I've pondered for years what to say about the Bush administration's use of torture in the years after 9/11. So far I've remained quiet about the issue because I'm so uneasy about it -- not just about what the United States has done, but also about the reactions of nearly everyone who has commented on it. On one side, the right mocks those concerned with our actions in that insufferably smug, proudly parochial tone that has marked nearly all conservative commentary about foreign affairs for the past seven years. As far as the right is concerned, we haven't tortured anyone, even though the definition of torture accepted by liberal-democratic nations around the globe (including the United States until the day before yesterday) clearly tells us that we did.
Meanwhile, on the other side, critics (often but not always on the left) work themselves into an indignant rage. I share much of their disgust as well as the conviction that torture rarely works as a means of procuring information. At the same time, I find much of their fury -- like their tendency to describe senior members of the Bush administration as war criminals -- much too easy. The United States did not engage in torture because the Vice-President's office and the Justice Department under Bush were populated by sadistic would-be totalitarians. On the contrary, we engaged in torture for reasons deeply rooted in the troubling nature of politics itself.
In thinking through the complicated issues surrounding torture, I've looked for guidance to none other than Leo Strauss. My own views about Strauss and his influence in the United States are ambivalent, as you can see here. But I think he's at his strongest in discussing what he called the "permanent problems" of politics. This is especially true of pages 156-164 of Natural Right and History, where he examines the complexities involved in thinking about political life in moral terms.
Strauss begins by noting that Aristotle (in Book 5 of the Nicomachean Ethics) asserts, with little explanation, that natural right is changeable -- in other words, that standards of what is right and wrong vary from time to time and place to place. According to Strauss, this claim follows not from historical relativism but rather from the multi-faceted and ambiguous character of political morality itself. Simply put, political morality sometimes means commutative and distributive justice (what the parts of the political community deserve or are owed according to commonly accepted standards of fairness), while at other times political morality means the common good (what is required for the political community as a whole to survive and thrive).
Under normal circumstances, the two parts of political morality cohere enough that the tensions between them rarely show themselves. But in extreme situations -- situations in which (in Strauss's words) "the very existence or independence of a society is at stake" -- there may be "conflicts between what the self-preservation of society requires and the requirements of commutative and distributive justice. In such situations, and only in such situations, it can justly be said that the public safety is the highest law."
This, in Strauss's view, is what Aristotle meant when he asserted that natural right is changeable. Under normal circumstances, the common rules of political morality tell us that torture is simply wrong. (The example of torture is mine; Strauss focuses on espionage.) But in a sufficiently extreme situation -- when faced with an "an absolutely unscrupulous and savage enemy" -- torture may become not merely a permissible evil but a positive good that is necessary to fulfill the highest law of political morality (which is the defense of the common good).
At this point, Strauss attempts to distinguish Aristotle's subtle and supple understanding of the mutability of political morality from the similar but morally distinct views of such writers as Machiavelli and Carl Schmitt. These latter authors take their bearings "by the extreme situations in which the demands of justice are reduced to the requirements of necessity." They also seem to "derive no small enjoyment from contemplating these deviations" and are unconcerned "with the punctilious investigation of whether any particular deviation is really necessary or not." (This pretty much exactly describes the way the question of torture is handled by several writers at NRO's The Corner and by Abe Greenwald at Commentary's Contentions blog.) An Aristotelian statesman, by contrast, "takes his bearings by the normal situation and by what is normally right, and he reluctantly deviates from what is normally right only in order to save the cause of justice and humanity itself."
But the need for statesmen to make a decision about when to deviate from what is normally right creates a massive problem for decent politics in dark times. As Strauss writes,
There is no principle which defines clearly in what type of cases the public safety, and in what type of cases the precise rules of justice, have priority. For it is not possible to define precisely what constitutes an extreme situation in contradistinction to a normal situation.
In the end, the statesman needs to rely on his judgment -- on what Aristotle called practical wisdom (phronesis) and President Bush (and Stephen Colbert) called his "gut" -- in making the decision about whether and when and for how long and in what ways to deviate from what is normally right in order to "preserve the mere existence or independence of society" against its mortal enemies.
We all know what President Bush and his advisors decided. In the wake of 9/11, they (along with writers such as Charles Krauthammer) judged militant Islam to be an existential threat to the United States. And an existential threat is perhaps the clearest example of a case in which normal justice has to give way to the preservation of the common good at all costs. If we were truly confronting an existential threat -- a perpetual undetected ticking time bomb -- then it would have been immoral for those responsible for defending the common good of the United States not to torture a high-ranking al-Qaeda operative such as Abu Zubaydah in order to extract every last bit of information from him. (Even if torture rarely works, the fact that it sometimes does would be quite enough to justify its use in a genuinely dire situation.)
Judging the justice of the Bush administration's policies on torture thus requires answering a single (extremely difficult) question: Was the administration right to believe that militant Islam posed (and perhaps still poses) an existential threat to the United States? If the answer is yes, then its policies may very well have been justified and even demanded by the circumstances. If the answer is no, then its leading officials may well have been guilty of bending or breaking the law for no good reason -- most likely out of a combination of ignorance, fear, and paranoia.
So what's the answer? In the months following 9/11, I certainly thought another spectacular attack was imminent and seriously pondered the possibility of a nuclear detonation in New York City (where I worked, about two miles from Ground Zero) or Washington -- an event that would not only kill hundreds of thousands if not millions in an instant but also wipe out trillions of dollars of wealth and spark panic in cities around the world. Urban civilization itself seemed under threat.
Seven-and-a-half years later, such fears seem delusional, no doubt in large part because there have been no more attacks on the United States. Is that because the Bush administration's much-derided policies thwarted attacks that would have otherwise been carried out? Or is it because the threat was never as great as the administration feared it was? The truth is that I have no idea. And neither does anyone else writing on the topic. President Obama probably knows somewhat more, because he receives classified intelligence briefings. But we all know how unreliable those can be.
Ultimately, the retrospective view is the only one that can settle the question of whether a statesman's decision to contravene normal justice was truly moral (i.e., necessary to defend the common good). Someday, when our conflict with militant Islam is over, historians with access to information on both sides -- in Washington, but also in the Middle East and the borderlands between Afghanistan and Pakistan -- may be able to reach something approaching a definitive answer. But until then, we will have to settle for partial information and uncertainty about the Bush administration's actions -- just as we must resign ourselves to living with uncertainty about whether the Obama administration is right to reverse the more aggressive approach of his predecessor.
(Disclaimer: In drawing on Leo Strauss's ideas in this post, I do not at all mean to contribute to the inane debate about Strauss's influence Bush administration policy. In my view, Strauss provides an insightful analysis of the nature of political life in general. If his analysis helps us to make sense of recent events, then that confirms the worth of the analysis. It doesn't tell us that the analysis produced or inspired the events, at least without quite a bit of additional evidence of influence.)