I declare myself correct!

Is sort of the general reaction that I have while reading Mark's latest post in reaction to my own. In addition to continuing to misrepresent my and Victor's positions, it engages in the same straw man arguments, conflation of secular policy with morality, fundamentalist proof texting of Magisterial documents, et al. that have defined Mark's entire approach to the issue of torture.

Let's start from the beginning:

Like Zippy, I'm gratified to hear that Victor and Torq have, in fact made it clear that there are some forms of torture they do, in fact, reject. According to Chris Blosser, they made this clear in November 2006. I missed it, but I'm happy to hear that, something like a year and a half after I raised the subject , we have finally reached some sort of agreement that, at bare minimum, "Palestinian hanging" and "cold cells" certainly are torture, particularly if (in the latter case) it risks hypothermia."

I'm so glad Mark is just now grasping that Victor and I were far more motivated by something other than a desire to inflict pain upon others. Perhaps in another 4 months he will be able to understand that we are motivated by something other than mindless fealty to the Bush administration when it comes to disagreeing with him on this one. But now given that he recognizes this, is perhaps an apology due given his previous assertion that:

We know the thread has been read, because the operators of the site have found time to get rid of the Viagra ad that posted itself there. But they seem strangely reluctant to reply to Patrick's rather simple question.

So Patrick, in answer to your question, the Coalition has already spoken to your question in the past. Answers include "Torture is a Randian anti-concept", "Torture Pharisee!" and "I refuse to answer your question--on principle!"

They aren't called the Coalition for Fog for nothing.

Remember, however: the real question is not "What is torture?" As the Coalition has abundantly demonstrated to you, gifted wordsmiths can pretend to be baffled about the meaning of "torture" till kingdom come. The *real* question is right there in your field manual: "How do we treat prisoners humanely?" The related question, of course, is "How do we do that and still get the intelligence we need?"

If not, perhaps he could exercise a little less umbrage when he assert on the basis of this behavior that he is a liar. Of course, the same might be said for his continued willingness to proudly cite and without apology his slander against his white whale Michael Ledeen despite being provided repeated evidence to the contrary by Christopher Blosser et al.

Moving right along:

Chris Fotos writes in the combox at the CfF blog that the "foundational" question here is the indefectibility of the Church. I will take him at his word that he really believes he is defending some article of the Christian Faith in trying to leave a loophole open for "proportional" forms of prisoner abuse. That is, I will take it for granted that he is sincere. I will merely add that he is also wrong. One reader sums up his wrongness this way:

The "foundational issue here," Christopher Fotos writes, is the preservation of indefectability.

I once expressed the idea that, when theologizing, we should move from what is clearer to what is less clear.

Either Christopher isn't following that idea, or he understands the indefectibility of the Mystical Body of Christ more fully than whether torturing a confession out of someone is wrong.

I wonder how much really bad reasoning has been done over the centuries in the interest of preserving indefectability.


I agree with Josiah in the comboxes at CfF that this has nothing to do with indefectibility. There is no article of faith that torture or prisoner abuse is just fine, so there is no question of the Church "contradicting itself" doctrinally when Veritatis Splendor says that torture is intrinsically immoral. The permission of torture by the medieval Church was a prudential judgement that was quite capable of being in error.

Except, what Chris Fotos was likely referring to were issues like the following:

Curiously enough torture was not regarded as a mode of punishment, but purely as a means of eliciting the truth. It was not of ecclesiastical origin, and was long prohibited in the ecclesiastical courts. Nor was it originally an important factor in the inquisitional procedure, being unauthorized until twenty years after the Inquisition had begun. It was first authorized by Innocent IV in his Bull "Ad exstirpanda" of 15 May, 1252, which was confirmed by Alexander IV on 30 November, 1259, and by Clement IV on 3 November, 1265. The limit placed upon torture was citra membri diminutionem et mortis periculum -- i.e, it was not to cause the loss of life or limb or imperil life. Torture was to applied only once, and not then unless the accused were uncertain in his statements, and seemed already virtually convicted by manifold and weighty proofs. In general, this violent testimony (quaestio) was to be deferred as long as possible, and recourse to it was permitted in only when all other expedients were exhausted. Conscientiousness and sensible judges quite properly attached no great importance to confessions extracted by torture. After long experience Eymeric declared: Quaestiones sunt fallaces et inefficaces -- i.e the torture is deceptive and ineffectual.

