I’ve been corresponding with a reader who is a lieutenant in the New York City Police Department as well as a doctoral candidate at CUNY. Brandon del Pozo also holds an MPA from Harvard and an MA from John Jay. The following is a guest post by him concerning torture and combat:
The principal, recurring, line of argument against torture is that it is different from acts of harm and killing in combat and law enforcement in a way that makes the very framework of justification for these acts inadequate for justifying torture as well. This inadequacy is not meant to be one of degree; the argument is not that torture is too extreme a form of injuring and killing to be permitted. It is instead that torture is crucially different in a way that makes the conceptual extension of these justifications inappropriate in the first place. Given what torture is, justifications for how we act in war and self-defense cannot be invoked to do the work of describing the morality of torture. People who wish to talk about the torture must therefore do so without invoking justifications for combat injuring and killing, which are already thought to be arguments that define the outer limits of how we are permitted to treat other people. Unless a person can talk about the justification for torture in a different way that accurately accounts for its special nature, it must be placed beyond the pale.
This approach fails because it does not appreciate just what we seek to do when we make war against people. Henry Shue, and more recently David Sussman, describe at length the way torture violates the person in an extremely sinister way. They talk about the way torture makes a person feel, the vulnerabilities it exploits, and the way in which it turns the very substance of personhood against itself. It uses a person?s extension in the physical world to enslave her consciousness, devolving her personhood to a state where it is no more endowed with dignity and rational agency than the most primitive sentient being, all the while subjected to the most severe forms of distress, fear and agony that sentience permits. Sussman argues that ?through the combination of captivity, restraint, and pain, the physical and social bases of rational agency are actively turned against such agency itself… [a] perversion of the most basic human relations.? Making clear that in his view this cannot be justified by our present understanding of when and how we may cause harm, he concludes that ?whether such objections could ever be overcome by legitimate military or punitive interests is a question that waits upon more comprehensive understandings of the morality of punishment, warfare, and self-defense.?
The description of torture above is accurate. The problem, however, is that in both the case of Shue and Sussman it is simply presumed that this description alone, when done well, is enough to make the case that torture is different from combat not by degree but by nature. In order to make the best argument possible, it would be necessary to do at least two things. The first would be to accurately describe what torture is. The second would be to affirmatively show that combat is not the same in nature as what has been described as torture, and that it does not differ only by degree. Prior work has done a good job of the former, but seems to have ignored the latter, as if describing torture has made the prima facie case that it is different from combat by its nature.