Excusing Torture at ‘Justice’

Editor's Comment:

Ray McGovern's piece below demonstrates a great deal more about what is wrong with Roman Catholicism today than it does the poor grasp a senior member of the US Justice Department [Thomas Perez, assistant attorney general for civil rights] has of his alleged "Catholic" faith. The tragic fact is that since the Second Vatican Council there now exists almost "3" generations of self-confessed "Catholics" who have no idea what traditional orthodox Roman Catholicism teaches about anything. Thomas Perez is apparently one among a virtual plethora of such individuals.

Traditional Roman Catholic moral theology as understood in the Aristotelian/Thomistic synthesis of St. Thomas Aquinas (see Summa theologiae) is strongly biased against capital punishment and torture. This is based in Sacred Scripture, Sacred Tradition and constant magisterial teaching something that prior to 1965 well catechized Roman Catholic adults could generally articulate quite well--no longer.

It should be understood however that the Roman Catholic Church prior to Vatican II never stated categorically that capital punishment should be illegal, recognizing that under certain dire circumstances it might be necessary while in the main undesired or even contraindicated unless absolutely necessary in order to protect the innocent.

Effect of Post-Conciliar "New Theology"

Since 1965, the situation with respect to "Catholic" moral theology has been confounded for a variety of reasons due at least in part to the invention and promulgation of the so-called "New-Theology" (by dissident Theologians) which is in many ways unorthodox if not out-right heretical--although that is a subject not germane to this topic or this blog. Interested readers may consult this site instead. Suffice it to say that it has been almost universally negative.

Post-Vatican II Popes

For those readers with greater interest in the moral theological literature produced by the Magisterium subsequent to Vatican II, the encyclicals of several popes have in large part stressed the fact that 1) capital punishment is unnecessary to protect the public, 2) it is often a reflection of the desire for revenge rather than justice and 3) it is incompatible with basic human dignity due primarily to man's creation in the Imago Dei "Image of God" and the full meaning of the Incarnation of Christ as a complete life-giving gift of self for the other (man).

In a very real sense, to intentionally kill or harm (as in torture) another human being is to attack God as He is "Imaged" in the human person--unless very specific criteria are met e.g only when necessary to protect the victim from death or serious harm as in the Just War Doctrinal Tradition which holds that war should be avoided at almost all cost and considered only as a last resort and with appropriate proportionality. Interested readers should also consult for example; Veritatis splendor and Evangelium vitae for further details.

Human Dignity is Grounded in the Imago-Dei

In any case the fundamental underlying (touchstone) concept is that capital punishment and torture are incompatible with basic human dignity grounded as it is in the Imago-Dei that is, the Image of the Triune God, literally stamped as it were into every human being (Gen 2:7; Wis 9:2-3). I will admittedly oversimplify by saying the following but such are the requirements of the time in which we live: nothing that degrades the Image of God in each person is morally permissible from the orthodox/Traditional Roman Catholic perspective and it is here that so much of the so-called “new moral theology” (read moral heterodoxy) has gone astray.

Input from Natural (Moral) Law

An understanding of the Natural Moral Law which flows from the "nature" (or as moral philosopher's say the quiddity or "whatness") of human being is extremely helpful here. Traditional Roman Catholic moral philosophers teach that the "ought" of human behavior flows from and is circumscribed by the "is" of human nature. It is in the ontological (metaphysical not embryological sense) specialness of what it means to be human that we find the proscription against capital punishment and torture.

Traditional Roman Catholic teaching holds that Jesus Christ (through the power of the incarnation, the one true hybrid God/man) serves as an example for human beings in way of understanding or teaching mankind the true meaning of humanity in all its fullness. That is, God has said everything He has to say to us in Jesus Christ. Put another way it is in the fullness of Christ’s humanity that we find the answer to the meaning of our own humanity. His is the humanity to which we all must aspire.

