Killing and the Wrongness of Torture

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Killing and the Wrongness of Torture

David Decosimo Boston University

Abstract: How can just warriors prohibit torture absolutely while still allowing that killing

can be just? The best arguments for torture’s wrongness and impermissibility seem to suggest that killing too is always wrong. If torture is wrong because it attacks imago Dei, why isn’t killing too – for killing seems at least as much an attack as torture? This question, which seems to force a choice between pacifism or countenancing “just torture” alongside just war killing, has scarcely been asked in Christian ethics. Among the only Christian ethicists to address this question, Nigel Biggar and Darrel Cole have leveraged these issues to argue for torture’s permissibility. Against such views, this essay shows why torture, but not killing, is always wrong, what distinguishes it from just war killing such that it but not killing should be categorically prohibited. I elucidate three features that distinguish torture from just war killing and establish it as always wrong: its intention and proximate end, its violating as opposed to destructive character, and its context of domination. I conclude by showing how these features are illustrated and exemplified by practices documented in the 2014 U.S. Senate report on torture.

How can just warriors prohibit torture absolutely while still allowing that killing can be

just? The best arguments for the wrongness and absolute impermissibility of torture would seem to

suggest that killing is likewise always wrong. If torture is wrong because it attacks imago Dei,

assaults dignity, violates autonomy, and so on, it’s very hard to see how or why killing too is not

always wrong. For killing of any sort, let alone the brutal killing of the battlefield, seems at least as

damaging to humans as does torture. If anything, it seems more damaging, for while someone might

recover from even the worst torture, killing forecloses that possibility absolutely. Why then should

the one but not the other be prohibited? That’s the question at the heart of this essay.

In Christian ethics, it’s a question that has not only gone unanswered, but almost entirely

unasked.1 Yet failing to address it leaves just war theorists facing an unsavory choice. Either they

can oppose torture but will need to categorically prohibit killing as likewise assaulting imago Dei.

Or they can hold just war killing permissible but will need to concede that, like it and under similar 1 There are, in contrast, numerous attempts in Christian ethics to address torture or torture’s wrongness more generally. Along with works cited below, see, e.g., Torture is a Moral Issue, ed. George Hunsinger (Grand Rapids: Eerdmans, 2008) and Religious Faith, Torture, and Our National Soul, ed. David Gushee (Macon: Mercer University Press, 2010).


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constraints, torture too is sometimes licit. Darrel Cole, for instances, poses just these alternatives.

Urging the latter, he asks just warriors to support “just torture,” proportionate torture of the wicked

to save innocents.2 On similar grounds, Nigel Biggar advocates for the permissibility of “sleep

deprivation, hooding,…stress postures, severe…depravation of food and water” and even

waterboarding.3 I find neither pacifism nor torture acceptable, so this essay is an effort to say why

torture but not killing is always wrong, what so distinguishes it from just war killing that it but not

killing should be prohibited.4

As I see it, killing is an act morally neutral in kind (ex genere) that becomes good or evil on

the basis of the act’s intention, agent, circumstances, and so on. It is not something against which

there is a presumption, nor a wrong permitted or excused in view of a greater good to be gained or a

worse evil to be suffered. The view of just war and killing I sketch here finds its roots in Aquinas

and figures like Johnson, Ramsey, and Anscombe.5 Yet the problem I address confronts any who

regard killing as sometimes permissible but torture as never so. Thus, realists who oppose torture

2 Darrel Cole, “Torture and Just War,” The Journal of Religious Ethics 40.1 (2012): 26-51. 3 Nigel Biggar, “Individual Rights versus Common Security? Christian Moral Reasoning about Torture,” Studies in Christian Ethics 27.1 (2014): 14, 13. “If…the waging of war may be justified, it is not immediately obvious why some forms of torture are not,” 4. Biggar groups waterboarding with stress positions over against “sadistic” torture, which he rejects, 13. Biggar calls the torture he allows “aggressive interrogation.” 4 In an article entitled “Just War and the Impermissibility of Torture” I pursue a distinct response on exclusively just war grounds. 5 See, e.g., G.E.M. Anscombe, Ethics, Religion and Politics (Oxford: Basil Blackwell, 1981), Paul Ramsey, The Just War: Force and Political Responsibility (New York: Scribner, 1968), and James Turner Johnson, Morality & Contemporary (New Haven: Yale University Press, 1999) and “Just War, as It Was and Is," First Things 149 (2005): 14-24. On Thomistic act specification see, e.g., Joseph Pilsner, The Specification of Human Actions in St Thomas Aquinas (Oxford: Oxford University Press, 2006), Stephen Brock, Action and Conduct (Edinburgh: T&T Clark, 1998), and David Decosimo, Ethics as a Work of Charity (Stanford: Stanford University Press, 2014), esp. chapter 7 and p. 187-88 and 309n.28. No act as performed is morally neutral for Thomas, but some acts-types are, taking their moral species on the basis of the agent’s intention, circumstance, etc. (e.g. ST I.II 18.2 and 7-9). On Aquinas regarding killing an act neutral in kind, see, e.g., Scott Davis, Believing and Acting: The Pragmatic Turn in Comparative Religion and Ethics (Oxford: Oxford University Press, 2011): 162-73.


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must say why it does not number among lesser evils one must sometimes do.6 And, presumption-

against-killing just warriors will need to say why the prohibition against killing can be overridden,

whereas that against torture is absolute.7

While this challenge belongs to all who reject torture while regarding some killing just, my

explication of torture’s wrongness hangs on commitments – to Thomistic act specification, evil’s

impermissibility, and killing’s moral neutrality – that I find hard to square with realist and

“presumptivist” perspectives. While many have tried to say what makes torture wrong, my aim is to

show why its wrong-making features are not shared with just war killing, how torture is saliently

unlike just war killing. We proceed in three steps: elucidating intention and proximate end; showing

that like rape and unlike killing, torture is a matter of violation more than destruction; and showing

how torture, like slavery and unlike killing, implicates domination. First, though, we turn to Cole

and Biggar to further clarify the challenge itself and to answer an objection that denies there is even

an issue here.

