justify the means. The act of cutting human flesh, for example, may be good or evil, depending on the identity of the agent (the person cutting), his intention (ends), and, above all, how he goes about his business (means). An armed robber assaulting his victim with a filthy switchblade obviously commits an intrinsically evil act. But a skilled cardiac surgeon operating on a patient in extremis may be engaged in a good act.

To be sure, the slicing of skin and muscle tissue and the possible cracking of ribs to get at the heart might appear to be cruel and violent. But that may be the only way the surgeon can perform a life-saving operation. Furthermore, the good surgeon cuts and breaks only the bare minimum of human flesh and bones, and he uses sterilized instruments in an immaculate operating room, thereby safeguarding the life of the patient and treating his body with respect and the whole person with reverence. In such a case, the surgical procedure is an act of mercy and goodness.

If the armed robber kills his victim, either intentionally or through carelessness, he becomes a murderer. But if the surgeon should "lose" his patient on the operating table (assuming there is no act of negligence), who in his right mind would consider him a murderer?

Four Vital Conditions

By analogy, in the admittedly much rarer cases when war may be justified, the specific acts of harming, wounding, or killing enemy soldiers—and non-uniformed terrorists in the present era—must similarly be evaluated in the context of a teleology of justice. The Orthodox version of what is commonly termed the jus ad bellum ("right to go to war") in Western parlance entails four conditions that focus, in the aggregate, on the defense of the Church or homeland against violent aggression. Thus, Orthodox Christian soldiers and other military personnel may, in good conscience, engage in warfare as a lesser good when:

1. They are duly authorized by a legitimate political authority (such as internationally recognized governments that do not pose an immediate threat to the Orthodox community or to any other religious or secular community);

2. They act to defend and protect their Church or homeland from an unjust aggressor such as an invading force (whether a conventional military transgression of internationally recognized borders or lethal violence in the form of international terrorism);

3. They utilize minimal force directly proportionate to the clearly intended goal of restoring the status quo ante (rather than for purposes of conquest or other kinds of unwarranted aggrandizement); and

4. Their military activity targets only the unjust aggressor (instead of noncombatants) and is exercised with a minimum of the requisite destruction and lethality.

Such limited, proportionate warfare in pursuit of just ends becomes a function of justice. Since justice is one of the four "cardinal" virtues introduced by Plato, acknowledged in Wisdom 8:7 in the Septuagint version of the Old Testament (authoritative for Orthodox Christianity), and amplified through the entire patristic tradition, justice in war—both as an end and as the means to that end—may also be virtuous and, hence, morally good.

This is the ineluctable conclusion that I draw from the scores of texts and icons that I have adduced in my co-authored book, The Virtue of War. Whenever the Holy Scriptures, church fathers, church canons, and other texts speak of military activity in terms of right or righteousness, nobility, valor, or heroism, their individual and collective impact is the same: a justification of such activity as a moral good and of the soldiers who carry it out as virtuous warriors.

The Absurdity of the "Lesser Evil" Approach

The Orthodox Christian insistence on a highly constrained use of armed might—even more constrained than what is called for by "just war theory" as it is generally enunciated by Western Christians today—offers a stark, sobering contrast to the ideology of international Islamic terrorism. The latter promotes the conscious, deliberate, and intentional targeting of innocent noncombatants through a maximum of vicious destructiveness as a matter of preference, so as to inspire fear and terror in the masses and pave the way for an eventual Islamic takeover. Those extremists exult in evil means to supposedly "good" but obviously evil ends. The stakes for Western civilization could not be higher.

The fictional Jack Bauer's calculated shooting of an innocent woman in the scene from 24 provides a reductio ad absurdum of the embrace of the "lesser evil" or "necessary evil" approach to the moral problem of war in general and the moral challenges of counter-terrorism more specifically. In the final episode of season 7 of 24, Jack advises a conscience-stricken FBI agent to "try to make choices you can live with." To which I would reply, "It's not about you or me, Jack, but about what others 'can live with'—or whether they can live at all!" Jack Bauer's kind of realistic, expedient consequentialism has not been nicknamed the "dirty hands" method for nothing. Ironically, the "lesser evil" approach often opens a Pandora's box of rationalizations for all manner of evil in war and other situations posing ethical dilemmas.

