It’s Not Torture, But If It Was It Would Still Be Ok

Dick Cheney was on Meet the Press yesterday, and it was pretty ugly. Conor Friedersdorf does a good job summarizing Mr. Cheney’s answers to certain questions, as well as the larger logic employed. Certainly the most scandalous answer given by the Vice President was when he said that he had “no problem” with the fact that nearly 25% of the detainees were innocent. He explicitly and unwavering used an “ends justify the means” argument to vindicate wrongful arrest and subsequent abuse to innocent people. This confirms everything I have been writing about the moral problems with the current defense of torture by America. But there’s more.

The one charge which Mr. Cheney did struggle with answering was that of rectal hyrdation Here is the transcript:

CHUCK TODD: Let me go through some of those techniques that were used, Majid Khan, was subjected to involuntary rectal feeding and rectal hydration. It included two bottles of Ensure, later in the same day Majid Khan’s lunch tray consisting of hummus, pasta, sauce, nuts and raisins was pureed and rectally infused.

DICK CHENEY: That wasn’t–

CHUCK TODD: Does that meet the definition of torture?

DICK CHENEY: –that does not meet the definition of what was used in the program as–

CHUCK TODD: I understand. But does that meet the definition of torture in your mind?

DICK CHENEY: –in my mind, I’ve told you what meets the definition of torture. It’s what 19 guys armed with airline tickets and box cutters did to 3,000 Americans on 9/11. What was done here apparently certainly was not one of the techniques that was approved. I believe it was done for medical reasons.

CHUCK TODD: I mean, medical community has said there is no medical–

DICK CHENEY: If you go and look, for example, at Jose Rodriguez book, and he was the guy running the program, he’s got a very clear description of how, in fact, the program operated. With respect to that I think the agency has answered it and its response to the committee report and I–

CHUCK TODD: –but you acknowledge this was over and above.

DICK CHENEY: –that was not something that was done as part of the interrogation program.

CHUCK TODD: But you won’t call it torture.

DICK CHENEY: It wasn’t torture in terms of it wasn’t part of the program.

Now a bit of dodging and weaving is to be expected in combative interviews, but Mr. Cheney could not have been caught-off guard by the question, and his choice of answer is telling. First, he seems to try to say that it wasn’t an interrogation technique, though he may also have been about to say it wasn’t one of the specified permissible techniques (John Brennan has admitted overreaches and even “abhorrent” practices). But rather than actually stopping to make this point, he chooses to instead go to what he believes is really persuasive, comparing what the US did to what the 9/11 terrorists did. This move is a textbook fallacy of distraction, but it is Mr. Cheney’s over-arching justification, as we will see below. But then he follows up by saying that the technique was actually a medical procedure, something that strains credibility even on the surface and which totally breaks down when judged by current medical standards.

This is interesting, though, because it suggests that Mr. Cheney is admitting that had rectal hydration been used as an interrogation technique, then it would have been inappropriate. He never actually says this, of course, and his larger argument contradicts it, but there’s a brief moment where he appears to concede the point. He gives a bit of a stutter-step: there might be one thing that would be too much.

Rectal hydration is not a standard medical procedure, and the medical community is nearly-universally condemning the practice in relation to the CIA. Physicians for Human Rights, a group which formerly investigated the Pinochet junta, writes this:

“Contrary to the CIA’s assertions, there is no clinical indication to use rectal rehydration and feeding over oral or intravenous administration of fluids and nutrients,” said Dr. Vincent Iacopino, PHR’s senior medical advisor. “This is a form of sexual assault masquerading as medical treatment. In the absence of medical necessity, it is clear that the only purpose behind this humiliating and invasive procedure is to inflict physical and mental pain.”

The Guardian has a helpful article on what the Senate report says about this, as well as a history of rectal hydration as a medical practice. In short, it has been considered inappropriate as a health measure for about a hundred years.