The Problem

Exclusively considering interrogation to protect innocents, Cole claims that the best

arguments against torture, especially those that regard it as wrong for attacking imago Dei, entail

6 Some realists may not regard intentional killing evil, but most do. See, e.g., Reinhold Niebuhr, Love and Justice: Selections from the Shorter Writings of Reinhold Niebuhr, ed. D.B. Robinson, (Louisville: Westminster/John Knox Press, 1992). 7 For representative presumption-against-killing statements, see, e.g., James Childress, “Just-War Theories: The Bases, Interrelations, Priorities, and Functions of their Criteria,” Theological Studies 39.3 (1978): 427-45, “Nonviolent Resistance: Trust and Risk-Taking' Twenty-Five Years Later” Journal of Religious Ethics 25.2 (1997): 213-20; Ralph Potter, “Moral Logic of War” McCormick Quarterly 23.4 (1970): 203-33. For bibliography and commentary, see, Nahed Zehr, “James Turner Johnson and the ‘Classic’ Just War Tradition” Journal of Military Ethics 8. 3 (2009): 190-201 and Matthew Shadle, “The Debate Over Presumptions in the Just War Tradition,” Journal of the Society of Christian Ethics 32. 2 (2012): 133-152. Rejecting the “classical” readings of Thomas, killing, act specification, and war advanced throughout this essay, “presumptivists” need to offer their own account of the torture/just war killing distinction, should they wish to consistently proscribe torture.


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that killing is wrong too.8 Since it is no less an attack than torture, either killing should be likewise

banned or else both ought sometimes to be permitted. He urges the latter: like killing, torture is just

under certain contexts and constraints.

For Biggar too the justice of killing in war entails that torture is sometimes permissible and

even obligatory.9 “If it can be morally right to shoot…an enemy,” he asks, “why can it not be right

to subject a terrorist to…waterboarding?”10 Whatever waterboarding and like assaults may do to the

victim does not make them wrong.11 “The damage…torture involves [is] not…necessarily and

obviously graver than [that] permissibly inflicted [in battle].”12 Since one can justly inflict such

harm in battle one can justly inflict it through torture to protect innocents.13

I disagree with Cole and Biggar concerning their conclusions. But I agree that extant

accounts of torture’s wrongness are insufficient, either failing or else succeeding only at the price of

implying that killing is likewise wrong.14 Cole surveys numerous figures to establish this point. For

our purposes, two examples suffice.

8 Prudence allows one to judge how much and what sort of torture is proportionate, so that, like just war killing, the act is licit and even praiseworthy, Cole, “Torture and Just War” 27, 38-40, 46-48. The torture Cole envisions includes things like waterboarding, severe beatings, and electrocution. “Coercive interrogation” represents the least serious torture he advocates, 43, 44, 44n.9. 9 “Individual Rights,” 11. 10 Ibid., 11. 11 “In extremis,” he concludes, “it might be morally obligatory to interrogate someone aggressively” – note the claim concerns obligation, not permissibility, Ibid., 20. The practices in view are those recently practiced by the U.S. 12 Ibid., 11. 13 Ibid., 16. 14 I agree with Biggar that it is a weakness of accounts of torture’s wrongness that they tend to elide distinctions between the most gruesome forms of torture and what Biggar calls “aggressive interrogation” and others call “torture lite.” Elsewhere, I tend to the latter’s distinctive wrongness. I disagree with Biggar in terms of where waterboarding fits on the spectrum. I also regard his distinction as both inadequate – we need more distinctions than just that between the most gruesome forms and torture lite – and problematically formulated. Specifically, he uses the presence and absence of sadism to fund his distinction, but: (a) sadism may just as well be present in torture lite or non-torturous acts as in the most gruesome forms; (b) sadism is present in any number of acts that aren’t best described as torture; (c) sadism may be entirely absent from gruesome torture. Often, his distinction itself is ambiguous between relying on: (i) the absence or presence of


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Thus, Jean Porter, whom Cole and Biggar both treat, roots her important account of torture’s

wrongness in its status as attacking imago Dei, conceived in terms of “rational freedom” and related

capacities.15 Torture is absolutely prohibited, she says, “because of the direct and uniquely terrible

way in which it assaults the image of God within the human person.”16 Yet, even as Porter notes

that killing is sometimes legitimate and concedes that an argument like that which shows certain

killings just might be adduced for torture, she does not explain why such an argument must fail,

why torture too cannot be just.17 Torture can destroy a human’s agency, she says, but she does not

explain how or why killing does not do the same, and even more absolutely. For the attack that

annihilates a person seems at least as destructive as the attack that is torture – and, in its irrevocable

finality, more devastating still.

sadism; (ii) something like a gruesome/non-gruesome distinction; and (iii) sadistic vs. intelligence-seeking ends. 15 Porter, “Torture and the Christian Conscience: a Response to Jeremy Waldron,” Scottish Journal of Theology, 61 (2008): 340-58, 349. Porter insists that all humans, including those incapable of exercising or realizing rational freedom are equally possessed of imago Dei and immune from attacks on it (349). But it’s uncertain whether this rational freedom/imago Dei link withstands scrutiny. Thus, to the extent that those who seem not to realize or possess rational freedom nonetheless count as possessed of imago Dei one wonders what the account of rational freedom and its purported connection to imago Dei, adds to the bare insistence that every human, qua human, possesses imago Dei. It can seem doubtful that rational freedom is what’s most salient about imago Dei when it comes to torture, for it’s difficult to see how torture could be wrong in virtue of assaulting rational freedom if we suppose torture wrong in cases where victims seems to lack rational freedom. In the worst case, the alleged rational freedom/imago Dei link endangers those who cannot realize rational freedom by causing us to question whether they really possess imago Dei. On the other hand, placing rational freedom at the core of an account of torture’s wrongness may overlook the degree to which that freedom is, in our society, constantly attacked by cultural forces that seek to transform us into, say, mindless consumers. Thus, the real life Don Draper whose barrage of advertisements would target the tween with the aim of co-opting his desires and identity in order to extract profit seems to levy a pernicious attack on rational freedom, an effort to break down and reconstruct the self at its developmentally most vulnerable. Even if we regard such efforts as evil, surely we should not regard them as torture, notwithstanding the degree to which they would assault or undermine rational freedom. But then it is not unreasonable to ask why and how torture counts as a radically different attack and one to be universally proscribed. 16 Ibid., 354. 17 Ibid., 345, 354.


