Sunday, April 19, 2009

torture memos, Eichmann, and irrevocable irresolution

eichmannThe Bush administration “torture memos” released last week contain the following gem of bureaucratized sadism. It’s lengthy, but definitely worth your time to read. Asked to advise the CIA on the legality of various techniques to acquire “cooperation” from captured Al Qaeda leader Abu Zubaydah, Assistant Attorney General Jay Bybee wrote:

In addition to using the confinement boxes alone, you also would like to introduce an insect into one of the boxes with Zubaydah. As we understand it, you plan to inform Zubaydah that you are going to place a stinging insect into the box, but you will actually place a harmless insect in the box, such as a caterpillar. If you do so, to ensure that you are outside the predicate act requirement, you must inform him that the insects will not have a sting that would produce death or severe pain. If, however, you were to place the insect in the box without informing him that you are doing so, then, in order to not commit a predicate act, you should not affirmatively lead him to believe that any insect is present which has a sting that could produce severe pain or suffering or even cause his death. [two lines redacted here] so long as you take either of the approaches we have described, the insect's placement in the box would not constitute a threat of severe physical pain or suffering to a reasonable person in his position. An individual placed in a box, even an individual with a fear of insects, would not reasonably feel threatened with severe physical pain or suffering if a caterpillar was placed in the box. Further, you have informed us that you are not aware that Zubaydah has any allergies to insects, and you have not informed us of any other factors that would cause a reasonable person in that same situation to believe that an unknown insect would cause him severe physical pain or death. Thus, we conclude that the placement of the insect in the confinement box with Zubaydah would not constitute a predicate act.

Translation: you know that Zubaydah has a phobia about insects. It’s okay to lock him into a small, dark box and toss in an insect to crawl all over him, provided that it isn’t actually a dangerous insect, and you don’t explicitly tell him that its sting causes “death or severe pain”. This is okay because a “reasonable person” would not react too badly if his torturers locked him in a trunk with a non-lethal stinging insect.

Such is the Kafkaesque legacy of the Bush administration. This week the Obama administration willingly donned a bit of the old Bush garb, as the new president promised to shield from prosecution CIA officers who engaged in torture. In his prepared statement, Obama said:

In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution. … We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs.

The idea, in part, is that the CIA torturers, people who work in very dangerous circumstances and whose ability to follow orders is crucial to national security, should not be punished for having done what they were told was their job. This is the point of a chain-of-command: the people at the top make policy, and the people further down carry it out. If CIA officers were to engage in constant second-guessing of policy, America’s intelligence capabilities would be drastically hindered, perhaps resulting in terrible things. So, while we might hold accountable those who created the torture policy, we should leave alone those who carried it out.

To keep track of things, call this the Good Faith Principle: government agents who act in good faith – who conform to a policy they’ve been told is legal – should not be punished if the policy is later found to be illegal or immoral. I endorse the Good Faith Principle, for the reasons given in the last paragraph.

But, of course, there are obvious counterexamples. Most infamously, perhaps, there is Adolf Eichmann, the senior Nazi bureaucrat who knowingly kept the deportation trains running on time to the concentration camps. Before being sentenced to death in Jerusalem years later, Eichmann insisted that he ought not be punished, for he had merely been “following orders”. Nearly everyone agrees that this is just not good enough; even though Eichmann did not set Holocaust policy, he executed it. He did something absolutely terrible, and he deserved punishment for it.

Call this one the Eichmann Principle: government agents who do bad things should not be later excused from punishment on the grounds that they were “just following orders”. I endorse the Eichmann Principle.

Clearly, the Good Faith Principle and the Eichmann Principle are in tension. One says that government agents may not be held culpable for following orders, while the other says precisely the opposite. And, as I’ve indicated, I endorse both principles. Am I being inconsistent?

At this point the dominant methodology of (analytic) moral philosophy says we should try to formulate some new principle, a middle point that captures the concerns animating each of the previous principles. It will presumably be very complicated, drawing a fine distinction about what sort of conduct may be excused on grounds of good faith, or just how bad an act must be before triggering Eichmann-style responses. I don’t think we should try to formulate any such compromise principle. I don’t believe there is any way to antecedently circumscribe some region of the dense, tangled moral terrain confronted by policy makers and their agents. The problem is one of irrevocable irresolution: there are good reasons behind each opposed principle, and no formulaic way to accommodate both simultaneously.

This much must be clear: there is a line, somewhere between producing one’s own version of “Fear Factor” with entomophobic mujahideen and facilitating the mass slaughter of an ethnic group. Government agents who cross that line, even in good faith, are liable to later punishment. Where is that line? I don’t know. Neither do you, Barack Obama, or various anonymous CIA torturers at black sites around the globe. This is why real-world ethics (not the sterilized academic version) is so difficult: we cannot map unexplored moral continents before we’ve set foot on their shores.

(image: NY Times / Israeli Government Press Office)


  1. i like the article. but... people feel that there is an 'issue', like this journalist - btw the 'Good Faith Principle' and the 'Eichmann Principle'. ITS NOT! its a no brainer but again - people don't have enough info to make that call. Well - the answer is here.

    Book by a professor of social psychology - the answer is there.. I give a hint - all the evil events that happened in world wars were because and only because: 'i was told to do so'. Then there is space for the Orderer to feel not responsible because he didn't do it and the Orderee to feel just as executioner, but not responsible, because it wasn't his idea. Could we stop write articles about who to blame, and just HOLD BOTH SIDES RESPONSIBLE?!
    Come on!

