Torture & Allegiance: Part 1, The Location of Torture

I have been reading Paul Kahn's book Sacred Violence: Torture, Terror, and Sovereignty. Since the release of the Bush torture memos I've been thinking through Kahn's analysis as I watch the reactions coming from the political left and the right on this issue. More specifically, I've been wondering what a distinctively Christian approach to this issue might me.

Kahn's basic point in Sacred Violence is that the debate between liberals and conservatives on the issue of torture is being conducted upon a foundational misunderstanding. A misunderstanding which leaves, and will continue to leave, liberals and conservatives at loggerheads.

Kahn's analysis is that there are two distinct forces governing political life: Law and sovereignty. Law is the shorthand for our social contract, the agreements we negotiate to live collectively. Law is the great product of the Enlightenment and liberal democracies. By contrast, sovereignty involves the sacred rights of a king or government to rule. By calling sovereignty sacred Kahn means that this is the space of sacrifice, the space of killing or being killed. The space of war, revolution, torture, terror and martyrdom. At stake in sovereignty is a deeper question than law: What, politically speaking, am I willing to die for?

According to Kahn, the mistake liberals have made is that they think the issues of sovereignty have been left behind or trumped by the Enlightenment. The era of the Divine Right of Kings, the scaffold, the rack and the guillotine have been surpassed by democracies and the rule of law. But Kahn argues that this is a misreading of history. The sacred space of sovereignty is still very much with us, only in a different guise. Rather than a single divine sovereign, a King, demonstrating power through torture (e.g., the scaffold), we have a democratic sovereign where every citizen is expected to take up arms in defense of a sacred union. The location of sovereignty has become internalized, it is a matter of allegiance. Kahn points out that this sacred pledge to sacrifice is best demonstrated by the naturalization oath one must take to become a United States citizen:

I hereby declare, on oath,
that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen;
that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic;
that I will bear true faith and allegiance to the same;
that I will bear arms on behalf of the United States when required by the law;
that I will perform noncombatant service in the Armed Forces of the United States when required by the law;
that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion;
so help me God.

In sum, liberals, working with Enlightenment categories, fail to understand that torture is located in the space of sovereignty. By claiming that torture is illegal or immoral liberals are, in the conservative mind, missing the point. The point, for the conservative, isn't about Kantian ethics (e.g., the Golden Rule) or utilitarianism (e.g., Does torture promote our interests in the long run?). The point is one of loyalty, of sacred allegiance.

This disjoint is most clearly seen in the ticking time bomb debates. If a terrorist had set up a bomb to detonate in a populated area and you had the terrorist in custody would you torture the terrorist to get the location of the bomb so that thousands of lives could be saved?

There is a lot of conversation swirling around the ticking time bomb scenario. Does the ticking time bomb apply to the US torture situation? Is torture effective in getting information? And so on. These are all important questions but, at the end of the day, Kahn suggests that they continue to miss the critical issue: Would you, in fact, torture someone in the ticking time bomb scenario?

If you answer yes then you admit that torture has a location, a place in our political world. We might not agree on the exact location or how large the area is, but we agree torture exists within the horizon of our world. For the liberal such an admission feels like a failure. Something medieval has slinked from the past into the Age of Reason.

But if you say no in the ticking time bomb scenario, even on moral grounds, your fundamental allegiances are called into question. You, as a part of this social contract, are not willing to protect your fellow citizens and neighbors. This is essentially a religious failure.

Now, for a moment, I don't want you to approach this issue as a Christian (if you are one). I want you to approach the issue as a secular politician, as someone whose sacred allegiance is to the United States of America. For the liberal politician we can see how the ticking time bomb places them in a bind. As a liberal the politician does not want to admit that torture has a location in our world, particularly our world. So he can't say yes, I'd torture. But he also can't say no as such a response implies that he would, for moral quibbles, fail to protect the US people.