If a decision to resort to war is an acceptable evil, then why not also embrace other morally unsavory -options as acceptable evils? What moral restraints may we impose on the use of military means if the whole business is a carnival of evils in which we may, nonetheless, have to participate?

This is not merely a matter of semantics. Countless lives and the moral health of civilizations—East and West—hang in the balance. When we justify evil in any war, we take a dubious path that could lead to the obliteration bombing of civilian populations, to the mistreatment and torture of prisoners and detainees, to the use of nefarious interrogation techniques such as waterboarding, to assassinations as routine measures, and even, perhaps, to various forms of mass terrorism itself. We then become vicious, not virtuous, and practically indistinguishable from the barbarous enemy we are sworn to resist and eventually defeat. The "lesser evil" approach to war and counter-terrorism makes us "lesser" human beings.

Being Clear About Torture

Having already tipped my hand, as it were, I now wish to apply the Orthodox Christian moral approach to war to a controversial counter-terrorist practice as a "hard case." If the use of torture in such "ticking time-bomb" scenarios as exemplified in the scene from 24 fails to pass moral muster, then the torture of even admittedly evil international terrorists such as Al-Qaeda operatives in less urgent circumstances would prove a fortiori immoral and thus unacceptable as a counter-terrorist practice.

Since "torture" is a rather flexible, relative, even -expansive concept in popular usage, and since, as torture expert Darius Rejali has observed, "some have come to regard any violation of human dignity as torture,"12 it is essential to define what is and is not torture according to the international community of nations, including the United States. According to article 1 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), which the UN General Assembly adopted on December 10, 1984 (and which the U.S. Senate ratified on October 21, 1994), "torture" denotes

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.13

Rejali provides a more concise definition: "Torture is the systematic infliction of physical torment on detained individuals by state officials for police purposes, for confession, information, or intimidation." He also includes "the activity of some nonstate actors."14

Note Rejali's caveat about physical torment. A serious problem with UNCAT is its demand in article 16 that signatory nations also "undertake to prevent . . . other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1." Thus, UNCAT would (without, however, equating the two) lump together with torture certain "degrading" actions, such as those committed by U.S. Army personnel at Abu Ghraib prison near Baghdad, when they compelled nude male detainees to wear women's panties on their heads. Similarly, the "acoustic bombardment" of prisoners, particularly with country and western, heavy metal, or rap music, would be included under the rubric of torture.

At Least Straddling the Fence

And yet many of the so-called enhanced interrogation techniques that the U.S. military and/or Central Intelligence Agency (CIA) have employed of late appear at least to straddle the torture fence. Certainly all decent Americans can reject electric shocks and sodomizing as unmistakably physically painful and hence forms of torture. Those morally abhorrent acts are exceptional "abuses" neither approved nor practiced widely by U.S. government agents. According to a 2004 report by CIA inspector general John L. Helgerson (released in 2009), the CIA's practices in overseas prisons have also included: repeatedly choking detainees, threatening to kill a detainee's children, "suggestions about sexually assaulting members of a detainee's family, staging mock executions, intimidation with a handgun and power drill, and blowing cigar and cigarette smoke into prisoners' faces to make them vomit."

What Professor Alfred W. McCoy of the University of Wisconsin has termed "no touch" torture measures, such as sleep deprivation, induced hypothermia, protracted isolation from other human beings, and self-inflicted pain, though "seemingly less brutal than physical methods," may leave "deep psychological scars on both victims and interrogators."15

Also among "the sometimes approved measures," Protestant theologian David Gushee enumerates "prolonged standing, forced nakedness, withdrawal of food and water, sensory deprivation, hooding (often with intentionally foul-smelling hoods), prolonged interrogations, assaults with extremely loud noise, use of threatening dogs, poking or pushing, sleep adjustment/deprivation, and waterboarding. . . ."16

Being Clear About Waterboarding

Waterboarding warrants special attention as the interrogation technique most debated since the presidential campaign of 2008. According to a Justice Department interrogation memo dated May 30, 2005, which the Obama administration ordered released to the public in April 2009, CIA interrogators used the technique at least 83 times against suspected terrorist Abu Zubaydah in August 2002, and 183 times the following March against Khalid Shaikh Mohammed, the confessed planner of the 9/11 atrocity.

