Rethinking the Morality of Torture

As I write the draft of this piece (17 December), the Washington Post today is chock full of torture articles and letters to the editor on its opinion pages.  Sadly, they are overwhelmingly debating whether this act or that act is, or is not, "torture".  Semantics.  We're wallowing in semantics.

The left typically has an issue with the concept of morality.  For some reason it seems not to want to allow us to decide that anything whatsoever is actually right or wrong, as if it might, I don't know, validate the Judeo-Christian ethic or something.  One day racism is wrong and terrible; the next day it's OK as long as it's practiced by Al Sharpton, that sort of thing.

But, again, I digress.  For the purpose of this piece, I'm going to abandon the semantic argument about what is or is not torture, and stipulate that anything past asking a prisoner of war a question while the prisoner is seated in a normal position constitutes torture.  POWs being kept in large numbers in a POW camp and being fed reasonably and given a place to lie down is not torture.  How's that?

So here is where morality comes in.  I believe that every prisoner of war who is a battlefield participant (i.e., is a soldier of their side) has a fundamental right to be treated without torture as defined broadly.  However, and this is the big one -- that right is not unlimited.  In other words, prisoners of war lose their protection from torture when they commit, or conspire to commit, acts of terror upon innocent civilians, and prisoners who commit such acts outside of a declared war forfeit them entirely. 

Now, this is badly in need of legal definition, and I'm not a lawyer (though I've played one on stage).  How, for example, would we have protected the crew of the Enola Gay, in a declared war, from being thought of as terrorists?  How do we properly exclude uniformed participants in declared wars between nations?  Would the 9/11 attacks have been less appalling in concept had it been done to us by Germans in 1942, since we and they were bombing each others' innocent cities already?  War is, indeed, heck.

I do have a moral compass on this issue.  The USA is not in a declared war against any sovereign nation and hasn't been for years.  There is a group of individuals, not Americans and not a sovereign state in and of themselves, who for 20 years at least have been planning and in some cases carrying out terrorist attacks against the USA (and others).

Absent the protection of sovereignty and a declaration of war, they are a special class of international criminals, and not subject to the protection of the Geneva Convention or anything else.  In at least my moral code, they have forfeited their right to be treated as normal prisoners, and are open to being treated by whatever means are necessary to extract the intelligence needed to protect our citizens, and to deter future comrades from taking up terror.  They have forfeited their own humanity, and we have every plausible right to oblige them by treating them as sources of the information needed to protect our citizens.

The morality of torture is not just defined by the morality of the appliers, but far more so by the immorality of the criminal.

Copyright 2014 by Robert Sutton