"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Thursday, September 28, 2006

Pounding the Table

I have followed with some interest the debate going on between Mark Shea of Catholic and Enjoying It and his foes at Coalition for Fog, about whether we are torturing detainees, what is torture, what should our policy be from a moral point of view. Mark Shea is a professional blogger and popular Catholic author who holds out on all things Catholic from his blog. It is unclear what his qualifications are for doing this, but he has a large following from all appearances.

Shea not only opposes whatever it is he thinks is torture, he also opposes the war in Iraq and any move to take out Iran. (In fact, I have been banned by Shea from even commenting on his blog, for suggesting that his attempts to "support" and praise the troops is inconsistent with his position that the Iraq war is unjust-- that if he really believed that, he cannot and should not support the troops in perpetrating injustice, but should rather advise them not to participate in the war at all rather than jeopardize their souls by formal cooperation in a moral evil.)

[What may explain Shea's fervent anti-what-he-thinks-is-torture/anti-war histrionics?

IMHO, He's the kind of guy often seen among fervent converts, who will back up whatever current policy position is coming out of Rome. If the Pope is against capital punishment, by golly, I am too! If the Pope is against the war in Iraq, by golly I am too! If the Pope thinks dialoguing with Moslems is a great idea, by golly I do too! You get the sense that if the next Pope favored more use of capital punishment, was OK with our war against Islamic jihadists, and was, like all popes prior to the late 1960's, a plain-spoken foe of Islam, that Shea would do a 180. Why? He apparently has his faith mixed up with the notion that a Catholic has to be with the Pope, not just on matters of Faith and Morals, but with his every prudential policy position, even about world politics!

It's sad because it plays into the hands of the fundamentalists who claim that Catholics believe the Pope is inerrant.]

Nevertheless, regarding torture, my own view is similar to this sound framing of the issue:

Torture is illegal under both international and U.S. law. Bush says he did not and will not authorize it. The question is how to handle what Bush recently called an "alternative set of procedures": rough or humiliating interrogation practices that exceed what is allowed under strict interpretations of the Geneva Conventions but that stop short of torture as conventionally defined. News reports, not officially confirmed, say that the CIA has subjected detainees to so-called stress positions (such as standing for long periods), cold and hot conditions, slapping, bombardment with light and sound, sleep deprivation and manipulation, and "water-boarding" (simulated drowning, which the CIA has reportedly discontinued).

Very simply put, Shea thinks these latter examples are torture under the Church's view. He is, however, officially agnostic about what the legal definition of torture is:

I declined to play this game on the basis of my ignorance of standard law enforcement procedures. People desperate to know what was and was not permitted were routinely referred by me to people who do the work of interrogation and write the Army regs, much as I refer people who want to know about plumbing to plumbers. This is what Victor calls "evasiveness". But the only real evaders were those who were and are making essentially the same argument that Victor continues to make to this day, that because Mark Shea doesn't know enough about the regulations governing prisoner treatment in the Army regs for the past 50 years, it is therefore impossible for anybody to say what torture is, much less condemn it.
Memo to Mark: what happened at Abu Ghraib and what the Bush administration wants to be able to do with jihadi interrogations that you denounce as torture (the dog-leash stuff, the guy with the blanket on him) is NOT TORTURE under accepted definitions of that term; while you may think that they are torture as defined by the Church, they are clearly not as understood by international or domestic law. Figuring out what torture is is not difficult. Torture is usually defined in international law as:

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

(This particular representative definition, by the way, is from the U.N. Convention Against Torture, not from the evil Bushies). Do the Abu Ghraib pics that so bother Shea depict "severe pain or suffering" as opposed to short-term humiliation? Reasonable people can disagree but I don't see it as involving any "severe" gradation of either "pain" or "suffering." Is it imprudent? Is it cruel? Yes to both, since there was no reason to it beyond the sadistic whims of the individual soldiers involved. Was it sanctioned by the military? No-- that's why Lyndie England was given three years in prison.

But are these types of activities (assuming they are used in the future for interrogation purposes and not as sadistic entertainment by rogue soldiers like Lyndie England) "torture" even as defined by the Church? For this one has to look at the very few places the Church has mentioned the topic. The "best" it gets for the Mark Sheas of the world are the most contemporary sources. They will find no support for their absolutely-no-physical-discomfort position in anything the Church taught prior to 1967.

These are, as best as I can determine, to two most authoritative statements on this issue supporting the absolutist position:

1) Vatican II's Gaudium et Spes rejected "all violations of the integrity of the human person, such as mutilation, physical and mental torture, undue psychological pressures and all offences against human dignity" (Gaudium et spes, n. 27).