Input from Sacred Scripture

The following example is illustrative.  When Christ was confronted with the woman caught in adultery, the crowd expected Him to follow the Old Testament (Leviticus 20:10) prescription of "stoning adulterers to death ", yet Christ said: "Let he who is without sin cast the first stone" (John 8: 3-11) and the crowd dispersed. Christ softened the Judaic (Old Testament) Law which allowed capital punishment under the rubric of an "eye for an eye" in the trajectory of greater mercy by teaching that it was not necessary to punish the perpetrators of seriously immoral acts by subjecting them to the death penalty. He taught that the New Law of mercy (Love) was perfect where the Old Law was necessary but in a sense insufficient. 

Christ told the woman in question, “I do not condemn you, go and leave your life of sin.” (John 8: 11), the point being that the emphasis was on the repenting (turning away) of the sin of adultery and beginning anew. Christ was asserting that it was necessary that the sinner undergo a total conversion/transformation of heart (spirit) which would be demonstrable in how he/she lived thereafter. In the secular criminal justice system this might be compared to the more modern notion of rehabilitation of criminals rather than condemning them to death or perpetual imprisonment.

"Christian" Fundamentalism is Judaized (Law of Christ [Love] is Removed)

Traditional Christianity therefore, properly understood (in contradistinction to much of "Christian" Fundamentalism which has Judaized traditional orthodox Roman Catholicism into an almost unrecognizable conterfit) has a very great bias against capital punishment (and a virtual sanction against torture as well) on the basis of the direct teaching of Jesus Christ. This strong bias against the death penalty can only be overcome by objective factual circumstances in which virtually no other option exists by which to protect the populace from murderers, a reality which almost never exists today in light of the modern penal system. In practice, the death penalty too often does represent revenge rather than the fair administration of justice or the necessary requirement to protect the population from the threat of murder or serious bodily harm.

False Arguments for Torture

Even if torture produced valuable information by which further crimes could be avoided (which thankfully it has not been demonstrated to do, rather, victims of torture say whatever they think will stop the torture), it would remain morally wrong to engage in torturing human beings, again on the basis of the Natural Law and direct scriptural (New Testament) injunction as well as over 2000 years of orthodox/Traditional Roman Catholic teaching albeit at times very imperfectly applied. To say that torture is acceptable because it provides important information with which to avoid future attacks is not only false but is to invoke rank Utilitarianism which is no moral philosophy at all.

Failure of Roman Catholic Church to be "Salt and Light"

The loss of Roman Catholic orthodoxy subsequent to Vatican II has seriously/negatively impacted the common morality of America and the world such that assistant attorney general Perez is not an aberation among self-professed "Catholics."  This is the fault of the post-conciliar "Catholic" Church in failing to preach the full Gospel of Jesus Christ as faithfully handed down for over 19 centuries.

In large part I agree with Ray McGovern that it is inappropriate of Mr. Perez to associate his remarks with anything having to do with the  Roman Catholic Faith given his unwillingness to either state his personal opinions clearly or to refer specifically to Traditional Roman Catholic teaching on justice.

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Excusing Torture at ‘Justice’

By Ray McGovern

January 26, 2010 "Information Clearing House" -- On Sunday, I attended an informal talk given in a parish hall by the Justice Department’s Thomas Perez, assistant attorney general for civil rights. His topic: “The way his work for justice is defined by his faith.”
During the Q&A after his talk, I had a chance to pose some questions:

Question: “Thanks, Tom, for making yourself available to us. You raise the issue of torture, and intimated that there is consensus among Catholics that torture is wrong. Polling conducted two years ago indicates that this is far from the case.

[According to the Catholic News Agency, a survey by the Pew Center Forum on Religion & Public Life found that Catholics are more likely than the general U.S. population to favor the use of torture against suspected terrorists. More than half the Catholics surveyed said that torture could be often or sometimes justified, while another 27 percent said the practice could rarely be justified. Only 20 percent said it could never be justified.]

“You are head of the Civil Rights Division at Justice. I am sure you would agree that a person’s right not to be tortured is a civil right.

“Your immediate boss, Attorney General Eric Holder, has stated in testimony to Congress that waterboarding is torture. President Obama has said the same thing.

“Now the president… that is, former President George W. Bush… has written a book in which he brags about authorizing waterboarding and says he would do it again. Former Vice President Dick Cheney earlier endorsed waterboarding.