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Or take David Gushee’s The Sacredness of Human Life.18 While Gushee seeks to resolve no

less than seventeen puzzles concerning the ethics of humanity’s sacredness over the book’s 400

pages, his consideration of why torture but not killing should be banned absolutely amounts to three

inconclusive sentences. “Some violations of human beings can…be as bad or worse than murder…

Sadistic, extended torture,” he says, “is a very good example.”19 Yet there’s no explanation of why

torture but not killing should be regarded such an attack on sacred value as to be absolutely

proscribed. Yet if Porter and Gushee are noteworthy here, it is only in saying more than most.

Indeed, one is hard-pressed to find further consideration amongst other Christian ethicists. As much

as these and others show how torture attacks imago Dei, they do not show that or how killing fails

to and thus why it but not torture is sometimes allowed.20 This is the challenge I seek to address.

Two more points underline it. First, given the choice between being killed or tortured many

would choose torture. No doubt some take this to support the Cole/Biggar view. Second, many past

theologians who held humans to be created imago Dei saw torture as licit.21

18 David Gushee, The Sacredness of Human Life (Grand Rapids: Eerdmans, 2014). 19 Ibid., 51-52. The sentence continues: “of a violation of a human being that can be worse than simply killing a person.” (Note the slippage – in the first sentence torture can be worse than murder; in the second, worse than simply killing.) Gushee notes that this is why torture but not killing is universally banned by law, but it remains mysterious why the one but not the other is such an attack on sacredness as to be so banned. Gushee’s ambiguity relative to ethics of killing, his refusal to identify with pacifism nor explicitly to declare killing sometimes permissible, may stem from lack of analysis surrounding this issue. 20 Porter declares the goods torture attacks inviolable and more weighty than any common good in pursuit of which we might be tempted to allow the state to torture, but she does not explain why killing is not equally such an attack and so absolutely impermissible, “Torture and Conscience,” 354-57. Her argument against torture here, that the “power of the nation-state must be limited…to be tolerable,” 355 and that “it is intolerable that the nation-state should turn its tremendously concentrated power against the individual…to undermine and destroy [her] capacities to function as a rational creature…by assaulting the psyche itself” could seems equally an argument against state-sponsored killing. Does not a missile fired against a militant in the early stages of the Afghanistan war represent the focusing of the state’s “tremendously concentrated powers against the individual”? Porter’s suggestion that part of the issue is, instead, the targeting of the “psyche” points in a more promising direction. 21 Thus, Augustine held that “in the vast network of…creation…where not a leaf…is created without a purpose, no human…of any kind could be superfluous,” and allowed for torture. On Free Choice of the Will, trans. Thomas Williams (Indianapolis: Hackett), 116. And on church-sanctioned torture see, e.g., Jordan Bishop, “Aquinas on Torture,” New Blackfriars 87.1009 (2006): 229-37.


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Intention and Torture’s Proximate End

Intention is an enormously complex topic. Our concern is chiefly with what it means to have

something as a proximate end and especially with ruling out views that deny the presence of torture-

constituting ends.22 This denial is underwritten by a focus on more remote ends to the suppression

or denial of more immediate or proximate ends.

An intended end is that to which some means are ordered.23 To intend some end is to

undertake action with a view to bringing it about. It is to order action to it, to try for it. Intention is

as public as language, and like language, something without which we are unintelligible to one

another.24 If an end is terminus to some means, a set of means is a course of conduct chosen, in part,

for this end. Intention talk cannot be divorced from reason-giving – it concerns our capacity to

answer “why?” questions about what we did, where our answers give reasons for our so acting. The

intended end gives us reason for choosing and pursuing some means, reason to act.

Now, ends can be ordered to still further ends, so that we can distinguish between ends that

are proximate and ends that are remote. A proximate end ordered to some more remote end is itself

a means. So, I chop wood to make a fire to warm a house for a party. Axe-swinging is ordered as

means to my wood-chopping end. And wood-chopping is means to the more distant house-warming

end. I may hate wood-chopping and weep as I chop. I may wish things were otherwise or prefer to

take a jog. But for all this there’s no question about my intention: I will to swing the axe and intend

to chop.

22 My account of intention is indebted to Aquinas and Anscombe, Intention (Cambridge: Harvard University Press, 2000). 23 Aquinas, ST I.II 12.1 ad 4 and see note 5 and Brock, Action and Conduct, 90-93. Thomas often uses “end” (finis) and “object” (objectum) interchangeably in this context (e.g. I.II 72.3 ad 2 and 73.3 ad 1). On the possibility of slightly different valences in the terms, see Pilsner, Specification, 239-41, but such a distinction (if there is one) needn’t concern us here. 24 Moreover, as language use and perception are conceptual but not necessarily inferential, so it can go for intention. For some act to be intentional we needn’t be self-conscious such that we are aware that we are doing it for reason R. But we should be able to account, when questioned, for what we were doing and why.


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When it comes to torture, it is vital to consider an agent’s proximate end – what she’s most

immediately trying to do. Waterboarding, like sawing off an arm, may or may not constitute an

instance of torture – whether it does will depend, in part, on the proximate ends of the person

waterboarding or sawing. Thus, contrast the amputating surgeon with the saw-wielding interrogator

or the waterboarding evade-and-resist instructor with the waterboarding black-site interrogator.

