Saturday, December 20, 2014

The Bible and Torture: A follow up

I want to respond to some questions and comments on my previous post, “The Bible and Torture.”

One commenter asked,

“Would you condone the torture the Catholic church inflicted on thousands? Simply because the Pope said so.”

And again,

“Would you condone the torture, by the army of England against those who fought for liberty here in the Revolutionary war? Would you condone torture by Abraham Lincoln against those men who fought in the south during the Civil War.”

The answer to all three questions is contained in my original post, especially the part where I said,

I want to stress that we are talking about the use of inflicting pain to extract information only in exceptional cases."

Exceptional means, “forming an exception or rare instance; unusual; extraordinary.” (Italics added for emphasis.) In my post I go on to give the only example I can think of.

What qualifies as an exceptional case?  One in which there is an imminent threat of attack which is likely to result in the loss of life, especially on a large scale. This is sometimes referred to as the ticking time bomb scenario.

This rules out all or very nearly all the instances of forceful interrogation that are detailed in the Senate Intelligence Committee’s report. I have not read the six thousand page report, but none of what I have seen reported in the news meets the “exceptional case” standard. Certainly what happened at Abu Ghraib was reprehensible and in no way justifiable. Any interrogation technique, even within the exceptional case standard, must not inflict permanent harm, much less be lethal, nor should it be inherently humiliating (Deut. 25:3b).

My post should not be construed as an apologetic for the government’s actions. It is an attempt to consider the question of forceful interrogation techniques per se in the light of Scripture. When, if ever, are they permissible? Under what circumstances? With what limitations, and with what kind of accountability?

It has been suggested that my argument is utilitarian. Actually, it is rooted in God’s law with the recognition of the distinction which Jesus makes between weightier and lesser matters of the law (Matt. 23:23). Let me give an example:  the fourth commandment requires rest on the Sabbath, but when Jesus encountered opposition for healing on the Sabbath, he asked, “Is it lawful on the Sabbath to do good or to do harm, to save life or to kill” (Mk. 3:4). He judged the obligation to “save life” a weightier matter of the law than resting on the Sabbath. It seems to me that the use of forceful interrogation techniques—in exceptional cases and with the specified limitations and accountability—in order to save life follows the same principle. Under all normal circumstances we are to avoid inflicting pain on our fellow human beings. God requires this of us. But there is also the obligation to save life (which is also the first and most foundational responsibility of government). The question is, how do we reconcile these two obligations? The answer is, we look to the weightier matter of the law.

I am quite sympathetic to many of the concerns raised on the other side. “How do you know the person even has the knowledge you seek?” This is a good question, and it is why I said there must be reasonable guarantees. These guarantees must have a high standard, like catching them in the act of putting the plot into motion, or catching them with other incriminating evidence. I am sympathetic, too, with the concern for the psyche of the interrogator. But the same could be said for the person who is lawfully authorized to administer the stripes of Deut. 25:1-3 and for the executioner in capital cases (e.g., Ex. 21:12). I am also sympathetic to the dangers of the slippery slope. If such interrogation techniques are approved in the very limited circumstances mentioned, will it not lead to a broader use? There is certainly the possibility of this. But it is not inevitable.

While I am sympathetic to these concerns, I have not found the position that forceful interrogation techniques are always wrong in all circumstances to be compatible with Scripture. I am open to be convinced otherwise. But to do that, you will actually have to engage with the argument presented in the article and expanded upon here. Show me where and how I have misinterpreted or misapplied the texts.

Tuesday, December 16, 2014

The Bible and Torture

What is a Christian to think of torture? This question has forced itself upon us with the release last week of the Senate Intelligence Committee’s report on the CIA’s use of “enhanced interrogation techniques.” These EITs, as they are called, were used in the questioning of suspected terrorists in the wake of the 9/11 attacks. According to CNN, “The report found that CIA tactics were more brutal than previously known and accused the agency of keeping the Bush White House and Congress in the dark.”[1]

Responses to the report have varied. Dick Cheney was unapologetic. He vigorously defended the CIA, calling the report “a terrible piece of crap,” while Kenneth Roth, executive director of the Human Rights Watch, called for the prosecution of senior Bush officials who authorized and oversaw the program.

A number of people have raised concerns about the partisan nature of the report, its neglect of historical context, the hypocrisy of leading Democrats in condemning techniques which they once approved, and the committee’s failure to interview the key figures who established and ran the program.

CIA director John Brennan said, “In many respects the program was uncharted territory for the CIA, and we were unprepared. But the president authorized the program six days after 9/11, and it was our job to carry it out.”

Brennan also said the agency made mistakes within the program, especially early on, and that some of the techniques were “abhorrent and should be repudiated by all” involved. “None of these lapses should be excused, downplayed or denied,” he said.[2]

Our interest here is not so much with the report itself, or with the specifics of the program, much less with defending or condemning its participants. Our interest is to consider the ethics of torture per se.

The Question
The question at its most basic level, it seems to me, is this:  Is it ever permissible under Biblical law to inflict pain on another human being? The answer is clearly yes. We can cite cases as diverse from one another as these:

  • The discipline of children (Prov. 13:24; 22:15; 23:13-14; etc.)
  • Corporal punishment of criminals (Deut. 25:1-3; Ex. 21:23-25)
  • Capital punishment (Gen. 9:6; Ex. 21:12, 16; Lev. 20:2; etc.)
  • Self-defense (Ex. 22:2-3)
  • Just war (Ex. 17:8-16; etc.)

