Saturday, September 19, 2009

Enhanced Interrogation, Ethical Objections and Responses: #1

Continuing from HERE and HERE

I am going to depart from my road-map to some extent, as laid out in those earlier posts. Although there are further preventions that I could describe, involving cells that were working on Anthrax attacks, SEE HERE, I am going to leave off the fact finding tour. My excuse. I'm a damn philosopher. I want to consider the ethical implications of those facts. Cut me some slack!

For the next few posts, I will assume the facts as presented are accurate. The questions remain; was past use of EIT against KSM and others morally permissible, and; would future use of such techniques be morally permissible? As well, there is a third question, that arises due to the public airing of the details of these cases; will future use of these techniques be effective, given this publicity? All of these are considerations that this ongoing series of posts will consider. I will do this by presenting a series of objections to EIT, and responding to them, in a fashion not unlike Aquinas utilized, but without the medieval lingo, and, no doubt, lacking the subtlety of the good Doctor. So, without further ado, let's move on to the first objection and response, after some preliminary review:

What EITs are we considering?

Circumspect, regulated use of water boarding as in SERE training (not techniques as used by the Japanese during WWII); sleep deprivation; extended standing; extended exposure to temperatures around 50 degrees Fahrenheit while lightly clothed and other approved techniques in the CIA IG report. We are not considering other techniques commonly labeled as “torture.” We are not considering the non-authorized techniques described in the IF report. We are not entering into the debate whether the techniques here discussed should be labeled as "torture." That is an issue that is, if not merely semantic, ethically beside the point. The real question is whether or not the techniques here discussed are immoral, when used in circumstances below described:

What sorts of circumstances?

“Supreme Emergency”, “Ticking time bomb” and other scenarios of temporal constraint, involving significant risk of large scale harm.

Against whom?

Non-traditional or ‘unlawful’ combatants we have good reason to believe have vital information, extraction of which could prevent the significant harms [“Good reason” here indicating anything from certainty to reasonable probability] and who are resistant to other non EITs.

The argument is presented as a series of responses to moral objections that have been raised to the sanctioned use of EITs. This series will address two audiences that are the source of the arguments. These are:

"Big A" Absolutists who argue we should never use these techniques, and, more importantly (because their position is the more plausible or nuanced of the two); "small a" or “legalist absolutist” (my neologism): those who argue we should have strict legal sanctions against use of EITs, but should nevertheless use them, or allow their use as extralegal or illegal, and rely on the good judgment of public or legal bodies in dispensing absolution for doing so (to CIA personnel presumably, but the legal reach could be higher).

In the series I have made an attempt to abstract and answer distinct objections used by both of these camps. I do this because the two ‘absolutist’ positions here confronted and the list of supporting arguments here presented are typically combined. Sifting them may lead to conceptual clarity.

I also do not pretend to address the legal arguments against EIT, as for instance the claim that use of EITs against unlawful combatants is, despite their legal status, contra to the Geneva Conventions, or against the U.S. Constitution (these according to this line of reasoning, being documents that should cover unlawful combatants). These arguments need to be addressed, but I’m not doing that here. I simply focus on the ethical arguments.

Now we move to the first objection. It is one of a set that I am going to label "technical" (others come in later posts). This does not mean that they have no ethical bearing, as you will see. For if the technical objections are correct, EITs are arguably not necessary for preventions, thus morally suspect:

Technical Objections

Objection 1. (The Otiosity Objection) There are always other less enhanced and less morally problematic techniques that will yield the same results. There is no need to resort to EIT.

Re: These alternative techniques some conducive of discomfort (isolation) others not (the so-called “relationship based approach”) are time consuming even if more effective. Temporally constrained situations may not allow for their full deployment, and may force consideration of ‘quicker’ techniques. Enhanced techniques (especially water boarding) have produced quick and accurate results that did prevent harms (see the IG report, and other sources in earlier posts). If things were otherwise, we would be hard pressed to understand why the CIA approached the Executive and Justice Departments with the request. If these techniques were largely unreliable, it seems there would be no temptation to use them.

There is also some question as to the alleged higher rate of effectiveness of less enhanced techniques. They often have high failure rates, as prisoners know how to ‘game’ these approaches. They often yield old, or stale information, information the detainees have reason to believe is already possessed by interrogators. In the case of KSM, concomitant with use of EIT, came fresh, new and preventative information. Before that, stale. [I suspect that this stale/fresh distinction now may be a problem with the EITs here considered, given that the details of their use, and 'how far we will go' is now public knowledge, due to the recently released CIA information. This raises legitimate concerns. Will they continue to yield fresh information in this changed circumstance? If not, do we have to up the ante now? Tough questions.]

One can argue for retaining water boarding (and against the alleged otiosity) in this way:

It is inevitable that subjects will differ in their susceptibility to different interrogation techniques. For subjects that are capable of resisting the non-enhanced techniques there need to be other options. The CIA acted on this very same line of thought with KSM. He was an unusually resistant person, and well prepared. He had training against traditional techniques, and was successfully resisting giving up useful preventative information. After he was water boarded, he gave information that led to the foiling of several plots. Water boarding yielded valuable and accurate preventative information, (while perhaps also eliciting some inaccuracies). Was it worth it? Yes. Hundreds, if not thousands of innocent lives were protected. This at the cost of some psychological panic (with no physical harm and no mental harm) inflicted on one person, a person who arguably has forfeited some level of concern because he had been instrumental in the deaths on 9/11, but also because he had freely chosen to put us in the position of making the choice to either force the information from him, or allow the deaths of more innocent human beings.

The contrary 'big A' absolutist position seems to be the one that is more counter-intuitive in this case, and in need of justification. For, if big A is serious, then he must universalize, and say that in every circumstance like this, we should not employ EIT. This would include every possible combination of individuals involved. So, asking a rhetorical question; we can quite rightly ask the 'big A' absolutist if he is willing to stick to his guns even in a case that involves him or his family members or dear friends being at risk. If he sticks to his guns, he contravenes intuitions, very strongly. This is evidence that he is probably wrong.

Generalizing from the KSM case, we cannot rule out the possibility that some who can resist the non-enhanced techniques will have exploitable weaknesses with regard to the more enhanced techniques. To rule out such possibilities and utilization of such options tout court is not prima facie justifiable in high risk, time constrained scenarios.

This leaves the 'small a' absolutist open to defend his position. What can we say to his suggestion that we outlaw the use of EIT, but pardon those that would use it in this circumstance? More on this in later posts, but for now, I would respond by asking him to consider this question with regard to some actual case of prevention: Considering what was prevented (presumably hundreds of deaths) does the agent who employed EIT deserve to be put at risk of incarceration? Do the people who authorized his actions deserve jail time? Why? Because they broke the law? Because they did something immoral? I think the 'small a' absolutist will opt for the former, with the qualifier "because they broke the law, and in the interests of maintaining an overall low level of use of physical coercion by governmental agencies, we have to have that law, and enforce it in this case even though the particular circumstance morally excuses if not justifies the acts."

I would suggest that this is using these persons as little more than pawns in some sort of utilitarian-inspired game of social engineering or incentive program. This is not fair to them. More on this particular issue in a later post.

That's all for now..