Had this papal legislation been adhered to in practice, the historian of the Inquisition would have fewer difficulties to satisfy. In the beginning, torture was held to be so odious that clerics were forbidden to be present under pain of irregularity. Sometimes it had to be interrupted so as to enable the inquisitor to continue his examination, which, of course, was attended by numerous inconveniences. Therefore on 27 April, 1260, Alexander IV authorized inquisitors to absolve one another of this irregularity. Urban IV on 2 August, 1262, renewed the permission, and this was soon interpreted as formal licence to continue the examination in the torture chamber itself. The inquisitors manuals faithfully noted and approved this usage. The general rule ran that torture was to be resorted to only once. But this was sometimes circumvented -- first, by assuming that with every new piece of evidence the rack could be utilized afresh, and secondly, by imposing fresh torments on the poor victim (often on different days), not by way of repetition, but as a continuation (non ad modum iterationis sed continuationis), as defended by Eymeric; "quia, iterari non debent [tormenta], nisi novis supervenitibus indiciis, continuari non prohibentur." But what was to be done when the accused, released from the rack, denied what he had just confessed? Some held with Eymeric that the accused should be set at liberty; others, however, like the author of the "Sacro Arsenale" held that the torture should be continued. because the accused had too seriously incriminated himself by his previous confession. When Clement V formulated his regulations for the employment of torture, he never imagined that eventually even witnesses would be put on the rack, although not their guilt, but that of the accused, was in question. From the popes silence it was concluded that a witness might be put upon the rack at the discretion of the inquisitor. Moreover, if the accused was convicted through witnesses, or had pleaded guilty, the torture might still he used to compel him to testify against his friends and fellow-culprits. It would be opposed to all Divine and human equity -- so one reads in the "SacroArsenale, ovvero Pratica dell Officio della Santa Inquisizione" (Bologna, 1665) -- to inflict torture unless the judge were personally persuaded of the guilt of the accused.

But one of the difficulties of the procedure is why torture was used as a means of learning the truth. On the one hand, the torture was continued until the accused confessed or intimated that he was willing to confess, On the other hand, it was not desired, as in fact it was not possible, to regard as freely made a confession wrung by torture.

It is at once apparent how little reliance may be placed upon the assertion so often repeated in the minutes of trials, "confessionem esse veram, non factam vi tormentorum" (the confession was true and free), even though one had not occasionally read in the preceding pages that, after being taken down from the rack (postquam depositus fuit de tormento), he freely confessed this or that. However, it is not of greater importance to say that torture is seldom mentioned in the records of inquisition trials -- but once, for example in 636 condemnations between 1309 and 1323; this does not prove that torture was rarely applied. Since torture was originally inflicted outside the court room by lay officials, and since only the voluntary confession was valid before the judges, there was no occasion to mention in the records the fact of torture. On the other hand it, is historically true that the popes not only always held that torture must not imperil life or but also tried to abolish particularly grievous abuses, when such became known to them. Thus Clement V ordained that inquisitors should not apply the torture without the consent of the diocesan bishop. From the middle of the thirteenth century, they did not disavow the principle itself, and, as their restrictions to its use were not always heeded, its severity, though of tell exaggerated, was in many cases extreme.

And so on and so on.

Now Mark argues that these were all nothing more than prudential judgements that happened to be wrong, but given the complexity of the issue and the fact that you basically had no one calling torture an intrinsic evil during the period in question suggests to me that the indefectibility of the Church is indeed at stake since we have Christ's guarantee that the gates of hell cannot prevail against it but that Mark would have us believe that basically they did for quite a long time in that the Church not only condoned the practice in question but even went to the extent of drawing up a proper set of procedures for how it is to be used. To better illustrate the problem, substitute torture in this context for abortion or contraception and I don't think that one will be so cavalier at this kind of rhetorical dismissal. I don't regard this as insurmountable because I think the explanation offered by Akin:

In producing a definition, I'd like to start with two basic parameters:

Parameter 1: The definition should correspond as much as possible to our pre-reflective sense of what constitutes torture.

Parameter 2: The definition should point to something that is intrinsically evil.

The reason for Parameter 1 is that you should always start with a commonsense understanding of a term in attempting to give it a technical definition. The technical definition should capture as much of the commonsense understanding as possible. Otherwise you get linguistic chaos.

The reason for Parameter 2 is that I think the Magisterium would want the word "torture" used in a way that points to something intrinsically evil.

In Veritatis Splendor, John Paul II quoted a list of social evils--including torture--from Gaudium et Spes and seemed to apply the label "intrinsically evil" to this list. This does not strike me as sufficient to settle the question, though, for as His Awesomeness Cardinal Dulles has pointed out, John Paul II's use of this passage from Gaudium et Spes appears to have important unstated qualifiers and thus some of the items on the list (e.g., deportations) do not on their face appear to be intrinsically evil without further qualification. The possibility is thus raised (and I view Dulles's article as turning the possibility into a probability) that the pope was speaking in a general rather than a technical way and without further qualification we cannot simply say that every item on the list is intrinsically immoral.