The point here is that, although there are vitally important debates going on about the utility (e.g., is the information reliable, impact upon American's reputation, motivation upon terror recruitment) and morality of torture, the debate about the legality of torture, for Kahn, misses the point. Torture is an act of war. War isn't illegal. War is in a different location. Torture exists in that same space. This is why conservatives keep saying "this is a war" through the torture debates.

War and the Enlightenment social contract exist in two different spaces. Liberals want to eliminate torture by an appeal to the social contract (law, morality, reason) while conservatives locate torture in the space of sovereign warfare and sacrifice, a place outside the law. With the location of torture unspecified liberals and conservatives cannot reach an agreement. Each is working with two different sociopolitical topographies.

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29 thoughts on “Torture & Allegiance: Part 1, The Location of Torture”

  1. Helpful clarity here. This is tacitly admitted, though, in the nature of the terrorism debate: the left tends to view terrorism as essentially a legal matter, and the right tends to view it as a matter of war. The positions are, as you say, irreconcilable.


  2. I guess I still have trouble understanding the "conservative" perspective on torture. Sure, they consider it a war issue as opposed to a criminal issue - but even with regards to war there is the concept of just and unjust methods of waging war. There is the category of war crimes.

    I guess that for these "conservatives", nothing we do could fall under the category "war crime" - almost by definition.

    I don't know. It still baffles me, to be honest.

  3. Richard,

    The ticking time bomb is to me a false hypothetical and dilemma. The problem with the ticking time bomb scenario is that unless one is looking directly at the time bomb ticking we have no idea that it is true. So do we torture based on a suspicion?

    How about a variation of Ivan's dilemma in Dostoyevsky's Brothers Karamazov? What if there were a ticking time bomb and in order to obtain a "confession" you torture the captive's child or even kill one of his children and threaten to kill another?

    Far too much abstraction and either/or thinking for me in Kahn's dichotomies.


  4. Conservatives view war as a "right" to protect interests, as each nation has interests. And they defend the right to torture those who subvert our "rule of law", as subverting law, means terrorism.
    But, international law gives the right of countries to appeal and to try the suspected, as the judiciary is an important aspect of discerning and determining what the individual's rights are...or are not...this is the reason for the judiary.

    Liberals want to defend univerals in rights, as human, thus undermining distinctives, and difference. Yes, we all have a right to being innocent until proven guilty, but what about guilt by a group as defined by the conservtive? The conservative sees the group, tradition, or nation as rightful sovereign, as identity and culture is defined by these formative "groups".

    Fortunately, reason wins over prejuidice by investigating and discerning whether the individual is guilty or not. No one is guilty by assoiciation.

    The liberal sees the individual as the sovereign to his own life, as well as allowing the "right" to privacy, and freedom. This is justice and just.

    Conservatives define things by the rules, the laws, etc. while the liberal expands, includes and questions...civil liberties defend the individual's right, even to "go against" the sovereignty of the Stste. That is what makes our country great, freedom and justice for there is recourse in our Bill of Rights...

    What concerns me today, is how postmodernism is being used as 'useful" for pragmatic reasons, and it completely undermines rationale and reason. All groups have equal rights, because culture is the epitome of "truth", not the indiivdual, which undermines human/individual rights...and subverts good government.

    Good government must protect human/individual rigts, such as our Bill of Rights does, otherwise we are headed for some form of dictatorship, as we are "taught" how to be a "good citizen"...communism, facism, or the Taliban...which 'group" type of governance do you prefer?

  5. drm & George,
    I can see how the distinctions aren't clear or are overly reductionistic. I hope in my next post to show how Kahn's model might help explain some interesting political paradoxes. That is, I think his ideas have some interesting facets to them. However, the bigger point is that I'd like to use Kahn to set up a Christian response to torture that transcends the liberal/conservative conversation. Today's post is just a preamble for that soon-to-come post.

  6. There is NOTHING that transcends being evil....unless one wants to superspiritualize the resurrection! Which is absurd, and enough for me to walke the other way, as it is "theologized" suffering..