Whatever their more distant ends and however they judge what they’re doing, even if they hate or

regret it or would prefer to do otherwise, both interrogators share the end of seeking to override

their prisoner’s agency, to effect her doing of what they want. And the waterboarding and terrifying

are means to this end – however it’s best described.25

An act’s proximate end helps constitute it as torture and so unjust.26 Thus, when it comes to

whether an act is torture, it matters not whether I’m trying to get information to help save innocents

or pursue genocide, for those both stand as more distant ends to the more proximate end of will-

bending by waterboarding.27 The more proximate end, which constitutes both of these acts of

waterboarding as acts of torture (and so evil) rather than, say, acts of training soldiers or conducting

demonstrations for a Frontline television documentary, is my intent to so co-opt my victim’s agency

as to reach into his soul and make him my puppet. I am trying by my waterboarding to hijack or

insert myself in his agency in the same way I might overpower his body and force him to shoot his

beloved.

25 Recall, my aim isn’t the well-trodden (perhaps vain) task of perfectly naming torture-constituting end(s). For our purposes – distinguishing torture from killing – an initial approximation of such ends, a plausible place-holder admitting refinement but locating something recognizable as torture, suffices. And in what follows, my shorthand references to things like “soul-terrorizing” or “agency-overriding” are merely such convenient place-holders, no more. Also, there are multiple forms of torture (e.g. Sophie’s choice vs. electrocution). One feature of the torture in view here is the attempt to effect action on the victim’s behalf apart from ordinary channels of her agency – bypassing them as “mind control” might, rupturing links between self, agent, and effected action. 26 By “proximate” I mean (at least) more immediate relative to more distant ends. 27 Throughout, I have in view torture that includes information-disclosure among its aims.


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Notice, the intention to cause pain is itself morally neutral – that’s not the torture-

constitutive end. Say a cardiologist performs an endurance test that requires I be in pain. She

intends to cause me pain, but this is no evil. If halfway through I say, “This is quite comfortable,”

she won’t say, “Good, I foresaw but didn’t intend that you’d be uncomfortable, so let’s do carry

on.” Instead, she will recalibrate or begin again to insure the position really is painful. But her

intending pain won’t make the act evil. Nor would her regret or desire that things were otherwise

mean that she didn’t intend to cause pain.28

Certainly, the torturer does intend pain, but it is not the pain-causing but the agency-

hijacking or self-violating that distinguishes him. Something like that is what the pain-causing is

ordered to – and this is so whatever the more distant end, like saving innocents, that set the process

in motion. It is a misapplication of the doctrine of double effect (“DDE”) that would claim such

terrorizing as foreseen but not intended.29 On the contrary, the soul-terrorizing is an end to which

the means of applying instruments of torture and generating pain are ordered.30 There is no sense in

which this soul-terrorizing and agency-hijacking are not things the torturer is trying to do, any more

than pain-generation is not something our cardiologist aims for.31 The agency-hijacking is not

outside the torture’s intention but an end to which various acts are ordered and a willed means to a

more distant end in view of which he torture’s in the first place.

28 The positioning of the body either stands as means to pain-causing or positioning and pain-causing alike stand as means to the test result. They are of a piece. And this test requires pain not just the positioning of the body just so. 29 What might constitute an instance of double effect in these circumstances? The foreseen but unintended rousing of a napping guard by the screams the torturer elicits from the victim. 30 For such misapplication, see Mark Thiessen, Courting Disaster (Washington DC: Regnery, 2010),186-87. 31 To count as intending some end correctly identified as E (pain-causing, adultery, agency-hijacking, domination, e.g.), one need not pursue it under that description. That is, one need not describe what one seeks as agency-hijacking, to count as intending just that. Likely, the cardiologist will say he is “getting the test right,” the adulterer that he is “finding true love,” the torturer that he is “roughly interrogating” or even “saving innocents.” But they are intending pain, adultery, and agency-hijacking no less.


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Now, someone might say something like: “Suppose after the waterboarding I get the

information I sought but then learn I did it incorrectly and hadn’t made my detainee feel like he was

drowning. Instead, he tells me, ‘That seems like it would be awful if it worked, so I’d like to tell

you everything.’ If that happened, I wouldn’t then try to re-waterboard him, correctly. So, that

shows I wasn’t intending to torture.” But this, as Anscombe says, “is complete bosh.”32 The fact

remains I was trying to torture him, to overtake his agency. Granted I only wanted to do so to save

lives. But some proximate ends and some means, like chemotherapy, we only intend and choose for

the sake of others. It remains that we intended them. That my torturing was inept doesn’t mean I

wasn’t trying to torture. If I only poison my aunt for her inheritance but botch the job and, blissfully

unaware, she gives me the inheritance anyway, the fact that I wouldn’t now try to poison her doesn’t

mean I didn’t intend to do so.

When some means or proximate ends were only ever instrumentally desirable and

instrumentally intended to begin, it’s no surprise we do not continue to pursue them or try at them

again once we attain the distant end that made them desirable. Lest we think no one would argue

this way, this is just the structure of Nigel Biggar’s argument about the intention to kill in his In

Defense of War.33 Appealing to DDE, he claims that soldiers who shoot to kill, shouldn’t intend to

kill. They should merely foresee that death will be caused by what they deliberately do. What they

really can and should intend is to incapacitate the enemy, and we see this, he says, by the fact that if

some enemy is incapacitated by being wounded, a just soldier won’t then proceed to kill him.34 But

this is mistaken. The goodness and desirability of the chosen means depends on the end; the end

being attained we no longer pursue the means. For they were only sought as ordered to the end. So,

granting that one end is incapacitating the enemy, the willed means to this end is killing him. Or, 32 Ethics, Religion and Politics, 42. 33 Nigel Biggar, In Defense of War, (Oxford: Oxford University Press, 2014). 34 E.g., Ibid., 105-106


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more precisely, the shooting is ordered to killing which is ordered to incapacitating – and the former

two are desirable in relation to the more remote end of winning a just war – but they are no less

willed or intended for that. Anscombe has harsh words about this view but suffice it to say that

whether it concerns killing, torture, or whatever, we can’t remove proximate ends or willed means

from our actions by mental subtraction – we can’t pretend what we’re doing is other than it is.35 Not

without grave moral danger.