The extreme frequency of the application in each case certainly raises the question of the effectiveness of the technique. And the issue may be moot, since the CIA reportedly abandoned the practice in 2003. But the temptation to resort to it "when all else fails" may revive it under dire circumstances, so it is essential to ask: What, precisely, does waterboarding entail?

Although some proponents may prefer to label the technique as "psychological torture," the practice dates back centuries and is, by any reasonable observer's reckoning, a physical technique that evokes a palpable sensation of drowning. Here's a concise description provided by the New York Times:

The subject is strapped to an inclined board, immobilized with his head positioned lower than his feet. In some cases, a piece of cloth or cellophane is placed over the subjects [sic] face and water is repeatedly poured over it, triggering a gag reflex and choking the subject. In other cases, the subject's head is submerged under water or his mouth is forced open and water is poured down his throat.17

The same Times article reports on the testimony given by Malcolm Wrightson Nance, a former U.S. Navy trainer in prisoner-of-war and terrorist hostage survival, before a U.S. House subcommittee in November 2007. Mr. Nance, who had personal experience with the technique both as a recipient and an administrator, "said the experience was slow-motion suffocation with water overpowering your gag reflex. Soon, he said, the throat opens and allows pint after pint of water to involuntarily fill your lungs. Unless the subject is allowed to expel the water, the result would be death by suffocation."

Condoners & Critics

Despite the full gravity, obvious abusiveness, and potential lethality of waterboarding, that technique—and others like it—is defended by many as a licit method of interrogation in extremis. For example, a Pew Research Center survey, conducted in April 2009, asked 742 American adults the following: "Do you think the use of torture against suspected terrorists in order to gain important information can often be justified, sometimes be justified, rarely be justified, or never be justified?" Fifteen percent of the respondents said it is often justified, 34 percent said sometimes, 22 percent responded rarely, and 25 percent said never justified. More specifically, "white evangelical Protestants" raised the ante to 18 percent often and 44 percent sometimes justified, with "white non-Hispanic Catholics" not far behind at 19 percent and 32 percent, respectively.18

Thus, if the Pew respondents can be considered representative of the American public, about half of the population thinks the use of torture to gain information from suspected terrorists is often or sometimes justified. Note, moreover, that Pew's phrasing of the question referred simply to "important" information, without hinting at a more acute "ticking time-bomb" scenario.

Not so Charles Krauthammer. In an op-ed column published in the Washington Post on May 1, 2009, the neo-conservative pundit argues that torture is "an impermissible evil" except in "ticking time bomb" scenarios when "an innocent's life is at stake" or when "the extraction of information from a high-value enemy in possession of high-value information [is] likely to save lives." In such extreme circumstances, Krauthammer avers, "you do what you have to do. And that includes waterboarding."19

But there are staunch moral critics of waterboarding and other forms of torture as well. They range from President Obama to a variety of religious leaders, including prominent Orthodox Christian bishops in America.

One of President Obama's first actions upon taking office in January 2009 was to issue an executive order requiring that

individuals detained in any armed conflict . . . shall in all circumstances be treated humanely and shall not be subjected to violence to life and person (including murder of all kinds, mutilation, cruel treatment, and torture), nor to outrages upon personal dignity (including humiliating and degrading treatment), whenever such individuals are in the custody . . . of the United States.20

An Excessive Pendulum Swing?