2) Catholic Catechism #2297: "Torture which uses physical or moral violence to extract confessions, punish the guilty, frighten opponents, or satisfy hatred is contrary to respect for the person and for human dignity."

The problem with Gaudium et spes as a source of what is or is not permissible, is that it is self-referential: that is, it rejects all physical and mental "torture" without defining what torture is! As for the second part of the sentence, it rejects "undue" pressures again without defining what this means. It should come as no surprise that this document, like so many others promulgated by Vatican II, is less than Thomistic in its language.

As for the Catechism, by its plain language, it is directed at the motivation of the conduct, not the content of the conduct. Hence it rejects torture intended to produce confessions, punish the guilty, etc. But the methods we use against our enemies (which again, are not "torture" under civil law) are not engaged in to induce confessions. We use these methods to secure actionable intelligence about our enemies. What Lyndie England did might arguably fall under this definition, since she was motivated by hatred or some other illegitimate motive. What a trained interrogator might uncover through controlled, judicious use of such methods is clearly not encompassed by this definition.

So to sum: the methods Shea rejects as "torture" are not understood to be torture by recognized legal standards. Moreover, it is entirely unclear that the scant guidance given us by formal ecclesiastical documents demonstrate that these methods are "torture" from the viewpoint of moral theology.

Sadly, I fear that reason and logic notwithstanding, Shea's response to all this will simply be to dismiss me as a "torture excuser." Shea has no patience, when dealing with this issue, with making distinctions in moral theology, an endeavor that fills seminary texts and learned treatises. Rather, like a modern Cromwell, he knows righteousness or unrighteousness when he sees it, and needs no other reference to guide him. So he accuses Catholics like me of deliberate obfuscation about what torture actually means both in civil law and in moral theology, while absenting himself from the realm of first principles, the first of which is defining your terms.

It's the old lawyer's adage: when you have the facts, pound the facts, when you have the law, pound the law, when you have neither the facts nor the law, pound the table.

6 comments:

Christopher Fotos said...

Banned, eh? Join the club. I earned the honor by refusing to shut up about his misrepresentation of what Michael Ledeen wrote about enemy prisoners. I'd provide a link but he deleted that series including some of his own bizarre comments about Ledeen's evil influence or emanations or something, and how Ledeen was sly and I was putting my soul in danger by defending him.

I don't know exactly how Mark arrives at his destinations. For example, while he usually does follow cues from Benedict--not a bad starting point, and usually a good ending point too--IIRC he recently described Benedict's initial Islam-related comments at Regensburg as a "blunder".

Whatever the reason, he has become comfortable in some paleocon neighborhoods and his language and quality of reasoning concerning the War in Iraq have become a combination of The American Conservative and The Daily Kos. It isn't possible to merely disagree with Mark about the definition of torture or on the implications of the fact that the Geneva conventions have set up an effective framework mainly for uniformed combatants. No, if you do not agree with the Shea Magisterium, you belong to the Rubber Hose Right, you are a torture pharisee, and you are probably a member of the warmonger party. It is a serious problem when a prominent Catholic apologist, a man who practically if not literally has an imprimatur attached to his work, speaks in this sophmoric and unjust way. Above all it harms the Catholic project.

The problem is that Mark doesn't acknowledge his limits. He is very well educated in certain aspects of Catholic apologetics. He appears to believe that's an adequate foundation to make sweeping pronouncements in other areas that require equally deep knowledge, recent examples including international law and even Catholic history. There's a better model: Right now at The Volokh Conspiracy, Eugene Volokh himself and Orin Kerr have explained they haven't blogged on the detainee bill just passed because they don't have anything original to add and don't feel fully informed about the subject. And these are two people with tremendous quantities of knowledge about the law and the Constitution.

Though I read CAEI less than I used to--it's not healthy to read nonsense you can't respond to--I am most amused to see him express scorn or ridicule when, in his view, people misrepresent what he has really said or view his postings in the worst possible light. Misrepresentation and a lack of charity have become his M.O., and he genuinely does not seem to see it.

Greg said...

I think the fact that a prominate Catholic apologist like Mark Shea engages in the kind of behavior he has regarding this issue which includes his libelous attack against Michael Ledeen is a disgrace to both Catholic apologetics and the Church herself.

I also believe that the refusal of the Catholic apologetics establishment, like the folks at Catholic Answers who employ Mr. Shea as a seminar speaker, to practice fraternal correction here is equally disgraceful.

I have twice written to Jimmy Akin alerting him to this and asking that he and his colleagues demand Shea to correct his behavior and I have yet to even receive a response.

