One is tempted to ask Jay Bybee: What part of “no” don’t you understand? Is it the “n” or is it the “o”? Bybee was an Assistant Attorney General of the Justice Department, the man who gave the CIA the green light to use waterboarding and several other nasty techniques. The artful way of escaping this dilemma, adopted by Mr. Bybee, was to find that (1) the CIA did not intend to inflict severe physical or mental pain or suffering; it had other, more lawful intentions; and (2) so carefully, indeed artfully, parsing the concept of pain and of suffering that, miraculously, the actual effects of waterboarding (it makes you feel as if you’re drowning) don’t quite measure up to the definitions of 18 U.S.C.—or so at least Bybee argues. If you wish to read the memorandum yourself to check on my veracity, you can begin on this site. The item to download is labeled as “A 18-page memo, dated August 1, 2002, from Jay Bybee, Assistant Attorney General, OLC, to John A. Rizzo, General Counsel CIA.” Finally a footnote to the definition above: the parenthetical phrase refers to such things as capital punishment.
[A]n act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody of physical control.
Having laid this out, I’m not going to say too much more about this business except to point out that the Administration’s acrobatics, turning itself into a pretzel to get around the law, was done for a “worthy cause.” That cause is the security of the United States and the prevention of another terrorist attack. That is the “end” for which “torture” is the means. And it’s that relationship I want to examine.
The more I pondered that relationship—and why it is both misunderstood, misstated on the Internet in discussion forums, and ignored in legal tight-rope walking—the more puzzled I became—until the actual solution to this problem hit me. But before I go there, I want to point out what I stumbled upon on the way. One is that the phrase is understood by young people in a reverse formulation: “the end justifies the means.” I found a site where this very concept was being stoutly defended, although, to be sure, by what sounded like teenagers. In slightly more adult discussions, the emphasis of the argument is on the nature and grandeur of the end. The glorious end is then allowed to shed its radiance backward, haloing whatever kind of action is sincerely undertaken for the noble cause. It does not surprise me, therefore, that senior senators will actually use the same argument, not quite as bluntly of course, but in circumlocutions. For a sample of such a presentation, I would suggest you check out this interview on PBS’ NewsHour aired April 22, 2009 and available in transcript here.
Now for my insight. The reason it didn’t come to me at once is because I hold, as a matter of habit, an old-fashioned concept of truth. And the insight, really, is that many people must not. The fundamental issue that illuminates the end/means argument is that there is such a thing as absolute truth. Some things are simply wrong, and they are wrong in an absolute and not merely in a relative sense. In the modern usage, including the way senators and teenagers approach this subject, an act, a means, is neither right nor wrong, not on the surface, not out of the box. You have to ask what the circumstances were. If the means served some noble end, its character undergoes a change. If it serves some low or indifferent end, then it may seem loathsome. This is moral relativism, and it seems to be widespread—not because the public is malevolent but merely because it’s ignorant.
The final point that I think must be made is that any kind of absolute truth also implies a hierarchical order in the entire universe, hence demands that there be a God. If the prevailing worldview is very fuzzy about such a being, the public's morality will eventually become quite blurred. The public will instinctively adopt a stand-in for the highest value, typically choosing the political collective. This view will be interestingly self-centered, so that waterboarding captured Muslims will be far more acceptable than waterboarding CEO’s of too-big-to-fail financial institutions. But I’d better curb my lower instincts here and stop.