Although the administration distinguishes torture from other forms of personal humiliation and degradation, the prohibition of the latter in the gathering of vital intelligence might raise the moral bar too high. It is one thing to reject torture as an immoral means to ostensibly good ends, but it may be quite another to lump more borderline practices (such as playing loud music or compelling detainees to don women's panties) in the same categorical prohibition.

Another alarming signal of a possibly excessive pendulum swing is the Obama administration's reclassification of detainees suspected of terrorism as criminals rather than unlawful combatants not-in-uniform, who supposedly deserve certain rights of jurisprudence such as trials in civilian courts in the United States and perhaps even "Miranda" warnings at the time of capture.

A similar blurring of potentially important differences mars the "Torture Is a Moral Issue" declaration of the National Religious Campaign Against Torture (NRCAT). Thirty-one national denominational and faith group leaders—Protestant, Roman Catholic, Eastern Orthodox, Jewish, Muslim, and Sikh—signed the NRCAT statement, including five bishops of various Orthodox jurisdictions in the United States. The brief, two-paragraph statement reads as follows:

Torture violates the basic dignity of the human person that all religions, in their highest ideals, hold dear. It degrades everyone involved—policy-makers, perpetrators and victims. It contradicts our nation's most cherished ideals. Any policies that permit torture and inhumane treatment are shocking and morally intolerable.

Nothing less is at stake in the torture abuse crisis than the soul of our nation. What does it signify if torture is condemned in word but allowed in deed? Let America abolish torture now—without exceptions.

Nothing in these paragraphs would appear, prima facie, objectionable. However, torture and "inhumane treatment" are hardly equivalent, morally or otherwise. The Oxford English Dictionary defines "inhumane" as "destitute of compassion for misery or suffering in men or animals"—that is, a sin of omission and not necessarily commission. That is a distinction with a difference. Physical torture (leaving aside the psychological variety) is empirically measurable by objective standards, but an inhumane disregard of human suffering can only be inferred from a person's inaction.

The NRCAT reveals a more sweeping agenda, akin to the Obama administration's, in one of its stated goals: "Bring about changes in U.S. policy to prohibit—without exception—all U.S. sponsored torture and cruel, inhuman and degrading treatment of detainees."21 And so we revisit the ludicrous prospect of having to consider detainees being compelled to wear women's panties on their heads as virtually equivalent to victims of "waterboarding" or other torture techniques.

A Vital Contrast Between Warfare & Torture

Dr. Keith Pavlischek, a senior fellow at the Ethics and Public Policy Center in Washington, D.C., puts a necessary and helpful brake on the pendulum swing toward excessive deference to detainees' "rights" in his critique of "An Evangelical Declaration Against Torture":

International terrorists deserve to be treated justly. They do not deserve to be treated either as lawful combatants with the full rights due to honorable prisoners of war, or as ordinary criminals, with the attendant due process rights. They are not ordinary criminals; rather they are part of a global political-religious-ideological insurgency that employs terror as one means toward a well-articulated political end. However much we may quibble over the precise distinctions between what we do owe unlawful combatants by way of treatment or due process after capture, in distinction from that which we owe lawful combatants after capture, justice requires us to treat them . . . as unlawful enemy combatants.22

Another Evangelical Protestant theologian, Dr. George Hunsinger, provides a useful complement from the more left-leaning end of the spectrum. A professor at Princeton Theological Seminary and founder of NRCAT, Hunsinger argues in the book Torture Is a Moral Issue, which he edited, that torture as a practice is unlike killing in war.

Thus, both Pavlischek and Hunsinger would seem to concur that what we recognize as war—at least through the international lens of the Geneva Conventions—has little or nothing to do with international terrorists: Pavlischek eschews the growing tendency among many on the left to regard terrorist detainees as ordinary criminals instead of unique war criminals, while Hunsinger categorically rejects torture as "uniquely abhorrent" but not military action.

Hunsinger writes that, unlike conventional warfare, torture entails cowardly, no-risk, undisciplined physical abuse and the possible killing of defenseless prisoners. The torturer, he writes, unstrained by "certain cherished values" (I would say universal virtues) has unchecked, almost absolute power over "a victim who is totally helpless" and "lies completely exposed." Whereas the justifiable conduct of war allows for only a minimum of necessary force applied discriminately, torture is "based on extreme cruelty and humiliation" and "is less like combat and more like mutilation or rape."