But as we said, Mr. Cheney has a larger argument which makes all discussion of medical necessity irrelevant. The argument is this: Whatever the US does against suspected terrorists is justified because 9/11 was a greater evil, and those terrorists who are still plotting against the US would do morally worse actions. This is why, as we mentioned above, even the detention and abuse of innocent men is justifiable.

Consider. Waterboarding was considered a war crime after World War II. Torture has been clearly defined and forbidden by a number of conventions and codes, including the U.S. criminal code which says:

(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

(C) the threat of imminent death; or

(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and

(3) “United States” means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.

Yet none of this really slows down the torture apologists. Instead they use legal positivism to show that these laws are not technically applicable to the War on Terror because that war is a state of exception. But then, crucially, we are told that it doesn’t matter anyway. The moral question which underlies everything is always answered by a sort of “two wrongs make a right” red herring. The evil of our enemies is all the justification we need.

But the reality of using that sort of argument is that it creates a blank check for any and all actions taken in response to 9/11. While there may be the occasional stuttering at an instance which either genuinely does prick their conscience, or which they believe is “too much” for the public to accept, there is actually not any scenario which would be morally unjustifiable to the torture apologists given their argument. On this point, Mr. Friedersdorf summarizes Mr. Cheney’s logic as follows:

Once 9/11 happened, Dick Cheney ceased to believe that the CIA should be subject to the U.S. Constitution, statutes passed by Congress, international treaties, or moral prohibitions against torture. Those standards would be cast aside. In their place, moral relativism would reign. Any action undertaken by the United States would be subject to this test: Is it morally equivalent to what Al Qaeda did on 9/11? Is it as bad as murdering roughly 3,000 innocent people? If not, then no one should criticize it, let alone investigate, charge and prosecute the CIA. Did a prisoner freeze to death? Were others anally raped? Well, what if they were?

If it cannot be compared with 9/11, if it is not morally equivalent, then it should not be verboten.

That is the moral standard Cheney is unabashedly invoking on national television. He doesn’t want the United States to honor norms against torture. He doesn’t want us to abide by the Ten Commandments, or to live up to the values in the Declaration of Independence, or to be restrained by the text of the Constitution. Instead, Cheney would have us take Al Qaeda as our moral and legal measuring stick. Did America torture dozens of innocents? So what. 9/11 was worse.

We could also quote the Vice President at this point, “I have no problem as long as we achieve our objective.”

John Yoo also wrote in defense of the CIA over the weekend. Not to be missed is this part:

But Americans are a practical people, nowhere more so than in war. In the Civil War, Gen. William T. Sherman marched through the South to destroy civilian support for the Confederacy. In World War II, U.S. bombs killed hundreds of thousands of civilians in Germany and Japan. President Truman used nuclear weapons to end that war. Obama has deployed drone strikes that have not only killed terrorists, but also hundreds of innocent civilians…

He does use a bit of a tu quoque at the end, interestingly suggesting that the Obama drone policy is worse than torture (which it might be), but his larger point is an overall justification. “Americans are a practical people.” Whatever it takes to win the war, even if that means Sherman’s March to the Sea, ought to be on the table. This is a consistent picture, and we can see how these men made their decisions.

Given the nature of the War on Terror, we are told, to be “morally serious” is to be willing to write blank checks “as long as we achieve our objective.” This is a form of total war, even if only in the exceptional state. And this is why “enhanced interrogation” is simultaneously torture and not-torture (remember, Charles Krauthammer is “not afraid” to call it such.). Why the word play? It’s more legal positivism, but of an apparently unnecessary sort. The only reason to not call the techniques “torture” is to avoid the possibility of violating certain treaties and conventions, but at the same time, just for good measure, the US also argues that those codes don’t apply. So the argument is that it’s not torture, but if it was, it would still be ok. This is the argument being made in public, in America.

The contradiction is more than a logical one. It is a moral contradiction. And it cannot be allowed to stand.