Ends of child-saving or genocide-perpetrating alike stand as distant to the more immediate

end of so terrorizing my victim that he cannot help but do what I want, violating the boundaries of

self-use and love-ordering that help constitute her as the person she is. Whatever my more distant

end, more immediately I am trying to do that. And if I am failing at that, I’m failing at what I’m

trying to do, what I’m intending.

Destruction and Violation

My argument in this section hinges on a distinction between what killing and torture aim at

and do to a person, the different ways they impact imago Dei, a person’s sacred value.36

Specifically, I want to distinguish between destruction or annihilation on the one hand and violation

or desecration on the other. In destruction, the thing that was exists no more and one has a hand in

causing that. It changes, but the change it undergoes is the move from existing to not existing. In

violation, in contrast, the violated object remains in existence but suffers violent reshaping or

35 Ethics, Religion and Politics, 54n.2. 36 I suppose that simply in virtue of their humanity humans bear God’s image and just so are possessed of sacred value. Incommensurable and immeasurable, sacred value is a form of intrinsic value possessed equally by all. It’s simple in not being the composite of other values or reducible to more basic units of analysis. It’s called sacred in view of the religious character that marks its appropriate treatment and acknowledgment: we justly show it devotion, loyalty, reverence, respect, wonder, or delight. In this sense, many religious and non-religious people hold people and many other things sacred. See Robert Adams, Finite and Infinite Goods, (Oxford: Oxford University Press, 1999), Jeffrey Stout, Blessed Are the Organized, (Princeton: Princeton University Press, 2010), 210-34, and David Decosimo, “Intrinsic Goodness and Contingency, Resemblance and Particularity: Two Criticisms of Robert Adams's Finite and Infinite Goods," Studies in Christian Ethics 25.4 (2012): 438-41.


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change. Before saying more about the concepts, I want to issue a qualification and then offer some

illustrations.

From a certain angle, we can view destruction as a genus of which violation is a species.

That is, we could say that violation is a kind of destruction – a destruction of some sacred

dimension of a thing. So the violated thing has something destroyed about it – its purity for

instance. I think there’s something to this. But surely it’s also plausible, as I have done, to contrast

destruction with violation. And in this case the two are counterposed so that for some object O, it

undergoes destruction when O no longer exists and violation when O continues to exist but has in

some way had some one or more of its features seriously attacked or violently manipulated37 in

ways transgressing O’s character: so O used to be stable, e.g., and now has become fragile.38 Or O

used to be hopeful but is now full of despair. We can even imagine a violation that leaves O merely

a shell of O’s self: O continues to exists but almost unrecognizably so. The violation effects this

change in O – either the violation is the changing or constitutes the necessary and sufficient

conditions for bringing the change about.

Now, consider three examples. Imagine a beautiful mosque that is destroyed – whether

reduced to rubble or made to vanish altogether. Now imagine this mosque defaced with

blasphemous images of the prophet. Imagine an ornate menorah regarded as sacred. Now imagine it

37 These features will likely need to be important rather than trivial, but some otherwise trivial features, if changed in a sufficiently violent or fundamental way may count as important rather than trivial. A necessary feature of violation I can only mention is its origin in some agent qua agent. While we can imagine a violative negligence, a complete account would need to consider whether violation could be accidental. See below regarding a just soldier’s intentions. 38 Those latter qualifications will be important to distinguish violation from persuasion, conversion, transformation, etc. where O is a human. We might provisionally say that persuasion will (a) lack violation’s violent or alien character and/or (b) show respect for O’s loves and O’s authority to seek to order them. In the case of Christian conversion, conceived in terms of grace transforming human nature, some will want to tell a story about human nature as anticipating, perfected by, or otherwise suited to grace or about the character of the new self and its relation to the past self, so that the change grace effects is not like that effected by a hostile, alien force – like torture.


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dropped and shattered beyond repair. Now imagine this menorah falling into the hands of a wicked

Nazi craftsman – and imagine him reworking it so that it is laden with Nazi imagery, or worse,

while remaining recognizably a menorah, given the shape of a swastika. Finally, imagine a

consecrated Eucharistic host properly destroyed – dissolved in water and poured down a sacrarium.

And again imagine a consecrated host being urinated upon. Destruction and desecration.

Annihilation and violation.

Some will immediately think of cases that are at once acts of destruction and violation.

Leave those aside for now. What I mean to bring into view here is the possibility and plausibility of

the very distinction between destruction and violation.39 Specifically, I want to suggest that some

killing is best regarded as destruction and, in contrast, that certain other act kinds, including rape

and torture, are best understood as violations. More specifically, I want to suggest that the killing of

enemy combatants by a justly warring combatant amounts to destruction, whereas torture or rape,

no matter the context or perpetrator just is a violation or desecration.40

On this view, destruction of sacred value, of which killing is a cardinal instance, can be just

or unjust, right or wrong, depending on various circumstances.41 Such destruction is an act morally

neutral in kind – but never to be done lightly. In contrast, violation of sacred value is always wrong

– and indeed a very great wrong. Consider the host example. Many religions have rites for

destroying objects of sacred value. Certain procedures show how rightly to destroy these objects, so

39 I work out an analogous version of this distinction in respect to matters of religious belief in Ethics as a Work of Charity, chapter 8. 40 Claiming the soul endures death, some might say killing doesn’t destroy sacred value but merely extinguishes bodily life. While there’s an insight here, the claim: (1) Unhinges the wrongness of murder from matters to do with imago Dei and threatens to open up too much of a fissure between murder and attacks like rape and torture, all of which seem to implicate imago Dei. It would seem strange if it were one fundamental feature of humans that made it wrong to murder them, another that made it wrong to rape or torture them; (2) Neglects the body’s importance to human identity and value. 41 This account allows non-voluntarist theists who believe that God sometimes effects human death to hold that God justly do so – destroying but never violating sacred value.