Similarly, torture distorts beyond recognition the traditional Western jus in bello respect for life, epitomized in the twin principles of (1) proportionality of military means to political ends, and (2) noncombatant immunity from direct attack. It mutates them into a systematic dehumanization of the victim, a violation of the person's body, a terrorizing of the mind, and a destruction of the will. In short, Hunsinger concludes at once powerfully and eloquently:

In the torture chamber there is, comparatively speaking, no reciprocity of risks, no possibility of honor for the torturer, no self-defense for the victim, no meaningful constraints upon cruelty, no preservation of the values supposedly being defended, and no minimal respect for the inalienable personhood of the victim.23

Applying the "Pauline Principle"

Hunsinger's brief against torture is compelling, because he grounds it firmly in the Western jus in bello tradition. A few additional insights from the distinctive Orthodox Christian moral tradition of justifiable war and some concluding reflections should punctuate the moral argument.

If torture is an evil action—and the description of waterboarding in particular and the discussion of the purpose, methodology, and effects of torture in general should dispel any doubts to the contrary—then the "Pauline principle" enshrined in Romans 3:8 precludes any resort to torture as an intrinsic evil. Although other -theologians, moral philosophers, or political philosophers may fudge that principle, or condone torture and other violations of the jus in bello principle of noncombatant immunity from direct attack in "ticking time-bomb" scenarios, the full force of the Orthodox moral tradition abides no such violations.

A "lesser evil" teleology, even in extremis, is never a "teleology of justice." In fact, a more appropriate analogy, as mentioned above, would be to the ideology of international Islamic terrorism. In light of Hunsinger's insightful contrast of the jus in bello to the use of torture, we ought to view the latter as the conscious and intentional subjection of disarmed detainees suspected of terrorist involvement or of innocent third parties (such as Henderson's wife in the 24 episode) to a maximal use of inherently disproportionate, vicious force as an expedient means of inspiring fear and terror in them, weakening their resolve, and so getting them to disclose information. Whatever the good ends, the means (torture) are extreme, unjust, uncivilized, abhorrent, and evil, and thus impermissible.

The Better Way

The 24 episode that introduced this essay spotlights Jack Bauer's violent abuse of a suspected terrorist collaborator's innocent wife. Cases such as that one are obviously simpler to evaluate. Civilized folks tend to resist the torture or direct killing of innocent third parties even in "ticking time-bomb" scenarios.

The contrapositive of John Finnis's "Pauline principle" is what we may dub the "Caiaphas principle," inspired by a shocking statement quoted in the Gospel of St. John. Caiaphas, the high priest in Jerusalem when Jesus was tried and eventually crucified, advises the Sanhedrin "that it is expedient for you that one man should die for the people, and that the whole nation not perish" (John 11:50). That the "one man" was Jesus Christ, whose innocence of the trumped-up political charge of sedition against Caesar the high priest himself certainly knew, only magnifies the enormity of the sheer expedience that Caiaphas favors. Simply substitute the fictional Miriam Henderson or any real-life innocent noncombatant for Jesus in Caiaphas's calculus and our intuitive outrage should, I hope, follow.

(The final scene in director Stanley Kramer's great 1961 feature film, Judgment at Nuremberg, offers a similar insight. In his prison cell after his conviction, the self-confessed, repentant Nazi judge Ernst Janning [played by Burt Lancaster] protests almost imploringly to U.S. Judge Dan Hayward [Spencer Tracy], "I never knew it would come to that." Judge Hayward responds chillingly, "It came to that the first time you sentenced a man you knew to be innocent.")

The cases that may give us pause involve detainees who are themselves suspected of having committed or facilitated acts of terrorism, or who have invaluable knowledge of such acts, especially those planned for the immediate future. The Orthodox Christian "teleology of justice" applies even to them, our personal disgust and temptations to the contrary notwithstanding. There are always other, perhaps not as "efficient," but certainly moral means to extract the vital intelligence from such detainees.