  7. Alpha errors AND beta errors, Coop. They always come in mismatched pairs.

    The piont here is, I suppose, that you and I may never have to face anything remotely approaching the ticking-bomb scenarios in our own lives (thanks be to God), but some unfortunate souls do. So they have to reckon not only with the uncertainty that concerns YOU, but also with the scale of potential destruction (including innocent life) that concerns OTHERS.

    (Not that the latter does not concern you; of course it does.)

    Even-handedness requires an affirmation of both error types: uncertainty (type 1) and risk (type 2).


  8. BTW, drm, your moral caricature of conservatives borders on slander. I'll choose to assume you didn't mean it that way; I'll also assume it matters to you. qb

  9. Hi qb, not quite sure what you're referring to that "borders on slander". Thanks for your good faith that I didn't mean it and that I do care.

  10. In using "law" in the conservative sense, then, one would "torture" another by supposing to "bring them to Christ". The ends justify the means, as the "gospel" is more important than the human being.

    This is nothing other than spiritual abuse, that uses mean measures to conform or coerce others from the stance of "fear".

    Fear is not the liberal position as liberals understand that there are many ways of understanding truth or faith issues. The only difficulty is when there is fear in those who govern, then there will be a limitation upon academic/personal freedom, as to values that would undermine the "whole"...

    As to sexual mores, I find that these are defined within the confines of marriage. The two people that are involved in the relationship must determine what is of value to thei relationahip. That is not the place for government intervention or Church snooping. Sex is an expression of commitment and love, and not just for precreative reasons. I recognize that this is not the 'standard" of the RC church. But, the assumption is that anything that is pleasurable is forbidden by definition, as there must be a function. God is not extravagant in these eyes. This view is just short of clitrial mutilation.

  11. Oops, the sexual mores pargraph belonged to another response. I had gotten up to take the dog out and "forgot" as I was thinking about the other blog...sorry

  12. For me the problem lies with the torturers' assumption that because the ticking time-bomb torture saves lives, they get to go free. It was justified.

    I can see that there are cases (exceedingly rare) where it can be justified. But that shouldn't mean that the torturer is not held accountable in a legal proceeding. If the torturer said, "yes, this was warranted enough that I'm willing to spend the rest of my life in jail," I'd find it more compelling, particularly if there was a mistake (ie, no real time-bomb).

    For me, the crux of the matter is accountability before the law for sacred acts. And it's usually missing.

  13. Richard and the group:
    Mindful of the fact that we have just past through ‘Holy Week’ and the Passion one must conclude that there is no place in a Modern Democracy for torture. Once one seeks to find it necessary to call in aid a, re or contrived construction of the legal system to justify it you are already going down the wrong path and the consequences simply demeans the citizenry, the Nation and the self.
    ‘He hath shewed thee, O man, what is good; and what doth the lord require of thee, but to do justly, and to love mercy, and to walk humbly with thy God?’ (source?)

  14. Richard,
    I am fascinated by the term "space." In your discussion. I am not sure whether this is a move by your or Kahn but either way I am brought to several questions.

    I understand the use of the term "space" in this context to mean realms or spheres of existence where certain assumption, rules, and "contracts" exist. In this case, your discussion seems to imply that the sphere of sovereignty and the sphere of law only interact on a minimal level. At least from the perspective of the "liberal" "conservative" discussion. In other words, a liberal who buys into an "englightenment/Kantian" ideaology of LAW only interacts with the space of sovereignty on a limited basis and the conservative functions in the opposite way. (In some ways this is helpful because it explains why these two parties are always talking past each other)

    My questions concern whether these spaces ever interact in positive ways in politics? Are these two so totally incompatible that there is no possible communication among them? I dont see this as a viable explanation because at their cores, even these spaces have common assumptions about how the world works. Whats your take? Or Kahn's? Can these sphere's interact in positive ways?