The Discipline of Children
It should be noted that the pain inflicted in these cases ranges from very mild to quite severe. The mildest, of course, is the loving administration of corporal punishment in the discipline of children. While some overly zealous, ideologically driven child welfare advocates might object, most reasonable people accept the notion that the board of education modestly applied to the seat of learning can have a very salutary effect in leading children to responsible behavior. “Whoever spares the rod hates his son, but he who loves him is diligent to discipline him” (Prov. 13:24).  

The Corporal Punishment of Criminals
While the corporal punishment administered to children is rather mild, under Biblical law the punishment meted out to criminals could be quite severe. Consider Deuteronomy 25:1-3.

If there is a dispute between men and they come into court and the judges decide between them, acquitting the innocent and condemning the guilty, then if the guilty man deserves to be beaten, the judge shall cause him to lie down and be beaten in his presence with a number of stripes in proportion to his offense. Forty stripes may be given him, but not more, lest, if one should go on to beat him with more stripes than these, your brother be degraded in your sight.

Note well that Biblical law assumes some men “deserve to be beaten” for their criminal behavior, with the severity of the beating being tied to the seriousness of the crime. One would be hard pressed to describe the upper limit (forty stripes) as causing anything less than rather intense pain.

The same might be said of a literal application of lex talionis, the law of retribution:

If there is harm, then you shall pay life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, stripe for stripe (Ex. 21:23-25; cf. Lev. 24:17-20; Deut. 19:19-21).

Some think this law was never intended to be applied literally and doubt whether as a matter of fact it ever was so applied. On this view, “paying an eye for eye” means giving a monetary compensation for the loss of an eye. However, in the case of murder, monetary compensation would violate Numbers 35:31, “You shall accept no ransom for the life of a murderer, who is guilty of death, but he shall be put to death.” Here is a clear command to apply lex talionis literally (“life for life”), which leaves open the possibility of other literal applications as well, [3] many of which would undoubtedly have caused intense pain.

Capital Punishment
Various forms of capital punishment are authorized in the Bible.[4] Some of them must have entailed a fair amount of suffering. Consider stoning. The physical suffering prior to the fatal blow (or at least the one causing unconsciousness) must have been quite intense.

Self-Defense and Just War
In authorizing the use of force in self-defense (Ex. 22:2-3), Scripture implicitly authorizes the infliction of pain. The inevitable result is the wounding, maiming, or killing of the aggressor. The same is true with respect to divine authorization for war.

To Extract Information?
We come now to consider the question of the infliction of pain for the purpose of extracting information. This, of course, was the point at issue in the Senate Intelligence Committee’s report—the infliction of pain in order to gain information leading to the prevention of further terrorist attacks. Is this permissible under biblical law? I do not see how it can be denied. If Scripture authorizes the use of force resulting in the wounding, maiming, or killing of an intruder in order to save life (Ex. 22:2-3),[5] and authorizes the infliction of pain in the punishment of criminals, why might forceful interrogation techniques not be used to extract information from a terrorist in order to save the lives of innocent people?

I want to stress that we are talking about the use of inflicting pain to extract information only in exceptional cases. What qualifies as an exceptional case?  One in which there is an imminent threat of attack which is likely to result in the loss of life, especially on a large scale. This is sometimes referred to as the ticking time bomb scenario. I know this sounds all Jack Baueresque, but is such a scenario in today’s world really all that far-fetched? We know that terrorist groups are intent on obtaining and using weapons of mass destruction against us. If a plot to detonate such a weapon in a major metropolitan area should be uncovered with the potential to kill hundreds, if not thousands of people, and one of the terrorists should be apprehended, I would hope that the authorities who have him in custody would have the moral courage to use forceful interrogation techniques to extract whatever information is necessary to stop the attack. Those who argue the other side suggest that the comfort of a terrorist (a monstrous criminal by definition; an actual or would-be mass murderer) is more important than the lives of the innocent. 

Of course, numerous provisos must come into play. First, there must be a reasonable guarantee of the suspect’s guilt. Second, there must be a reasonable guarantee that he has the information being sought. Third, innocent parties close to the suspect (e.g., his wife and children) cannot be harmed in order to force him to talk (Deut. 24:16). Fourth, the least painful means ought to be used first; the more severe ones only as needed.

Can such power be abused? Of course it can. What power is not subject to abuse? God places the sword in the hand of the civil magistrate (Rom. 13:1-7). But many who have had this power entrusted to them have abused it. What is the answer? Should we abolish civil government? Of course not. The cure would be worse than the disease. Instead we should labor and pray for godly leaders who will use the power entrusted to them with wisdom and under the restraints of God's law.

Update:  Please see my follow up that address some of the comments below.

[3] This is not to say that the law must be applied literally in other cases. The fact that in the case of murder, and only in the case of murder, it is said that no ransom may be given suggests that a ransom (monetary compensation) may be given in other cases. See Barch A. Levine, Leviticus (The JPS Torah Commentary), Excursus 9:  Retaliation and Compensation in Biblical Criminal Law, pp. 268-270; Jeffrey H. Tigay, Deuteronomy (The JPS Torah Commentary), p. 185
[4] E.g., being shot with an arrow (Ex. 19:13), stoned (Lev. 20:2; etc.), run through with a sword (2 Sam. 1:15); etc.
[5] The intent of the intruder cannot be known for certain, but the Bible grants the homeowner the right to assume the worst—that the intruder intends, or at least is willing to kill. This is the only way to explain the permission to use lethal force.