I think a public campaign on the part of Catholics in the blogospohere denouncing Mr. Shea and the other Catholic apologists who either engage in similar behavior or circle the wagons for those who do is in order.

kathleen said...

shea banned me too. not that i visited his blog very often.

I don't understand how anyone can take an outlet that publishes his work seriously. there's lots to choose from if one wants to read catholic apologetics, no reason to confine oneself to moderns on the internet. in fact, a great many reasons not to.

Anonymous said...

JOSEPH D'HIPPOLITO SAYS...

I have been Mark Shea's bete noir since 2002. The behavior described on this thread -- issuing personal attacks, constructing straw-man arguments, expressing public victimization and refusing to counter logic and evidence with logic and evidence when called to account -- have always been Shea's MO. Always. The only people who are surprised are those who are so taken with his apologetical style -- or by their own Catholic identity (cf, Jimmy Akin and Catholic Answers) -- that they haven't bothered to notice the obvious.

What's worse is that Shea is an obsessive bully. For nearly three years, he harassed me on practically every Catholic blog in creation by using non sequiturs to issue personal attacks that had nothing to do with the points I was making (Victor Morton knows about this well). He has successfuly led a campaign to have other Catholic blogs boycott me. He even tried to get Front Page Magazine not to publish me.

Shea has gone beyond the bounds of acceptable behavior. Either he has profound personal problems or he in an inherently evil man. In either case, he is not worth paying attention to, regardless of his skill in apologetics. People should stop buying his books and should stop donating to his blog.

Brennan said...

My entire dis-ease with this and similar topics is the "instantaneous development" of doctrine. As others have pointed out, the Church has practiced forms of torture in venues such as the Inquisition. She has allowed for the burning of heretics. All of a sudden, Gaudium et Spes and the Catechism come along and it's an instantaneous development. All of a sudden torture is intrinsically evil, period, and therefore if you wonder about its coherence with previous Church teaching and practices, you are just a Catholic looking for a loophole or what one can get away with.

As noted in this blog, the language of Gaudium et Spes is certainly not comparable to that of Trent. I wonder if one can say a doctrine has been defined if it is not done (and/or cannot be done)with precise language?

And usually most Catholics I know would not consider a Catechism, even an official one, as part of the Magisterium (although it may refer to the Magisterium).

Similarly, I have discomfort with the practical opposition to capital punishment. I believe Pius XII wrote of the positive benefits of capital punishment, such as the execution of justice, the expiation of sins on the part of the sinner, etc. It was not looked at as a mere "concession."

Also, Prof. James Hitchcock has described most of the "torture" used in the Inquisition as no worse than would be used by cops in the 1930's. And in the inquisitors minds, they were not doing evil, they were doing something perfectly acceptable for the good of the person's soul and society.

From what I understand, even when heretics were burned at the stake, it was not looked upon by the Church as doing something intrinsically evil. Rather, the punishment was severe because the crime of heresy was looked at as severe as it endangered souls and not just lives. Further, the idea of burning at the stake was for the sinner to hopefully repent in the fire before he possibly went to the fire of hell.

I recognize the disctinction between what Church members did and official doctrine. Nevertheless, again, it makes me uneasy when a practice which was not defined as intrinsically evil by the Church prior to the 1960's all of a sudden is, and without any apparent development leading up to it (even the Assumption of the Blessed Virgin was not defined all of a sudden without prior development).

I am not trying to advocate for torture or the use of it and certainly can sympathize with those who think we should not use it. I am just unsure of why all of a sudden it is intrinsically evil, even as a punishment.

Further, as stated above, since torture cannot be defined precisely, can it ever become a matter of official doctrine? It can become a matter of moral theology, sure. For instance, it is easy to make sins such as fornication, masturbation, contraception, abortion, etc. a matter of doctrine as they are easily defined. You've either done it or you haven't. However, I doubt how far one can go with a woman prior to intercourse before marriage can ever become a part of doctine (three kisses in one day and that's it). It could become a part of moral theology, sure. And one could even turn it around and say one should will the best for the woman in relations to her prior to marriage. But a part of doctrine?

Anonymous said...

JOSEPH D'HIPPOLITO SAYS...

Brennan, you are absolutely right about the contemporary Church's de facto opposition to capital punishment for murder -- a position that Pope John Paul II personally promoted and directly contradicts Scripture and Tradition.

As far as the CCC not being considered "magisterial," more Catholics seem to be studying that than Scripture, unfortunately.

We Catholics must ask ourselves whether the mentality of Oceania's Ministry of Information, as Orwell portrayed in 1984, has permeated those who teach and defend the faith professionally. If so, we must ask why.