  15. Crystal, I was thinking of the exact same essay. I'm sure I read it when you linked to it.

    Are some things still worth dying for? Is the American idea one such thing? Are you up for a thought experiment? What if we chose to regard the 2,973 innocents killed in the atrocities of 9/11 not as victims but as democratic martyrs, “sacrifices on the altar of freedom”? In other words, what if we decided that a certain baseline vulnerability to terrorism is part of the price of the American idea? And, thus, that ours is a generation of Americans called to make great sacrifices in order to preserve our democratic way of life—sacrifices not just of our soldiers and money but of our personal safety and comfort?When Wallace presents this option, it becomes obvious that there aren't these two worlds of law and sovereignty, where you must act nicely and politely in one and must kill and torture in the other. Instead, with terrorism, there is a genuine, overarching conflict of interest between my obligation to protect my fellow citizens and my obligation to protect the ideals of liberty and human rights. This conflict exists not in two realms, but /within/ the conflict of allegiance to the United States of America, because the idea of "the United States" comprises both people and ideas. Choosing one may hurt the other, but that's the nature of moral dilemmas. You can't get out unscathed.

  16. Richard, qb, Crystal, Matthew, Frank,

    Once again, I think the ticking time bomb illustration is a false dilemma designed to protect a theory justifying a practice. The level of plausibility is almost non-existent. It appeal is to fear, to a worst case scenario, but hardly a legitmate fear. As the lawyers say: "Hard cases make bad law."

    It seems to me, finally, the same attitude as that of Caiphas as reported in the Gospel of St. John: "Ye know nothing at all, Nor consider that it is expedient for us that one man should [be tortured] and die for the people. . . ."


  17. Sandy,

    Thanks for the reference. I haven't read it yet but will.


    What I suspected: all along we were missing it--the ticking time bomb has to do with SEX!


  18. Coop, thou hast verily laid an egg. "False dilemma?" Just today we have the following account:

    Note particularly the CIA's tight restrictions on the use of waterboarding, high-value targets, credible evidence of imminent/large-scale loss of life, running out of time to prevent, etc.

    Not that qb's necessarily an enthusiastic proponent of it (the practice is horrifying), but at very least, one supposes that you could be fair-minded enough to admit that the "ticking time bomb" is perhaps more relevant today than ever, and that our elected officials deserve a little bit of credit for having a heart that can anguish over stuff like this...rather than smugly hiding behind the freedom from such terrifying responsibility that the ordinary citizen enjoys 24-7.


  19. drm, this is the near-slanderous snippet to which qb objected:

    "I guess that for these 'conservatives', nothing we do could fall under the category 'war crime' - almost by definition."

    But maybe you intended that as hyperbole.


  20. qb, they waterboarded him 183 times in one month - after obtaining all the information he knew. That's neither effective nor limited. The purpose of torture is torture. Always has been. The post facto justifications ring shallow to me.

    I'm still not sure what is "near-slanderous" about the statement:

    "I guess that for these 'conservatives', nothing we do could fall under the category 'war crime' - almost by definition."

    I say "I guess", because I don't know, but seeing people who were shocked and appalled by the revelations of, Abu Ghraib, say nothing or make moves to defend it when it comes to light that the abuses there - and worse - were official government policy.

    To see the argument being made, "we're not as bad as Al Qaeda" - as if that is the determining factor of our moral code - yes, it continues to outrage me, and I continue to be unable to comprehend it.

    As for the article from CNSNews:

    'Several U.S. intelligence officials played down the relative importance of the alleged plot and attributed the timing of Bush's speech to politics. The officials, who spoke on the condition of anonymity because they did not want to publicly criticize the White House, said there is deep disagreement within the intelligence community over the seriousness of the Library Tower scheme and whether it was ever much more than talk. One intelligence official said nothing has changed to precipitate the release of more information on the case. The official attributed the move to the administration's desire to justify its efforts in the face of criticism of the domestic surveillance program, which has no connection to the incident.
    Bruce Hoffman, a terrorism specialist who heads the Washington office of Rand Corp., said Bush's account adds some interesting detail to the Library Tower episode. But he said it still leaves key questions about the case unanswered.
    "It doesn't really give us any more indication of whether this was a plot that was derailed or preempted, or a plot that was more in the realm of an idle daydream," Hoffman said.'
    -SourceI recommend the article The American Public has a Right to Know That They Do Not Have to Choose Between Torture and Terror, an interview in Harpers with Matthew Alexander, the military interrogator whose interrogations helped the US locate and kill Zarqawi, and author of How to Break a Terrorist.