So I don't think Veritatis Splendor is decisive on this question. Instead, I think that the evolution of the word "torture" will unfold in such a way in the future that the Magisterium will want it used of intrinsic evil.

The reason is this: The history of an institution can constrain the way that institution uses words. A classic example of this is the development of the Roman Empire out of the Roman Republic. Prior to the Republic, the Romans had kings, and getting rid of the kings and establishing a Republic was one of their proudest achievements. Consequently, Romans of that era could never allow themselves to have a king. This meant that, even when the Caesars were given king-like powers and were clearly functioning as kings (as in "We have no king but Caesar"), the Romans themselves couldn't call them kings. So Augustus Caesar asked instead for the title "Imperator" ("commander"), which is how Rome got its emperors.

Americans, because they threw off the rule of both a king and an empire, likewise can have neither kings nor an empire. Even if the presidency were one day morphed into a functional monarchy, we couldn't call it that. Similarly, even if we acquire a functional empire (I don't perceive us as having one, though I know others do), we will not in the foreseeable future get to the point that you have Congress and the president referring to "our empire" the way the Romans did.

A similar situation applies with regard to the history of the Church: The fact that Church authorities once used torture, in keeping with the legal custom of the day in secular society, is a matter of intense shame. To make it clear that this chapter of history is definitively over and that the Church has thoroughly broken with and renounced this practice, it will want to issue vigorous condemnations of torture--as indeed, it has.

And that constrains the way that the word "torture" is likely to be used.

If "torture" is not restricted to things that are intrinsically immoral (always wrong) then the Church--or at least moral theologians--would be put in the position of having to say that sometimes torture is not wrong.

Given its history, that is not something the Church will want itself--or its moral theologians--to be saying. The Church would be a lot happier if Catholic thinkers proposed definitions of "torture" that point to things that are intrinsically immoral, so I will seek to develop such a definition.

The inclusion of Parameter 2 may mean that our definition may not capture the full range of what has historically been called torture. Historically, the word has not been subject to the requirement of Parameter 2, and as a result, our commonsense understanding of torture likely covers things that are not intrinsically wrong but only extrinsically wrong.

This is normal whenever you try to give a technical definition for something that previously has only had a commonsense understanding: The technical definition never corrsponds fully to the previous, non-technical usage.

There thus may be some things that would historically have been thought of as torture that are not intrinsically wrong and thus can be justified in at least extreme circumstances. Indeed, this seems to be a large part of what is prompting the present theological and social debate about torture: Some people feel that due to the War on Terror we are in a situation in which some things that would historically have fallen under our commonsense understanding of torture (Parameter 1) may now be justified, but there is also a contemporary impulse to say that torture is always wrong (Parameter 2).

When combined with the same approach recommended by Armstrong here on a similar issue:

I don't believe, myself, that Pope John Paul II (the Great) has contradicted past development of doctrine regarding these issues. The approach that I believe solves the seeming contradiction lies in the analysis of Fr. Harrison and Avery Cardinal Dulles, in his First Things article, "Development or Reversal?" [Slavery]

The solution lies in understanding the subtle nuances in Pope John Paul II's language and the necessary distinctions in magisterial and non-magisterial beliefs and notions in the Middle Ages up to the present.

Whenever issues are complex and nuances and subtleties are ignored, and an "either/or / dichotomous mindset" employed, there is a ton of controversy. Hence, the present one.

We see the same dynamic in the predestination debates, "faith vs. works", "salvation outside the Church" discussions. It's always the same: things are assumed to be contradictory when upon closer inspection, they are not. So it gets very heated because folks talk past each other, and it is mutual monologue.

When Catholics such as Fr. Harrison and Cardinal Dulles take the past seriously and incorporate consistent development of doctrine into the equation, then the way is open for a satisfactory solution.

You get a more than adequate explanation that accounts for all variables and leaves indefectability untouched. I find this explanation far more reasonable and intellectually convincing than that offered by Mark Shea's rhetorical slight-of-hand in which the way to best understand Catholic doctrine is simply to pick the latest encyclical and go from there. It is the fact that his entire argument consists solely of an appeal to his interpretation of a text to the exclusion of all else that I will continue to hold that he argues like a fundamentalist.

One final point to be made that Mark completely misses is that adopting a view similar to that of Cardinal Dulles on slavery with regard to torture is not the same as seeking to revive the practice no more than Cardinal Dulles was with regard to slavery.