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that the act can be not only permissible but praiseworthy. What the faithful seek is to destroy the

sacred value justly, and above all to avoid violating or desecrating it.42

I mentioned that some destructions might also be violations. Crucifixion amounts to a

violating destruction, a way of torturing someone to death. Yet surely we can imagine a scale

moving from the union of destruction and violation to cases of destruction without violation – e.g., a

successful shot to kill on the battlefield. What seems distinctive about violation of any sort has to do

with what is intended. To crucify just is to intend to kill someone in a particularly torturous way.

Other cases will likewise involve a perpetrator in seeking intense, horrific suffering, humiliation,

despair, and so on. It’s worth dwelling on this point because battlefield killing is itself

extraordinarily gruesome – and often involves or produces intense suffering, terror, and trauma. Yet

for all that, it is no part of the justly-warring soldier’s aim to cause such suffering and trauma. She

aims to kill not to override the enemy’s agency, transgress her sexual boundaries, or assault her

soul.43 However gruesome the killing and violence might incidentally be, what’s aimed at just is

death, not violation but destruction. 44

In contrast, acts of torture, however “mild,” aim at and constitute violation of sacred value.

Descriptions of what’s sought in torture abound – the will is violently bent, agency overridden, and

so on. What this account does is to unite such descriptions under the heading violation, as distinct

42 For Catholics, these objects participate a sacred value whose being is not entirely coincident with the sacrament, for in disposing of the host, only this presence of Christ’s body is destroyed. Further, unlike the difference between two hosts, some human’s sacred value is surely unique – that person’s and no other’s. Still, I don’t think this threatens our destruction/violation distinction. 43 Soldiers may intend that enemies fear them. But – like the deterrent power of just law – they cultivate fear to to induce the unjust to forsake their attack on injustice. And demands of right intention and proportionality prohibit killing to induce terror. So long as we don’t regard just law violative, neither should we so regard the fear just warriors may cultivate. 44 The battlefield admits countless horrors, but we must distinguish between the intent to kill and the intent to inflict suffering or violate. That the enemy die an especially painful death or suffer maximally should be outside the just soldiers’ intention.


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from destruction. Part of what constitutes torture as torture is its status as violating sacred value.

Just so it is both absolutely wrong and saliently unlike killing.45

Torture’s Context of Domination

Domination is what Aquinas would call an act’s circumstance.46 Circumstance or context

matters enormously when it comes to the morality of an otherwise identical act. Think of the

difference made to the morality of some sex act whether it occurs in a couple’s bedroom or before a

first grade class. And context – the context of domination – is vital for constituting certain acts as

acts of torture and unlike just war killing.

Torture, Cole says, is just another case of “making good use of superior force,” exploiting

the power differentials by which wars are won.47 But this misses the point as far as domination is

concerned. Domination concerns not power differentials or their exploitation as such but a

particular sort of power differential and its exploitation, of which the master/slave and

conqueror/conquered relations stand as paradigmatic instances.

While those relational paradigms are primary, we can say that a person counts as dominated

when someone is in a position to exercise arbitrary power over her.48 If we define power as the

45 What of the objection that many would rather suffer some forms of torture than be killed? Since even killing is sometimes permissible, doesn’t that suggest torture is too? I think not. That X is worse to suffer than Y or Y preferable to X does not mean that X is worse simpliciter or worse to do. Killing may be worse to suffer but that hardly means it is always evil to do or more evil than torture. Moreover, comparing killing with torture constitutes a category mistake, like asking if sex (neutral in kind) is better than almsgiving (good in kind) or worse than theft (evil in kind). I haven’t argued that torture is worse than killing, for killing becomes right or wrong depending on various features that determine its moral quality – and only as it’s morally specified, rendered morally determinate, is it appropriately compared with an act, like torture, which is inherently evil. Moreover, my claim hasn’t been that torture is worse than murder, unjust killing. Both are evil; neither should ever be done. I have argued that just war killing and torture are different such that we can treat the two differently, proscribing the latter. 46 Actually (like “friendship,” e.g.), domination can be an act’s circumstance and/or an act’s end. More on this below. 47 “Torture and Just War,” 28. Neither Biggar nor Cole grapple with domination, which is proper to the torture they envision. 48 Philip Pettit, Republicanism: a Theory of Freedom and Government (Oxford: Oxford University Press, 1997).


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capacity to effect change worth caring about, there are two components to this notion of

domination: arbitrariness and position.49 The power is arbitrary when, for instance: it fails to meet a

reciprocity test (e.g., dominator wouldn’t trade places with dominated); it’s not governed by norms

that are the product of, required for, or constitutive of relations of mutual respect; the power

differential lacks a rational basis, unlike that between teacher/student or parent/child; the dominator

is not accountable to the dominated or her representatives; etc. Power differentials alone don’t

constitute domination. Other things equal, bosses, teachers, and parents don’t count as dominating

employees, students, and children in virtue of their superior power. Rather domination pertains to

power differentials that are arbitrary in the ways just detailed. The positional component names the

fact that even under a benevolent master, a slave is hardly free, for he lives under perpetual threat

that the master could – at will – effect violence with impunity. For his own safety and survival, he

can rely on nothing other than the master’s whim.

This is vital. Part of the badness of being dominated is the badness of being radically

vulnerable to another’s exercise of power – stripped to the soul, one feels the terror of ontological

and existential nakedness before another who is in neither similarly vulnerable nor accountable to

you. Whether the attack comes, it can and one is defenseless.