    A couple choice bits:

    "In Iraq, we lived the "ticking time bomb" scenario every day. Numerous Al Qaeda members that we captured and interrogated were directly involved in coordinating suicide bombing attacks. I remember one distinct case of a Sunni imam who was caught just after having blessed suicide bombers to go on a mission. Had we gotten there just an hour earlier, we could have saved lives. Still, we knew that if we resorted to torture the short term gains would be outweighed by the long term losses. I listened time and time again to foreign fighters, and Sunni Iraqis, state that the number one reason they had decided to pick up arms and join Al Qaeda was the abuses at Abu Ghraib and the authorized torture and abuse at Guantanamo Bay. My team of interrogators knew that we would become Al Qaeda's best recruiters if we resorted to torture. Torture is counterproductive to keeping America safe and it doesn't matter if we do it or if we pass it off to another government. The result is the same. And morally, I believe, there is an even stronger argument. Torture is simply incompatible with American principles. George Washington and Abraham Lincoln both forbade their troops from torturing prisoners of war. They realized, as the recent bipartisan Senate report echoes, that this is about who we are. We cannot become our enemy in trying to defeat him. (...)"

    "I convinced the man who led us to Zarqawi to cooperate after only six hours of interrogation using a relationship-building approach. The old methods of interrogation had failed for twenty days to convince this man to cooperate. The American public has a right to know that they do not have to choose between torture and terror. There is a better way to conduct interrogations that works more efficiently, keeps Americans safe, and doesn't sacrifice our integrity. Our greatest victory to date in this war, the death of Abu Musab Al Zarqawi (which saved thousands of lives and helped pave the way to the Sunni Awakening), was achieved using interrogation methods that had nothing to do with torture. The American people deserve to know that." [emphasis mine]


    "The number-one reason foreign fighters gave for coming to Iraq to fight is the torture and abuse that occurred at Abu Ghraib and Guantanamo. The majority of suicide bombings are carried out by foreign fighters who volunteered and came to Iraq with this motivation. Consequently it is clear that at least hundreds but more likely thousands of American lives (not to count Iraqi civilian deaths) are linked directly to the policy decision to introduce the torture and abuse of prisoners as accepted tactics. Americans have died from terrorist attacks since 9/11; those Americans just happen to be American soldiers. This is not simply my view -- it is widely held among senior officers in the U.S. military today. Alberto Mora, who served as General Counsel of the Navy under Donald Rumsfeld, testified to the Senate Armed Services Committee in June 2008 that "U.S. flag-rank officers maintain that the first and second identifiable causes of U.S. combat deaths in Iraq -- as judged by their effectiveness in recruiting insurgent fighters into combat -- are, respectively the symbols of Abu Ghraib and Guantanamo." We owe it to our troops to protect them from terrorist attacks by not conducting torture and we owe it to our forefathers to uphold the American principles that they passed down to us."

  21. qb,

    No, I don't not think the illustration is more relevant recently than it ever was. Quite frankly, the odds are against even the best "intelligence" operatives ability to predict the future--except in general outline. Rethink Caiphas.

    And yes, I can be smug--and I might threaten pain but would not torture. I have heard too many stories from my combat Veterans.


  22. I'm fascinated to see where this is going, although I think Khan may have misunderstood the enlightenment project. The whole point is that LAW is the new location of sovereignty. That is LAW has control over all areas of life. Hence the drive toward international law, human rights, war crimes etc... all an extension of the enlightenment project to ensure the sovereignty of law EVERYWHERE.

    The enlightenment project is very liberal. And liberals are right to abhor conservative arguments that want to place sovereignty or allegiance outside the realm of law because it IS medieval. It IS against the very foundation of our nation and modern secular society.

  23. drm,
    I think it is hard to define the "conservative position on torture" as so much of this debate has become politicized. Same on the Left. That is, so much of this debate is tied up into feelings about W and Cheney that it's hard to get a reasonable conservation out of people.

