S.J. Quinney College of Law

by Joshua Lindley

Halloween is upon us, which conjures up feelings of ghosts, costumes, and ghastly stories of old witch hunts and hauntings. As such, this time of year is quite fitting to pull out a skeleton in the closet of U.S. American history.  Particularly, I, like Richard Shiffrin, want to expose that horrifying demon of torture.[1]  This time of year also marks the ten year anniversary that U.S. military personnel and CIA operatives engaged in torture at Abu Ghraib; the very prison that earned fame for use by a dictator sentenced to death for crimes against humanity.  Unfortunately, Abu Ghraib is not the only instance, nor the most recent, of alleged torture by the U.S. and the reasons for engaging needs to be revisited. 

About four years ago, I viewed a documentary about the events that took place at Abu Ghraib.  I forget the name or maker of the documentary, but suffice to say that the film contained interviews and images about what occurred at Abu Ghraib.  As impactful as recounting those events may be, I want the focus to stay on the reasons for engaging in torture.  More poignantly, I want to discuss two particular justifications for the U.S., in public opinion, to engage in torture.

The Twisted Golden Rule and the Greater Selfish Good

The first justification comes as an answer to a critical issue in military stratagem.  Namely, if one party has vowed never to engage in torture and then that party enters into armed conflict with another party that has no such compact, is the first party justified in committing torture against the non-conforming party?  This question has sparked the first justification for torture of “let’s do to them, what they have done to us.”  This justification comes off as a twisted version of the golden rule.

The next justification is spawned by a utilitarian approach which seems to justify torture in order to promote a “greater good.” This justification is simply the idea that one person needs to suffer in order to save hundreds or thousands of lives. However unselfish this notion may seem, its practical effect is actually very self-centered; as who decides what the “greater good” is and to whom. In other words, would we ever decide that our own people need to suffer to serve the “greater good” for the rest of the world?  This idea of justifying torture for a greater good has been expounded in one author’s blog as a mythical notion because the definition of what the “greater good” is becomes self-serving.[2]

Now that these two justifications have been explained, follow me for a moment as I attempt to relate the two justifications which I will refer to as “the twisted golden rule” and “the greater selfish good” to an experience I had with my two year old son.

Every week my wife and I attend a service where we can leave our child in a nursery while we attend other meetings. This nursery is for children about two years old.  One week, I decided to stay in the nursery with my son and see how he interacted with the other children there.  I instantly realized that the children differed significantly in the way they interacted with each other. Some differences would be innate but some could be from the fact that all the children were raised in a different home culture.  Some were bullies or rambunctious and demanded respect from others, and others were calm, well-mannered and respected other children’s needs.  I also observed that as some of the latter children were hit or had toys taken from them, the victim child would either retaliate, cry for help from another or turn the other cheek (fight, flight or negotiate).

Looking back at that experience now, I realized those children were demonstrating, quite amazingly, the international system.  Much like many nation states dealing with each other in the international system, the children came from independent homes and yet they still had to interact in handling affairs in the nursery. Like the nursery, when conflict arises in the international system some nation states handle the matter on their own, some take their plea to another larger force, and some are more willing to negotiate or allow subservience.  The children also demonstrated the two justifications I mentioned earlier for torture.  First, the twisted golden rule was shown when a child who decided to treat another child badly did so because he or she had been treated badly. This idea is fantasized by the fabled bullied kid finally knocking some sense in the bully by whollopping him.  However, in realty this twisted golden rule action is reactive instead of proactive and I found that usually this would only stir the first offending child into a worsening degree of retribution towards not only the reactive child but other children as well.

I also observed the “greater selfish good” justification whenever a child thought, as most toddlers think, selfishly.  When little Tommy decided he wanted a toy, he did not think about what the loss of the toy would mean to another.  In another example, little Sally and Susan took a cup from Terry so they could finish their tea set. Obviously, in Sally and Susan’s mind, finishing the tea set was a “greater good” than letting Terry enjoy the individual cup.  From observing these children I found that the “greater good” needs to be looked at in a broader sense in a sort of humanitarian utilitarian outlook.  To do this, one has to think past the current situation and into the bird’s eye view and long term effects of the situation.  So many mistakes come from thinking in the here and now or this one current issue and forgetting about the future and bigger picture.  Therefore, might I then speak plainly and say that the two justifications I mentioned previously are shortsighted and, as displayed in the nursery, childish.   

Making Better Choices Requires Better Forethought

So how do we prevent using these justifications in the future? An old railroad story that I heard as a boy seems to apply.  A railroad engineer was driving a train with a lot of cargo and passengers on board.  Up ahead the engineer saw an empty car on the tracks, without hesitation he made the train speed up. The train burst through the car and continued on its journey without issue.  Later, reports revealed that if he had slowed the train down he could have derailed the entire train and caused severe damage to goods and passengers. The engineer was asked how he knew what to do so quickly?  His reply was that he had rehearsed the exact situation many years before the incident and had made up his mind on what he was going to do when the situation arrived. More than 60 years ago, the U.S., like the train engineer, made up its mind that it was not going to engage in torture through the Geneva Conventions.  So why did the US engage in torture anyway?  The remorseful saying that “hindsight is always twenty-twenty” should not be an excuse for actions like those taken at Abu Ghraib.  There is a way to make foresight a reaction in the moment rather than trying to reinvent the wheel or justify a change. 

On this Halloween, I think that the scariest things should not be the ones we do not know about, it’s when we forget those things we once knew so well. The US engaged in hypocritical behavior by engaging in torture, behavior that should not have occurred as shown by the President’s apology after the release of the story.[3] The U.S. broke the trust and validity of an international system by engaging in torture. So, on this tenth anniversary of Abu Ghraib might I give a small bit of advice for future international policy; if we want to give credence to an international system we need to start doing what is right for the entire system and not what’s simply justified for our individual causes.

Joshua Lindley is a 3L at S.J. Quinney College of Law from Colorado Springs, Colorado. Lindley’s entry to the GlobalJustinceBlog is part of an assignment for the course International Criminal Law, taught by Professor Wayne McCormack.