To be dominated is to suffer a certain kind of inescapable, involuntary, and radical

vulnerability. Even apart from domination, vulnerability matters for an act’s significance. Consider

a hard slap to the face delivered by a man. Now, note how we regard the blow when delivered to

different innocent victims: a strong man; a frail ninety year old; a special needs child; an infant. In

regarding the slap in the latter cases as worse than the first, we are registering the differences in

vulnerability. And it isn’t sadism concerning us, for the indifferent or “reluctant” abuser here seems

no less guilty of evil than one who enjoys it. 49 The definition of power is from Stout, Blessed Are the Organized.


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Domination is a vulnerability heightener, peeling away what might otherwise prevent an

attack from amounting to violation. Imagine a slapping-centered bar fight. Joe slaps bystander Steve

several times. His malicious slaps aim to and do hurt Steve and wound his pride. These slaps are

wrong, but I don’t think they constitute a violation. But if we manipulate the context and Joe’s

intention, the slaps look more and more like a violation. Say Steve is gay—the only gay man in a

bar full of men who hate homosexuals—Joe knows Steve is gay and his attack on Steve and even its

peculiar slapping-mode is motivated by his knowledge of Steve’s sexuality. Say, further that as Joe

slaps Steve he calls him a “f--” and says awful things about his sexuality, entertaining the bar with

his abuse. It seems clear that this slapping—even if the slaps aren’t that hard or numerous—violates

sacred value.

What of the objection that just war involves (the aim of) dominating the enemy? Not so.

First, defeat is not domination – once the enemy ceases to attack or the war ends, just soldiers

likewise cease to attack and instead pursue the rule of law. Until then, by definition, the enemy

combatant in virtue of his role, if not in some particular instance, fights back.50 This role-dependent

power symmetry between combatants distinguishes battlefield power differentials from domination.

Put simply, there’s a vital difference between the naked, defenseless captive on the torturer’s table

and the shoddily-armed soldier succumbing to a superior opponent. The one is at the torturer’s

whim; the other has a fighting chance. Further, to the degree that battlefield relations come to

resemble captor/captive relations a context approaching domination threatens to arise, but, just so,

as this begins to happen the just superior power accrues duties that begin to approximate that of

50 The parity of mutually warring combatants – a parity of roles, not justice – is necessary but not sufficient for just war.


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captor to POW: e.g., they imprison rather than execute, try to elicit surrender, and so on.51 The

changing relation carries with it a change in norms, a change in what is permissible and obligatory

for each party. Of course, refusal of the weaker party to recognize his own changing role and

obligations may mean he is justly killed, and unjust soldiers may indeed dominate and terrorize

those they overpower. Instances of domination can surely arise. But we are bringing in view

battlefield power differentials as such and torture as such to show that the one but not the other

inherently constitutes domination. To find domination amidst war, then, we should look not to

battles between mismatched forces but to disproportionate means and, especially, attacks on non-

combatants. That’s why the colonizing conqueror/conquered subjects relation has long been a

paradigm of domination. For the conqueror’s domination is not a matter of mismatch between

forces (though it may have been enabled by that), but something effected by and realized in victory:

the conquered are defeated. Defeated peoples and their vanquished forces stand before unjust

victors at their mercy, as slaves before masters. They are defenseless noncombatants before vicious,

unconstrained combatants.

The tortured stands to torturer as slave to master – utterly vulnerable, entirely at the

torturer’s mercy. Part of what distinguishes Frontline waterboarding from Guantanamo

waterboarding is that the latter involves domination. The journalist consents, knows it will end,

knows herself in the hands of those under accountability, knows the power over her is limited and

wielded by those who aim at a shared good. Not so the detainee.52 Under domination, acts take on

new meanings, even as compared to other hostile contexts. Attacks that might otherwise be

51 We should distinguish between, say, two combatants fighting to death and the broader battle of which they’re part – it’s the latter I have in view and which will inform our parsing of the former. We rightly distinguish battlefield killing from execution. 52 That, on Cole’s and Biggar’s position, the torturer ought to present himself to face legal consequences after torturing doesn’t secure against domination, for in advocating extra-legal torture both undermine law’s constraining power – which is necessary its capacity to secure against domination.


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mundane or minor can become torture. Slaps at a black site are not the same as slaps – or even

punches – in a bar-fight. Being forced into a stress position in a torture chamber is not the same as

being put into stress positions—as I was—as part of soccer training or as many pay to undergo at

the hands of yoga instructors. Domination amplifies pain and generates terror: What will happen

next? Will this ever end? What if I fall?

Torture is domination par excellence. All this is neglected by Biggar and others who regard

“aggressive interrogation” as less than evil or torture – as it was by Donald Rumsfield when

approving a list of interrogation techniques, he jotted in the margins, referring to his standing desk,

“I stand for 8-10 hours a day. Why is standing limited to 4 hours?” When Rumsfield, Cheney, and

others suggest that generic practices described as “aggressive interrogation” are not serious wrongs

or evil, these acts – hooding, stress positions, dousing with cold-water – are almost always imagined

in the abstract or in some non-dominating context. That is, they are imagined and depicted apart

from the only context in which they might actually be used – the context the helps constitute them

as torture.

When Rumsfeld stands at his desk, or I am asked to assume a stress position as part of

conditioning, neither of us is dominated. Rumsfeld can sit when he pleases—he is subject to no

power at all. Enduring the stress position, I know my collapse will only mean more conditioning.

The coach’s power is limited. We share a common end toward which the training is ordered. Should

he go too far, the team will walk away, or get him fired. The subject of torture, of domination, has

no such power or hope.53

53 The vulnerability of justly held prisoners is offset by constraints on the guards’ power and the accountability to which guards are subject. These constraints – which the imprisoned know to obtain – limit the guard’s power and thereby “clothe” the prisoner’s vulnerability.


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Domination represents a form of violence merely as a state. The very possibility of what

might happen constitutes a powerful, terrifying threat.54 This is why lead interrogators in the CIA

program would themselves say of the dungeon-like black site COBALT where some of the worst

abuses occurred, that it was itself “an enhanced interrogation technique.”55 That is, they recognized

the extent to which even a certain physical landscape – apart from anything they did – could itself

terrorize, constituting the prisoner as radically vulnerable while confronting him with that

vulnerability and a sense of total helplessness before an invulnerable, malevolent other.