  2. Hello.

    I'm not sure I follow your reasoning. It seems clear to me that this is not correct: "all the evil events that happened in world wars were because and only because: 'i was told to do so'." Plainly evil events require more than someone who voluntarily carries them out - someone else must first give the orders.

    And many of the people doing these horrible things are entirely too willing to do them, not simply because they've been given orders. Indeed, that is a prominent finding in the infamous "prison experiment" conducted by Philip Zimbardo, the author of the book you reference. Zimbardo noted that many of the arbitrarily-selected prison "guards" quickly self-identified with their roles, and created their own forms of abuse and degradation for the "prisoners", even absent any order from an authority figure to do so.

    Returning to the case at hand - I'm not sure who are the "both sides" you wish to hold responsible. As I've suggested, I don't believe we should be punishing the CIA torturers in this instance, for exactly the reasons I articulated in motivating the Good Faith Principle (and Obama gave in his Statement). If intelligence agents must constantly second-guess their actions, they will be ineffective. Do you have an objection to this view?

  3. Very well... Interesting. I see your point but I think that generally people loose the action while philosophing about things taking the 'simplicity' out of it - is my point of view. Common sense... It's missing. Just to say to begin with something.

    The book - I'm glad we both read it. Well, I take Mr. Zimbardo's experiment in the way that... The guards identifying them selfs too quickly with their roles - isn't that exactly the effect of 'they were told to do so'... The role of 'authority' was one of Zimbardo's points. As the soldier who was on the pictures with the female soldier and of course with the infamous pyramid of prisoners. The authority puts people into position when they have to question their own ... believes... that's the 'better' case in this difficult position. Meaning - the person at the beginning didn't have the intent to do anything close to that but... they were 'pushed' to it by orders, by higher authority taking 'responsibility' for those orders - but apparently not for the actions since... who ended up punished. Isn't that so? So at the point when the abuse went 'far' from what they were told or allowed to do... I mean - what's not normal on that. They were pushed to the point - it doesnt matter if somebody 'broke' sooner or faster' - the point is they reached the point and stepped over it. But... its an effect coming from circumstances. They were told. 'pushed', kept in it. Even Zimbardo himself regretted to let it go so far, that he himself kind of jumped into the 'role'. Am I right?

    On the other side - nobody tells us how many of these lets say world war ii atrocities were done with 'will'... But we do know that huge amount of officers at that time were fearing Hitler. Fear is a huge factor. Fear, chaos, orders, TRYING to belong to something thats more than you, because you don't have... ah, my english.. I don't know all the words. Like - rather chose to be part of this machinery than to be alone in fear. It's easier to spread fear, even tho while fearing. Very interesting thing happened to me. A young friend from Florida was writing about WWII. She chose to describe these cruel deeds during the war by finding somewhere a passage about high number of SS officers committing suicides in the camps, because of what they were in charge of. That shocked me. That this was chosen by a young person, who... well apparently didn't have enough informations about that time and event itself - the high suicide rates were supposed to describe how horrible it was there, as opposed to just write the number of people killed, gassed, tortured, executed, experimented with in the camps - in that short time. I use this again - as issue of being informed properly and as an information new too me as well (the suicide rates).
    Is it not enough visible that only 'power structures' enable such behaving? Army, gangs... I mean.. give me one more example. I cannot find one. Everywhere where some idiot with agenda rules with strong hand - the others fearing and longing for better position in their sick system - are 'willing' to do things like this. My opinion.. I don't force it on you.

    And our 'case at hand' as you call it. It's... Your call for intelligence agents not needing constantly second-guessing their actions - its Jack Bauer. They hate him, they want him 'out' but... he saved the country in every episode. Where peace loving people live their lives in .. peace during the day... secret agents shoot at each other at night. Just a 'picture'. I think every country with strategic power - has an agency that will tell president that they are under constant possible threat. Thats their job tho. It's like hoping one day that soldier will tell you that he doesn't need gun. It won't happen. Isn't that bit bended? It's their reality. So if you ask me how to make intelligence effective in this case... Its such a super long story. What if I just answer, that there were so many whistleblowers trying to prevent the act that lead to the things that happened followed by the interrogations we talk about. I guess to listen then would be effective. (I know its not an answer per se... But to type my thoughts and I'm actually typing as I think its not easy. I'm sure after I send this and you respond and I read your new respond and re-read my part again - I will maybe beat my head, that I didn't rather write this or that instead of that example.. It's a very broad topic, interconnected with so many things. But that was the only reason why I wrote at the beginning a simple respond. Responsibility is a key word for OUR actions. There are very few things in our lifes we can actually blame others for. Because we all have a choice. And my name is Peter, I just didn't know how to comment, you're the first person EVER I write something to... Except facebook. But thats... not that 'deep' :). Have a wonderful day

  4. Hi Peter, thanks for taking the time to comment!

    I wanted to address a somewhat more narrow topic than what I think you're discussing. You're definitely pointing to a real phenomenon regarding Zimbardo's "guard" and Nazi prison camp guards; many actively took on a way of living and seeing the world that allowed them to do a variety of quite terrible things. But I wanted to highlight a narrower case: people who are instructed to do a specific range of actions, and who engage in only those specific actions. Under what circumstances may they later be held responsible?

    Similarly, this is supposed to exclude Jack Bauer-type events. The real life CIA torturers went to the federal government and asked permission to employ their techniques, which they then duly received. So they were "following orders", in a way that Jack Bauer signally doesn't.

    Certainly the issues you raise are interesting. I just wanted to narrow the focus in the post, to bring to our attention a highly particular range of moral questions.