Despite the best efforts of vicious terrorists to defy and deface within themselves the image and likeness of the God who created them, the divine stamp remains as long as they breathe and have a chance to repent of their evil. In the final analysis, it is better for us who are civilized not to succumb to the temptation to yield to our discontent and abandon our own moral principles. 

Endnotes
1. Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations, 4th ed. (Basic Books, 1977 [2006]), pp. 253, 259, 260.
2. See Paul Ramsey, War and the Christian Conscience: How Shall Modern War Be Conducted Justly? (Duke Univ. Press, 1961), pp. 189, 191, 170.
3. William V. O'Brien, The Conduct of Just and Limited War (Praeger Pub., 1981), pp. 45, 46.
4. "Moscow Patriarchate Justifies Killing of Terrorist Basayev," -AsiaNews.it (Nov. 7, 2006).
5. "Statement of His Holiness Patriarch Alexy II on the Acts of Terrorism in Moscow" (Sept. 13, 1999): www.mospat.ru/archive/ne909131.htm.
6. "We Must Be United Today as Never Before: Message from the Interreligious Council in Russia" (Sept. 22, 2004): www.mospat.ru/archive/26483.htm.
7. George T. Dennis (ed.), Three Byzantine Military Treatises (Corpus Fontium Historiae Byzantinae), no. 25 (Dumbarton Oaks Texts, no. 9, 1985), p. 21.
8. Aleksandr Solzhenitsyn, November 1916: The Red Wheel/Knot II, transl. by H. T. Willetts (Farrar, Straus, and Giroux, 1999), pp. 53, 54.
9. What follows is adapted from my fifth chapter ("Orthodox Justifiable War and Its Critics") in Webster and Cole, The Virtue of War (Regina Orthodox Press, 2007), pp. 106–109, 121.
10. John Finnis, Fundamentals of Ethics (Georgetown Univ. Press, 1983), p. 109.
11. See section 1a–2ae.6–17.
12. Darius Rejali, Torture and Democracy (Princeton Univ. Press, 2007), p. 38.
13. Text online at: www2.ohchr.org/english/law/cat.htm.
14. Rejali, p. 35.
15. Alfred W. McCoy, A Question of Torture: CIA Interrogation from the Cold War to the War on Terror (Metropolitan Books, 2006), pp. 8, 9, 101.
16. David P. Gushee, "Six Reasons Why Torture Is Always Wrong," in George Hunsinger (ed.), Torture Is a Moral Issue: Christians, Jews, -Muslims,
and People of Conscience Speak Out
(Eerdmans, 2008), p. 77.
17. "Waterboarding," New York Times reference topics (May 5, 2011): http://topics.nytimes.com/top/reference/timestopics/subjects/t/
torture/waterboarding/index.html?inline=nyt-classifier.
18. "The Religious Dimensions of the Torture Debate," The Pew Forum on Religion and Public Life, (April 29, 2009 [updated May 7, 2009]): http://pewforum.org/docs/?DocID=156.
19. Charles Krauthammer, "The Use of Torture and What Nancy Pelosi Knew," The Washington Post (May 1, 2009): http://www.washingtonpost.com/wp-dyn/content/article/2009/04/30/AR2009043003108.html.
20. Text online at: www.presidency.ucsb.edu/ws/index.php?pid=85669.
21. See: www.neympeace.org/torture-is-a-moral-issue.
22. Keith Pavlischek, "Human Rights in an Age of Terror: An -Evangelical Critique of An Evangelical Declaration Against Terror," Books & Culture: A Christian Review (Dec. 3, 2008): www.-christianitytoday.com/bc/features/webexclusives/ept24a.html?start=12.
23. Hunsinger, "Torture Is the Ticking Time Bomb: Why the Necessity Defense Fails," in Torture Is a Moral Issue, op. cit., p. 62.

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