Indeed, as the 2014 Senate report details, one aim of the US interrogation program was the

domination of detainees. Recognition that one is dominating another is hardly prerequisite for

actually dominating them, but the CIA did recognize and theorize what it was doing in just these

terms, consciously pursuing a program of domination. Thus, from the very first interrogation, they

sought to generate what psychologists call “learned helplessness,” “a passive and depressed [state]

in response to adverse or uncontrollable events.”56 “Learned helplessness” is domination by another

name. The concept finds its clinical home in relation to dogs who when subjected to random electric

shocks quickly exhibit despondence. In the case of detainees, the idea was to create a sense of

despairing powerlessness before an all-powerful master who could inflict suffering at will.

Mimicking the dog experiment, this meant a retinue of adverse conditions and random assaults

showing the detainee the interrogator’s power and his own defenselessness. “Thus…throughout

much of 2003, CIA officers…could, at their discretion, strip a detainee naked, shackle him in the

54 Leaving aside whether it constitutes, the “false flags technique” exemplifies the threat domination represents simply qua state. Led to believe he’s in the hands not of the U.S. but a country known to practice brutal torture, a suspect’s fear that he might be tortured is meant to cause him to surrender information in exchange for “becoming” a prisoner of the U.S. 55 Senate Select Committee on Intelligence, “Committee Study of the CIA’s Detention and Interrogation Program: Findings and Conclusion,” http://www.intelligence.senate.gov/study2014/sscistudy1.pdf, 4. 56 Ibid., 19n32.


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standing position for up to 72 hours, and douse the detainee repeatedly with cold water.”57 Guards

wore black outfits concealing all skin, and goggles that hid their eyes. They would suddenly blast

deafening music, drag detainees naked into the hall, enact hallucination-inducing sensory

deprivation.58 The point of it all this was to render prisoners “[maximally] vulnerable” and aware of

the interrogator’s complete power.59 The point of all this was domination. Domination, then, can be

an act’s end as well as its circumstance.60

Torture unfolds in domination – it is not so much as possible unless the torturer has

something approaching total control over the victim who stands as radically defenseless. Not only is

torture’s habitat domination, apart from which it cannot survive, but its each act – hooding,

waterboarding, chaining, stripping, starving, rectally “feeding” – enacts and expresses domination.

Its each act proves the victim’s vulnerability and the agent’s invincibility, displaying, enacting, and

deepening these realities. Torture epitomizes domination. In a vicious cycle, its each act both

dominates and deepens a context of domination.

At one point Cole sketches two scenarios – one in which an innocent is tortured by Nazis

and one, like the US case, where those bent on rescuing innocents torture a war criminal to get

information – to argue against the former and for the latter.61 Here I think neglect of domination,

violation, and proximate end all conspire to conceal the evil in common across the cases. For what

57 Senate Select Committee on Intelligence, “Committee Study of the CIA’s Detention and Interrogation Program: Executive Summary,” http://www.intelligence.senate.gov/study2014/sscistudy1.pdf, 63. 58 Ibid., 60. 59 Ibid., 28. 60 It’s an act’s end when one acts in a way that intends to bring about or realize a certain state of affairs or relation – a dominating one. So, an act can: unfold in a context of domination; bring about or aim at domination; or both unfold in that context (circumstance) and further that context (end), even being done in part for that reason. On that last possibility, consider how one might, at once, act for some friendship (end) and in the context of that friendship (circumstance). For our purposes, it suffices simply to register these possibilities and to note that an act needn’t pursue domination (as end) for domination to figure in it (as to circumstance) in a way that helps constitute it as torture. 61 “Torture and Just War,” 12-14.


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the Nazis and the Allies hold in common just is the effort to exploit and violate a person’s

vulnerability as an embodied, fragile creature so as to make them an instrument of our own

purposes, whatever they may be. Whatever else we find horrifying about the former case, part of

what we (should) find so troubling is the targeting, in and through the vulnerability proper to her as

a creature, of a defenseless, subjugated person over whom the torturer has complete power. This

violation and domination through targeting physical, psychic, and spiritual vulnerability in the midst

of utter defenselessness which “torture” names, we should find reprehensible whatever else holds

for the torturer’s motives or the victim’s identity – just as a rape should trouble us whatever the

rapist’s further, more distant aims and whoever the victim or rapist may be. This targeting, this

exploitation and attack, is shared in common in all cases of torture – whatever the further ends.

Conclusion

The 2014 Senate report offers a striking and horrendous portrait of the way all three of the

features I’ve discussed constitute some act as torture and distinguish it from even the most

gruesome just war killing. It also offers a fitting way to conclude. The interrogation program’s

remote ends were to save innocent lives and prevent terror tacks. These are good aims, truly

intended. Yet the more proximate aim of the program and countless acts that unfolded within it was

torture – the domination of detainees, the violent overriding of selves and loves, nothing less than

the violation of sacred value. Chaining detainees to the wall, parading them naked, and so much else

– each of these and all together sought forcibly and violently to co-opt vulnerable human beings and

to do so without regard for their sacred value. Interrogators aimed to maximize the detainees’ sense

of vulnerability and instill hopelessness and learned helplessness. These were proximate ends and

willed means. That’s easy enough to see, but all the more obvious since the perpetrators even spoke

explicitly in such terms. That interrogators expressed discomfort with such practices or even wept

after doing them, that they wished there were some other way, or whatever they told themselves, in


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no way changes their intention. These violating, dominating ends, these acts, are unlike the just

killing and fighting of even the bloodiest, most dispiriting battles. It is no part of the aim of the just

soldier to reach into the enemy’s soul and make him a puppet or render him a slave and play the

part of master. His intention is something altogether different: he intends to kill – and in so doing to

protect and pursue, not only in his remote but in his more immediate ends, such bloody and

imperfect justice as this life admits.

Killing and the Wrongness of Torture

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