torture memos, Eichmann, and irrevocable irresolution

The 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)

the honorable thing

Last week R. Thierry Magon de la Villehuchet, a French hedge fund manager working in New York, tabulated his losses: 1.6 billion dollars, his own money and that of his clients, poured down Bernard Madoff’s bottomless cavity. He called one important Parisian client and confessed his anguish; he had “betrayed” those who trusted his acumen. He tried but failed to recover the money. That night, he asked the cleaning staff to leave early, so that he might work late in peace. When morning came, according to the New York Times:

Security officers discovered the body of Mr. de la Villehuchet, a co-founder of Access International Advisors, in a chair, with one of his legs propped on his desk. His wrists and his left biceps were slashed, said Paul J. Browne, a New York police spokesman. A wastebasket had been placed under his bleeding biceps, Mr. Browne said.

It is possible to see de la Villehuchet’s suicide not as cowardice or comeuppance, but as an expression of deep moral courage. He had made a drastic mistake, an act of inexcusable negligence resulting in terrible consequences for a great many people whose vulnerability was a direct result of the trust they granted him. There was absolutely no way for him to repair the damage, and nothing in his power could possibly achieve suitable contrition. Facing an unthinkably large debt of guilt, he surrendered his only comparable asset – his entire universe.

In Victorian England, this was “doing the honorable thing”. Were you fully disgraced, your friends and colleagues would leave a bottle of whisky and a loaded revolver in your study, and you knew what was yours to do. Your end, achieved in privacy and dignity, would eventuate a sort of clearing of the moral air for everyone involved, most of all yourself. Under appropriate circumstances, this was understood to be obligatory on your part, although no one else would be justified in bringing about the desired end were you discovered uncouthly alive.

These cases are importantly different from suicide prompted by despondency or fear. People like de la Villehuchet might very well wish to go on living, apart from their moral guilt. Nor are these cases of martyrdom; nothing positive is accomplished. No – these are deaths for the sole purpose of salvaging honor. By these lights, an honorable suicide is merited once one has irrevocably destroyed one’s social status in life. Honor might be recaptured for one’s legacy (and perhaps for the sake of one’s heirs) with a suitably monumental display of regret. But anything else will forfeit honor eternally.

In 1912 the Emperor Meiji died of cancer. As his funeral procession passed through Tokyo, General Nogi Maresuke and his wife drank some sake, put on fresh linens, and then carefully disemboweled themselves. Nogi thereby completed the ancient (but by then illegal) samurai ritual of junshi, the following of a vassal upon his master’s death. In his suicide note, Nogi pleaded culpability for mistakes made while commanding in the Russo-Japanese war. Given these failings, it would have been dishonorable for the general to remain alive once the emperor had passed. (That Nogi’s wife should also die, despite bearing no recognizable personal blame, was a separate tenet of what was even then deeply archaic samurai lore.)

Nogi’s seppuku divided Japanese public attention. It was an act of supreme loyalty and, in a sense, beauty. Samurai death rituals possess intricate, highly symbolic structure, including the composition of delicate jisei (death poetry) and a tightly prescribed sequence of blade movements. The act plainly requires extraordinary discipline, especially when, like Nogi, one has no assistant to deliver swift decapitation and must instead die slowly from the stomach wound. At the same time, Nogi’s seppuku marked an abominable encroachment of primitive custom on the rapidly modernizing Japanese culture. It was embarrassingly crude for a people rushing toward industrialism and democracy. There emerged agreement that such things must cease – and so they did, until a brief upsurge in interest among the military caste in 1945.

I wonder if the Apocalypse Lite flavor of today’s economic climate encourages actions like de la Villehuchet’s suicide, just as the epoch-making death of Meiji Tenno did for Japanese a century ago. As the global order sputters and staggers, does it seem more appropriate to balance one’s own moral accounts in a suitably conclusive manner? Can this really be the honorable thing to do?

I have mixed views about honor. The concept seems deservedly obsolescent, suggesting a desperate grip on the fraying tail of Romanticism, and carrying the faded but unmistakable odor of feudal patriarchy. Suicide for honor looks like a perfect example of just so much self-important insanity. Really, honestly, exactly what is accomplished by this sort of death? The end of de la Villehuchet’s life undoes exactly none of his mistakes; it leaves absolutely no one better off. The only result is that a human life, an irreplaceable singularity, a still-glittering prospect of extraordinary redemption, is no more. That, for this archaic vagary, this half-digested pseudo-virtue, this ‘honor’?

And yet. There is something admirable in a person’s saying through conduct: ‘This is my mistake. I own it, absolutely and permanently. There will be no equivocation, no blame-ducking. I deserve the consequences that I can’t prevent from falling on others. And with this act, all discussion is closed.’ Silly and romantic it might be, but such an unreluctant embrace of personal responsibility seems, for lack of a better word, noble. If nothing else, while Bernie Madoff smirks his way home and Rod Blagojevich names his own senator, one can’t help but wonder if they might have learned a thing about honor from Thierry Magon de la Villehuchet.

The Master of the World
has passed away--
and after him,
eager to serve my lord,
go I.
Nogi Maresuke, death poem

the american entrepreneurial spirit

Suppose you are 21 year old man living in Fort Worth Texas and want to start your own record company. But you don't have any money. What do you do?

Answer: you go to your girlfriend's house and steal her mother's checkbook. Then you write out a check to yourself for 360 billion dollars. Because that's probably enough to start a record company, right? Then you go to the bank and cash the check!

Also, when you go to the bank to cash your forged check (worth about 3% of the entire US GDP), make sure that you bring along your gun and your marijuana.

the full story at MSN