Torture is as torture does.

Can torture ever be justified? Can something like torture become contextualized in such a way as to become morally permissible? Can something typically considered to be a 'bad' thing in itself ever be the morally 'correct' thing to do?

These questions have been central to modern ethical theory. They highlight a tension between two kinds of theoretical approaches to the question, "What makes something right or wrong?" The first is called deontology. This approach to morality insists that things are right and wrong in and of themselves. Morality, according to the deontological approach, comes in rules, duties, and obligations that dictate what things are right and what things are wrong. Under this understanding of morality something like 'torture' would clearly be wrong. Morality dictates that one may never treat a human being in such a way.

A second approach to morality, called consequentialism, insists that things are right or wrong based solely on the consequences of an action. The most well known type of consequentialism is called utilitarianism and was most famously argued for by the English philosopher, John Stuart Mill. Under this theory, no action has an intrinsically moral component outside of a particular context and a particular set of consequences. In this way, consequentialism wholeheartedly endorses the notion that the ends can justify the means. This means that, if more good than bad can come from torturing a prisoner of war, then it is morally ok.

While most people, as a simple sociological fact, view morality in the deontological sense, there are a number of issues that bring out consequentialist leanings in many people. Waterboarding is such an issue.

Dick Cheney insists that the United States does not torture people while in the same breath says that "a dunk in the water is a no brainer if it can save lives."1 It doesn't take a cryptographer to know that the 'dunk in the water' being referred to here is what is known as 'waterboarding'. Waterboarding, which, incidentally, was a favored technique of the 'interrogators' during the inquisition, is the practice of blocking a person's breathing passages (usually by jamming a towel down a person's throat) and pouring water over their face. The result is a forced suffocation and inhalation of water causing a sort of asphyxiation that allows the interrogator to induce the sensation of drowning in a controlled environment. What makes this "dunk in the water" a "no brainer" to Cheney here is the implicit consequentialist reasoning that if the consequences of our torturing a prisoner lead to saving American lives, then waterboarding is ok. The good (saving American lives) outweighs the bad (torturing people).

The United States has admitted that detainees have been tortured in US custody (remember the Abu Ghraib fiasco that lead to the admission of torture in 2005). Importantly, though, all of those that were found to be involved were court-martialed. While the ways in which the blame was dealt out is an incredibly unjust affair in itself, the fact that blame was apportioned at all has become an important weapon in the arsenal of those who defend what Dick Cheney refers to as 'robust interrogation programs'. This is because it serves as a very real example of the fact that the United States will adhere to all laws concerning prisoner's of war (which, of course, prohibit all physical and mental torture as well as inhuman or cruel treatment of prisoners of war (Geneva convention; articles 3, 17, 87, and 130). This concern for anti-torture statutes clearly shows that the United States is committed to a deontological stance on torture.

So, the United States does not endorse torture yet Cheney finds no problem with a little "dunk in the water" should it prove to be necessary to extract information. What's going on here? There are two main ways of worrying about this: legally and morally (these are NOT the same thing). The legal concerns center around two main problems. The first is the question of whether waterboarding is torture. The second is whether or not the people held by US intelligence agencies count as prisoners of war and, resultantly, whether the US is bound by any laws of war to treat them in one way or another.

The moral concerns about waterboarding trump any question of legality in terms of the status of prisoners or the conceptual status of waterboarding as torture or not and asks directly whether we should be treating people in the way they are treated when this 'procedure' is performed on them.

The distinction between the legal and moral questions is important here because of the climate of the current discussion surrounding waterboarding. During Mark Filip's December, 2007 (a.k.a. last month!) nomination hearing (for the Deputy Attorney General) when asked about whether he believed waterboarding to be torture he replied that while he personally found the practice to be "repugnant" he wanted to withhold judgment on the legal question since the Attorney General currently has the issue "under review." In addition to the fact that this is how waterboarding is talked about in Department of Justice (DOJ) nomination hearings on the floor of the United States Senate, there is a better reason to emphasize the moral issue. Put simply, it allows the rest of us to skirt the legal question and condemn what is clearly, to most of us anyway, an immoral act. (That is, we can condemn it as long as we're not trying to get a job in the DOJ).

Let's back up though. Is waterboarding torture? Torture is the act of inflicting severe pain as a means of coercion. Does waterboarding meet this definition? Yes (though I understand if you want to wait for the DOJ's final report—sarcasm). Of course things are a bit more tricky. One would need to weed out the exact differences between a 'robust interrogation program' and 'torture'. I'll leave it to the reader to determine whether there is any important difference between Dick Cheney's 'robustness' and Johnny Everyman's 'severe pain'. The much trickier (and politically slimier) question is whether the people waterboarding has been used on enjoy the protection of the laws of war that concern prisoners of war. The US has come up with an entire slew of statuses a person being held by them might fall under. The most critiqued of these various statuses is what is referred to as 'illegal combatants'.

Despite any "War on Terror" we might be involved in, those who are detained by the US government (especially the CIA) are not prisoner's of said war. Instead they are 'illegal combatants' the rights of whom are never mentioned in the Geneva Convention.

Finally, semantics of 'torture' aside, is treating a human being the way people are treated when they undergo waterboarding morally permissible? Even if somehow one could convince themselves that waterboarding were not torture (apparently Filip is capable of such doublethink), is it still morally ok to perform such a procedure on another human being? Surely the category of things that fall under the heading "torture" doesn't exhaust the category of things that we ought not do, morally speaking.

What if we can save lives by waterboarding people? Do the ends justify the means in such a straightforward way? Even if we endorse such consequentialism, can we really ever know before we waterboard people that they will have reliable information and that our actions will result in more good than bad?

Even if we might think that mimicking drowning is permissible to save a life, this uncertainty about the ends of waterboarding will bring the questions of the means right back into play. Finally, does consequentialist reasoning of the sort that Cheney employs really even justify the use of waterboarding? While it may be the case that a single use of waterboarding that leads to saving an American life has a net positive outcome, that single use may lead the enemy to justifiably use the procedure on our own troops, thus eventually creating a net negative outcome.

Given this, it seems that both deontology and consequentialism will ultimately condemn the use of waterboarding. So, morally speaking, it looks like waterboarding is in trouble.

As far as the definitional problems of the legalistic approach to the question...I leave you with one last thought...

When Forrest Gump uttered the incisive words, "Stupid is as stupid does" he meant that if someone who fancies themselves smart does stupid things, then that person is stupid regardless of any pretentions of intellectual aptitude. It is a simple aphorism that would serve the current administration well. Torture is as torture does.