“Like you, Tom, I went to a Jesuit high school, and I know what a syllogism is. If waterboarding is torture, and those who authorized it now admit that and brag about it, is not your boss Eric Holder bound by his oath of office to prosecute those who admit to having authorized torture?

“I refer here not only to those tortured at Guantanamo, at the huge prison complex at Bagram, Afghanistan, and at ‘black sites’ around the world where my former colleagues at CIA were given carte blanche to ply their trade.

“I refer also to American citizens like José Padilla, born, like me, in New York City, who was deprived of his civil rights and subjected to the cruelest forms of debilitating torture right here in the U.S.A.

“Again, you are head of the Civil Rights Division at Justice. You have talked a good bit about conscience. Your boss, the attorney general, appears unwilling to see to it that the law be faithfully executed. Has your faith or your conscience led you to raise this subject with Eric Holder?”

Perez: “It’s a matter of prosecutorial discretion. We have discussed these matters, and I am not about to reveal information on those discussions.”

Question: “Your talk is billed as a discussion of how your faith defines your work for justice. I am not asking you to reveal information about the discussions you have been part of at the Justice Department; I am asking you how you come at the issue of torture from a faith perspective.”

Perez: “You are very clever, but I am not going to let myself be drawn into this discussion. Next questioner.”

Perez had begun by expressing appreciation for the education he had received from the Jesuits at Canisius High School in Buffalo – a sentiment I share from my four years at Fordham Prep in the Bronx.

As far as moral theology and justice are concerned, though, it appears that Perez was exposed to the same dictum at Canisius as I was at Fordham. Moral theology? Ethics? Simple. The whole deal is to: Do Good, and Avoid Evil.

It was not until the mid ’80s, when I completed a certificate in theological studies with the more up-to-date Jesuits at Georgetown, that I learned that the Do-Good-and-Avoid-Evil proposition was only half correct. Jesus of Nazareth called us to do good, certainly. But not to avoid evil; rather, to confront it.

This shows through clearly in the first chapter of the first Gospel written (Mark 1:16-28). After recruiting his fisherman freshman to enroll in Discipleship 101, Jesus brings them into the synagogue at Capernaum and provides a vivid illustration of what we are called to do in the face of evil – confront it.

His message: No confronting of evil, no true discipleship.

Making It at Harvard Law

Distinguished Catholic jurists who preceded Perez at Harvard Law School – for example, “where-does-the-Constitution-say-executions-have-to-be-painless” Antonin Scalia and former Attorney General Alberto Gonzales – have amply demonstrated the validity of Lord Acton’s dictum about how power corrupts.

Perez’s response suggests to me that some of this may have rubbed off on him as well.

I am grateful for the insights gained during my years of theology at Georgetown (coincidentally, the same years Perez spent at Harvard Law). The one theme wending its way through all the courses was this: what Yahweh of the Hebrew and Jesus of the Christian scriptures care about, above all else, is that we do Justice – that disciples are called unambiguously, to Do Good and CONFRONT (not merely Avoid) Evil.

I was not surprised that Perez found my question unwelcome. I was surprised that he answered it so dismissively.

His reaction left the impression that, during whatever deliberations on executive accountability for torture he has been party to, he has held his nose in silence – like his seniors of malleable conscience at Justice and the White House, who choose to duck, rather then confront human rights abuses involving U.S. officials.

Worse still, his taking refuge in “prosecutorial discretion” is legally flat-out wrong.

Does he not know that the United Nations Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment adopted by the UN General Assembly on Dec. 10, 1984, (now signed by some 150 nations – including the U.S., which also ratified it on Oct. 21, 1994) has been and remains the supreme law of the land? The Convention makes no allowance for “prosecutorial discretion.”

If evidence of a violation arises, the signatories are obliged to promptly investigate any allegation of torture and, if appropriate, prosecute. The Convention’s description of torture certainly includes waterboarding. And, as already mentioned, Attorney General Holder and President Obama have conceded the point.

(For that matter, even if waterboarding – best defined as “contrived drowning with intentional resuscitation” – were somehow not to be deemed torture, it would certainly constitute the “cruel, inhuman, or degrading treatment” for which the Convention Against Torture also requires investigation as a matter of law.)

