Reading Into Silence

Given the recent discussion of torture as practiced by the United States in the war on terror, dug up a 2006 article called "Aquinas on Torture." It turns out, actually, that Aquinas said nothing whatsoever about the practice. It is an interesting ommission, the author argues:
Here we are faced with something that, for this writer at least, is something of an enigma. It does not appear that Aquinas approved of this practice. Nowhere does he defend it... [H]e neither defends or condemns the judicial institution of torture. The omission is curious, to say the least.... What are we to conclude? One is tempted to say that Aquinas “copped out,” that he ducked the question, perhaps because the temper of the times would not have tolerated an honest answer.

The torture of witnesses, as mandated in Roman law, involves inflicting pain on persons who are, at law, innocent of any crime. In his discussion of homicide, he absolutely rejects the killing of innocent persons. In the following question, concerned with “other injuries committed against persons” he does not raise the question of mutilating, beating or incarcerating the innocent. One likes to think that for him, the question could not arise: the context is clearly that of justice. Here, as with Aristotle, there is no question of “justifying” actions otherwise reprehensible on the basis of some greater good. Punishing the innocent is quite simply unjust. Hence there can be no justification for it.

Yet he was faced with an institution which was not only practiced, but legislated, both by the Church at the highest level, and by all contemporary civil societies.
There's a signal difference between the cases, which is that judicial torture is designed to compel confessions that will allow us to settle at law matters that have happened in the past; the American cases involve an attempt to prevent a harm in the future. The person under questioning may be presumed innocent, as there has been no trial: there may not even be a crime for which he might later be tried if the questioning is successful. Some of those taken and questioned were not even conspirators, but drivers or associates who may not know the significance of what they know. They might simply know something that could stop a crime, were it made known to the right people in the right hour.

So we're running right into the teeth of the problem that Aristotle is describing, and about which Aquinas was silent. But Aquinas does speak to the question of things we would consider torture in terms of correcting slaves.
Now it is unlawful to do a person a harm, except by way of punishment in the cause of justice. Again, no man justly punishes another, except one who is subject to his jurisdiction. Therefore it is not lawful for a man to strike another, unless he have some power over the one whom he strikes. And since the child is subject to the power of the parent, and the slave to the power of his master, a parent can lawfully strike his child, and a master his slave that instruction may be enforced by correction.
Then the question becomes one of whether we have proper jurisdiction to administer the correction -- as for example by explaining that it is improper to withhold information that might prevent a terrorist attack! Oddly enough, we seem to have decided that we have the right exactly where we don't have the jurisdiction: an American citizen is normally protected by the Eighth Amendment, whereas those captured in Afghanistan who are not and have never been American citizens (nor, perhaps, ever on American soil) are the ones we tend to use these techniques against.

I'm not sure we haven't gotten this one wrong all the way around. Some things can't be justified. If we feel we have to do it anyway, because the matter of preventing terrorist assaults is so grave, we should not think ourselves justified in doing it. We should think ourselves guilty of a sin, at least; and that's what confession is for.


Ymar Sakar said...

The problem is people's current idea that the Left and the Democrat party are the ones to decide on this matter, after having an entire two centuries of participating in torture and unethical interrogation.

douglas said...

But isn't this something we're doing under the jurisdiction of wartime activity? Does that change the calculus at all? There are rules for that too, and they are quite different from those we use in civil society.

Grim said...

Not, I think, for Aquinas; we may of course come to our own conclusions. Aquinas treats the question of whether war gives special license (in this case, license to deceive) here. He cites Augustine in saying that, provided a war is just, it does not matter if it is waged openly or by ambushes.

But then he goes on to specify that this doesn't mean that just any deception is lawful:

"Now a man may be deceived by another's word or deed in two ways. First, through being told something false, or through the breaking of a promise, and this is always unlawful. No one ought to deceive the enemy in this way, for there are certain "rights of war and covenants, which ought to be observed even among enemies," as Ambrose states (De Officiis i)."

What he's talking about there is what we call perfidy, and it's always a war crime. So it's OK to kill your fellow man, and even to do it via concealment or deception; but not by lies.

My sense is that we have lost something important in the move to secular legalism. Aquinas could say (as seems right to me) that the act of torture is wrong; and you could still do it, if you felt you had to do it, without losing the sense that it was wrong to do it. There's a way of recognizing and accepting the harm you are doing, confessing it, and seeking to atone for it in other ways.

What we must do instead, because we do not appeal to divine mercy in our law, is pretend that it's right and just to torture men who have (perhaps) committed no crime, certainly have been convicted of no crime, and may not be in any reasonable sense under our lawful jurisdiction. That seems to me to be positively worse than the kind of torture that, though still performed in extraordinary cases, recognizes its harm and illegitimacy and seeks to atone for it. That serves as a limiting principle on a terrible act. It also serves to protect the souls of those we ask (or allow) to do it, by helping them understand that what they have done is wrong and to seek aid in overcoming the pain of the sin.

douglas said...

I'm certainly sympathetic to the view you are presenting here, but I'm not sure yet it's right in the absolute-
"Now a man may be deceived by another's word or deed in two ways. First, through being told something false, or through the breaking of a promise, and this is always unlawful. No one ought to deceive the enemy in this way, for there are certain "rights of war and covenants, which ought to be observed even among enemies," as Ambrose states (De Officiis i)."

Now, it's right to do so, but what happens when your enemy ignores these rules and attempts to use them against you? Are you still obligated to give him the protections offered? I realize that in the case of the non-combatant who may know something this may not apply, but to combatants and accomplices, why would it not? One ethical axiom I try to hold to is 'If you are kind to the cruel, you will be cruel to the kind', mainly because it's shown to be true time after time.

We also need to be careful about which acts we are talking about and what torture is- we as a society have been letting the left label things again, and they have a habit of being dishonest about that.

Grim said...

If you're still interested in Aquinas' view, I would suggest you begin here, articles 2, 3, and 7. It sounds to me as if the view he is describing states that:

1) Yes, you may kill sinners, but,

2) Not as a private person, but only as an agent of a lawful public enterprise,

3) Except in self-defense.

So, if an enemy is guilty of perfidy and you are a lawful agent of a public enterprise -- say, a soldier or an officer of a court -- you might kill them without offense. Further, even if you are a private person, if you are the object of a terrorist attack or similar attempt at something like murder or perfidy, you may defend yourself lethally.

All that is lawful, i.e., justified and not sinful. In the next question, article 1, we learn that public officials may also sometimes mutilate the guilty to punish them for sins. Now that's pretty plainly torture by any definition. But it's punitive, again, not preventative; and it relies not only on the sinner being actually guilty of a sin, but on the punisher on having lawful jurisdiction over the punished.

We more often think of cases where the harm isn't complete, and guilt isn't certain. I may want to torture you to determine if you know something that could stop a future harm; I may not even be sure. If the harm is great enough, I might take that burden on my soul. I might think it was easier to live with than not doing it, and finding out later that my not doing it might have kept me from stopping the deaths of innocents.

Under those circumstances, I can see that I might do many terrible things. Even though you might be innocent, I might harden my heart and decide not to care. The greater danger isn't the doing of these things but the claim to their justification. If we can at least preserve the clear understanding that they are wrong, that they represent an evil, then we have a way back for ourselves and our civilization even if we sometimes find ourselves compelled to take these steps.