Tortured Logic: The ethical double-bind of “just following orders.”

In the wake of the release of the so-called “CIA torture memos” - the memorandum which provided agents in the field with guidelines for interrogation techniques - the Obama administration has decided not to hold CIA agents responsible for acts of torture. Indeed, newly appointed Director of National Intelligence, Dennis Blair, has asserted that his agency “will absolutely defend those who relied on these memos.”

Among other things, this sort of “blame the Generals, not the Privates” defense of illegal behavior smacks of a kind of moral relevancy that should shock anyone who believes that there are imperatives under the social contract. (That is to say, obviously, in a state of nature, there are no laws, therefore nothing is forbidden because there is no social structure to make moral-based choices.) A person placed in a situation where he must decide whether he needs to resort to torture will perform one of three intellectual operations:

1. Torture because it is valid method to obtain information
2. Not torture because it is ethically wrong to do so
3. Torture or not torture based on what orders he is given
   
   

Putting aside the nothing that choice four would involve sadists who simply get off on inflicting pain, let’s assume that the above three options are available to a reasoning, sober human being. Only options one and two represent moral postures. An individual may make his choice based on what he feels is in harmony with his world view; the way the world should function. Option three represent a non-choice because it defers the choice to a paternalistic figure who will do the thinking for him. It is not a moral choice but rather an abrogation of our innate ability to function as a self-determining units. It is the position of the masochist, the underling, the henchman, the co-dependent, and the follower. I might also refer to this individuals as cowards, but I think that there may be bravery in certain kinds of faith in authority. I am not totally settled on this matter, so I will leave it for now.

It is possible that at times numbers 1 and 2 will coincide with the orders. That is not an issue of controversy. The question that we come back to again and again in history is what should humans do when they disagree with authority? If the General says “Do not, under any circumstance, use torture” and the agent does so anyway, the agent is listening to some form of higher authority. Jack Bauer on the TV show 24 wants to always be expediting because, well, the clock is ticking. So he will cut through the bureaucracy and get to the information he needs by any means necessary. We might find something admirable in that because we despise bureaucracy and love the forthright man of action. And besides, he’s not torturing good guys.

The conscientious interrogator who refuses to torture even after receiving his orders will face certain consequences. Perhaps he will be viewed as an unpatriotic coward, unwilling to do whatever is necessary in the defense of his nation. (Keeping in mind that there is almost universal agreement among intelligence experts that torture does not work. Famously, the Al-Qaida operative Khalid Sheikh Mohammed gave information after being tortured that resulted in “wild goose chases.”)

The orders themselves may originate from individuals who themselves would not be capable of performing the acts. They may in fact find themselves more in camp 2 or camp 3. But bureaucratic distance allows for the same sort of moral abrogation as when an insurance company denies chemotherapy treatment to a cancer patient. Facelessness is moral detachment. And in the heat of so-called “group think” or the “fog of war” there are ample opportunities for plausible deniability, scapegoating, and euphemism.

As with his refusal to halt the NSA wiretaps, Obama in this matter is showing an ugly form of moral pragmatism that will only serve to undermine his long term goals. Surely, how can we demand human rights from Cuba when we are going to allow agents who torture in our name to carry on with their lives, safe in the shadows? How can we lead with such an obvious abandonment of principle?

What is needed here is a compromise. A truth and reconciliation panel similar to the ones held in post-apartheid South Africa created a space where justice and public confession could meet in common cause. Even upright individuals will hide from accusers if there is the threat of punishment. They will deny their crimes and perhaps become belligerent, seeking hospitality from whatever fringe group will tacitly affirm their behavior. If a CIA agent truly believed that the best option in a torture/don’t torture scenario was to follow orders, he or she must feel a tremendous burden of guilt if they went against their conscious (assuming for the moment that the CIA does not knowing hire sadists). If there is the threat of length imprisonment, they may well be shepherded into the arms of far-right groups like the KKK. But what if the government told them they could come out from the shadows, tell their story, and demonstrate sincere regret without having to lose their lives? What if our government shouldered the blame? What if we went after the order-givers rather than the order-takers?