Mark continues:

Much is still being made of Jimmy Akin's argument for "proportional" use of painful coercion.

Seeing how Mark never actually engaged it, this isn't terribly surprising.

However, if that is the criteria the CfF really wants to go by, then I think about 99% of what I've had to say in complaint against this Administration's use of torture is vindicated.

If those complaints took some kind of coherent format beyond Mark's tendency to rant and conflate events such as KSM being waterboarded and Abu Ghraib, it might make his arguments more intelligible beyond the demagoguery. As I keep mentioning, we have primarily directed our attack towards your approach to torture with regard to moral theology not the political one. It is Mark who keeps on bringing it back into the political arena and asserting without evidence save that obtained by your peculiar charism of telepathy that the only reason Victor and I disagree with you is because of our support of the Bush administration. As I said, something to keep in mind the next time you wonder why we have the gall to call you a liar.

Jimmy's "proportionalism" theorizing basically applies (assuming we accept it) to a tiny minority of situations (i.e. ticking bomb scenarios). Essentially, what Jimmy is trying to argue is that, in such cases, it is not torture but proportional coercion and therefore not torture and therefore not intrinsically immoral.

Say I grant all that (I don't, because I think a) hard cases make bad law and b) I'm leery of just what is and is not "proportional"). But say I do grant it, for argument's sake. Where does that leave us? Basically, it leaves the Coalition in almost complete agreement with me because such ultra-rarified criteria are not what the Administration used in sanctioning and authorizing honest-to-God torture, including torture that resulted in murder of prisoners. As Chris Blosser acknowledges, we have in fact and under official sanction tortured (not "tortured") prisoners in the sense meant by proposition #1. I would only add that I bet my reader Katherine could supply numerous other instances of such torture and prisoner abuse beside the few I limit myself to for brevity's sake.

No doubt she could, except we're back in the arena of politics rather than moral theology. I realize that Mark tends to conflate the two so he can rant against the evils of the Bush administration and screech from his keyboard all kinds of wide-ranging pronouncements about how irredeemable the GOP is, but this is sort of a distinction worth noting. I agree with Chris Blosser's position which, if you actually read it, notes that there are some differences in the particulars of what exactly happened in the cases he is so apt to cite as Exhibit A.

As Blosser notes:

So as I had discovered in past investigations of this matter, explaining the root causes of Abu Ghraib abuses are rather more complex than "the CIA did it" and, quoting Mark, "Dick Cheney wants more Abu Ghraibs."

Not that Mark is likely to take that particular point to heart when issuing his next anathema sit against the GOP. As to the overall matter, I agree that something needs to be done to fix (and more importantly IMO) standardize our detainee system and I regard the McCain Amendment as a step in the right direction on that one. Victor does not, due in part to his (IMO justified) fear that the people that Katherine and many others who have made this issue a cause celebre seek to empower are the ones least interested in actually winning the war on terrorism. Call it a cynical view from many of these same individuals' approach to domestic crime.

So it seems to me to come down to this: The pretty clear and obvious teaching of the Church is that prisoners should not be tortured and abused, but treated humanely. That, not tiptoeing up to but not crossing the line from abuse to torture, is the goal.

Treating prisoners humanely is quite a different claim from the types of sweeping statements you have made (and continue to make, see below) about Catholic teaching. You want to oppose Bush on the grounds he's actively formenting the inhumane treatment of prisoners, go right ahead. It is your continued invocation of Gaudium et Spes to support that view and refusal to actually engage any arguments to the contrary, however, that has me seeing red.

Mark then proceeds to assert:

This is not Pollyanna unrealism. This is the 1983 Field Manual of the US Army, perfectly understandable to any speaker of English until the President of these United States suddenly discovered that it was impossible to understand because the President of these United States has, in fact, officially sanctioned both torture and prisoner abuse, denied having done so, and therefore desperately *needed* words like "torture", "outrages upon human dignity" and "humanely" to be impenetrable linguistic riddles. Accordingly, media pundits who have wanted to save the Administration's bacon (and who have likewise embraced a realpolitik vision of how to conduct the war) began suggesting such things as shooting wounded unarmed men on the battlefield, as well as making fuzzy calls for "legal" torture and issuing blurry condemnations of "squeamish" moralists who would not acquiesce to the line coming from the White House (which is what drew my attention to the subject).