    I hear your concerns about the ticking timebomb. Most of these "moral dilemmas" seem to pit a Darwinian survival instinct (for self and loved ones) against some moral value. I guess to prove that, in the end, we are just survival machines. The point of that conclusion? I'm not sure.

    You make an interesting connection between faith and torture. Kahn argues, that since torture is in the "location" of sovereignty, torture is always a religious act. That is, when we see torture we are seeing a war between faiths. Thus, Kahn notes that it is not surprising that torture should enter American life because of the clash between Islam and the Christian faith of the last President.

    Thanks so much for that link. I now I'm going to miss DFW's voice in the years to come. His essay is close to the move I'm going to make (mine will be religious) in the final post.

    I'm been thinking about your comment (and others here). That is, how does morality populate the spaces of law and sovereignty? As drm notes, there are war crimes. Here's what I think Kahn would say. Morality tends to end at the border of the tribe (sovereignty). A person might disagree with that. They might argue that Americans aren't in a special moral class. But Kahn would argue that if you make that move you've nullified the notion of American sovereignty (in your own heart and mind). American is no longer a god for you. You wouldn't kill for America. America is no longer sacred.

    This is, btw, the problem conservatives have with liberals. It appears that liberals are making this move. Thus, they "don't love America." A liberal Christian might not mind being painted with that brush but an American politician is in a tricky place. How to be hard on terror but stay true to American values? That is the debate Obama is having with Cheney as we speak.

    I think, if I'm reading you right, I'll be converging upon your position. That is, to argue about torture with political, legal or moral categories tends to be non-productive. The issue is one, per the title of the posts, one of allegiance.

    I think you've summarized Kahn's position accurately. "Space" is his word.

    To your question, I would say the two spaces interact positively all the time. Actually, in Part 2 (which I posted yesterday) I take about the interactions of the Declaration and the Constitution. How one document creates the Union and the other orders it. So only in extreme cases will the two spaces show their different logics.

    I think your comments paint the issue for the Christian in clear terms: How should followers of the Sermon on the Mount relate themselves to state violence? Particularly when they are complicit in that violence and benefit from it?

    I see your point. A big part of Kahn's project is to show that that vision of the Enlightenment is too utopian. I think he sees your objection clearly, he just disagrees with it. His view is pretty Hobbesian. For my part, I see points on both sides.

  24. Richard,
    Any faith tradition is an attempt at grasping the universal god. but since we cannot, then, we usually think of our own contextually bound view as the universal. I write more today on my blog site.

  25. tortue is an act of faith"?

    faith in one's understanding and the need to protect interests one values...that is what it is all about.

    realistically, even though we have dreams, the real world functions on "survival", as we have to be self-interested if we love to survive. This is why social contract and laws are of importance, as it can benefit both parties, when there is openness of objectives and negotiation as to "needs". That is civility, otherwise, we will survive through terrorism, because we "fear"...

  26. Be careful with your "Republicans torture" and "Cheney is the Devil" rhetoric. Nancy Pelosi and the Senate Dems on her committee knew about this all along. If we're going to have a meaningful debate on this issue, certain factions will have to come to grips with the fact that they can't blame every policy they didn't like on big bad Bush. The Democrats don't even have plausible deniability on this one. Perhaps torture is worth saving the lives of the people who would have been victims of the California attacks; perhaps it isn't. These are tough choices, and unfortunately the blood is on everyone's hands no matter which way you go. To say either party didn't know this was going on and wasn't complicit in it is simply irrational.

  27. It seems that this argument has missed an essential point. That is that liberal morality only exists because war has been waged to protect the freedom to be impudent. The Age of Reason can only exist at the behest of a leviathan army. Therefore, liberal morality is specious as it seeks to distance itself from the violence that protects it. In fact, it seeks to deny the violence that gave birth to it. I can only conclude that our libertarian society has been criminally erected, on the blood of centuries of war, which is of itself, immoral.

    By implication social conservatives are immoral but liberals are charlatans.

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