I think you would be very hard-pressed to find serious pundits making arguments like this (their actual arguments, not Mark's caricatures or knowledge of their true intentions via telepathy). Chris Blosser did a round-up awhile back noting the real differences in the conservative movement on this one. I would also add, though Mark fails to understand this, that it is entirely reasonable to understand why non-Catholics would not adhere to Catholic teaching on topics such as this. IMO, it would be rather intellectually obtuse to expect them to do otherwise. I also think that you could oppose the McCain Amendment in good faith and not support torture, a point that I suspect Mark's demagoguery will not allow him to recognize on this one. IMO, much of the conservative skepticism towards many of the individuals and organizations that were so interested in the detainee topic was entirely justified in light of their past and current behavior. I suspect that many conservatives would unquestionably extend that point to apply to Senator McCain as well. But if you are curious why people are so skeptical towards your arguments on this one, Mark, it might have as much to do with your less than measured attitude towards those who dare to question you on this one.

For the past two years, I have argued that the Church says torture is intrinsically immoral (Veritatis Splendor 80) and that prisoners should be treated humanely and that the Administration is wrong (I would even say here *criminally* wrong) to ignore that in its official sanction of torture and abuse. The Coalition has condemned this appeal to the teaching documents of the Church as "fundamentalist proof-texting" meaning. Initially, they apparently meant that sometimes torture is not intrinsically immoral, despite the pretty clear wording of VS 80. With the advent of Jimmy's argument for proportional coercion, it now appears that the Coalition grants that torture *is* intrinsically immoral, with the qualification that if an act of pain infliction is proportional, then it's not really torture and therefore not intrinsically immoral.

Actually, we still don't agree with you on Veritas Splendor (I keep saying Gaudium et Spes because this is where the relevant quotation is from) and it would really help this debate if you bothered to keep track of your opponents positions rather than those that you assign to them.

As Jimmy Akin explains yet again:

In Veritatis Splendor, John Paul II quoted a list of social evils--including torture--from Gaudium et Spes and seemed to apply the label "intrinsically evil" to this list. This does not strike me as sufficient to settle the question, though, for as His Awesomeness Cardinal Dulles has pointed out, John Paul II's use of this passage from Gaudium et Spes appears to have important unstated qualifiers and thus some of the items on the list (e.g., deportations) do not on their face appear to be intrinsically evil without further qualification. The possibility is thus raised (and I view Dulles's article as turning the possibility into a probability) that the pope was speaking in a general rather than a technical way and without further qualification we cannot simply say that every item on the list is intrinsically immoral.

So I don't think Veritatis Splendor is decisive on this question. Instead, I think that the evolution of the word "torture" will unfold in such a way in the future that the Magisterium will want it used of intrinsic evil.

This is not a small point and I really wish Mark would bother to engage it rather than just citing the "plain meaning" of the text and then arguing that anyone who disagrees with him has ill motives. That is how a fundamentalist argues whether he wants to bristle at that label or not.

But since virtually none of the torture performed on prisoners by Bush Administation was proportional according to the criteria Jimmy describes, much of the prisoner abuse sanctioned by the Bush Administration is, in fact, torture and a violation of the laws of God.

The Bush Administration has managed to create a situation in which it is not a violation of the laws of man because the same man who orders torture--the President--is the man who defines what torture is according to the venerable Nixonian standard "It's not illegal if the President does it." I can't do much about that other than bleat protests. But I consider it real progess that the Coalition for Fog is now at a place where they at least acknowledge that the Administration has, in fact, sanctioned and ordered the use, not of "torture", but of torture. I look forward to the day, perhaps in another year and half, when acknowledging this will lead, not to blogs devoted almost solely to attacking those who oppose torture, but to blogs devoted to urging the Administration to fight the war on the basis of ius in bello.

When last I checked Mark, you had basically given up on the justice of the war as well as the war itself, deciding instead that Western civilization was more likely than Dar al-Islam to produce the Antichrist. Moreover, you clearly missed the whole point of my response to Dave Armstrong in which I said:

My own view on torture (or if torture is defined as intrisically evil then interrogation techniques that many would classify as torture) in general is fairly akin to how the Church currently views the practice of the death penalty as formulated by Mark Shea: that it is far more defensible in primitive societies than it is currently and that in the latter case it should only be used in the most extraordinary circumstances such as those represented by Rashid Rauf or Abdul Hakim Murad.

As I said in my reply to Patrick, the key here for me when determining the porportionality is the extremity of the situation, which as a practical matter has to be worked out according to a case-by-case basis. IIRC, this is also the same standard that the Israeli Supreme Court came to when this subject was raised there in the late 1990s. Because how you determine the extremity of the situation is based on the particulars of the situation, I really don't think that you can make the kinds of sweeping generalizations that Mark seems to favor here as a matter of morality.

As for my goals over the next year and a half, they're a lot less lofty: that Mark Shea manages to get to the point where he stops the demagoguery and actually processes the arguments of those who are disagreeing with him.