The Convention defines torture as “Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person, information or a confession….”

The Convention also declares torture an extraditable offense, and endorses the concept of universal jurisdiction to try cases of torture where an alleged torturer cannot be extradited.

Jesus and Empire

This may sound somewhat harsh, but it struck me that if Perez was not open to addressing “the way his work for justice is defined by his faith,” he ought not to have appeared under that rubric.

Comparisons can be invidious. And the one that follows is probably a bit unfair. But the exchange with Perez reminded me of another person of Christian faith, former Secretary of State Madeleine Albright, to whom CBS’s Leslie Stahl posed a difficult question on May 12, 1996.

Referring to the effect of the sanctions against Iraq, Stahl noted: “We have heard that half a million children have died. I mean, that is more children than died in Hiroshima. And, you know, is the price worth it?”

Albright: “The price, we think the price is worth it.”

In an address eight years later at the Yale Divinity School, Albright elaborated on her realpolitik approach to matters of state. She asked what would have happened if after 9/11 the president had said, “Resist not evil. Whosoever shall smite thee on the right cheek, turn to him the other also.”

Albright’s exegesis: “I suspect most of us would think it a preposterous prescription in a time of national crisis.”

She went on to speak of the dilemma that “we each face in trying to reconcile religious beliefs with professional duties,” and came down squarely on the side of “professional duties.”

Not stopping there, Albright went on to misquote Scripture in claiming that the president, in vowing to rid the world of evil, echoed the words of Jesus, “You are either with us or against us.”

In a gratuitous allusion to her empire-centric approach, the former secretary of state went on to endorse Vice President Dick Cheney’s “sincere” religious beliefs. She singled out as a “good thing,” his controversy-provoking Christmas card the year before (2003), which bore the inscription: “If a sparrow cannot fall to the ground without His notice, is it probable that an empire can rise without His aid?”

Stanley Hauerwas, a Yale alumnus, now professor of theological ethics at Duke Divinity School, was moved to comment on Albright’s speech in a Yale Divinity School publication.

He noted that much of what she said was designed to “underwrite the assumption that we cannot follow Jesus and pursue the limited justice possible in foreign affairs.”

But wait. Was not “His” message a direct challenge to empire – in his day the Roman Empire and religious and civil collaborators in the Roman occupation? Isn’t that why the religious and civil authorities put their heads together and ended up torturing and executing him?

Had Jesus allowed himself to be co-opted by the empire and its Quislings, had he chosen to divorce his nonviolent but challenging vision of justice from the politics of the day, he could have died peacefully in his bed – as did the leaders of the institutional church in Nazi Germany.

And we can too. All that is required is a mind-trick to convince ourselves that Jesus did not really mean to say what he said, that he did not really mean to do what he did in exposing the evils of empire.

And help is at hand. It is easy to find a pastor preaching a domesticated Jesus – an ahistorical Jesus far more interested in “piety” than justice. I still find myself wondering how the Cheneys’ pastor reacted to their Christmas card.

Sinning for Us

Often it takes a compassionate but truth-telling outsider to throw light on our country, its leaders, its policies. Bishop Peter Storey of South Africa, who walked the walk in his courageous, outspoken resistance to the apartheid regime (and was chaplain to Nelson Mandela), provides this prophetic word:

“I have often suggested to American Christians that the only way to understand their mission is to ask what it might have meant to witness faithfully to Jesus in the heart of the Roman Empire.

“Certainly, when I preach in the United States I feel, as I imagine the Apostle Paul did when he first passed through the gates of Rome – admiration for its people, awe at its manifest virtues, and resentment of its careless power.

“America’s preachers have a task more difficult, perhaps, than those faced by us under South Africa’s apartheid, or by Christians under Communism. We had obvious evils to engage; you have to unwrap your culture from years of red, white, and blue myth.

“You have to expose and confront the great disconnect between the kindness, compassion, and caring of most American people and the ruthless way American power is experienced, directly and indirectly, by the poor of the earth. You have to help good people see how they have let their institutions do their sinning for them.

“This is not easy among people who really believe that their country does nothing but good. But it is necessary, not only for their future, but for us all.

“All around the world there are those who believe in the basic goodness of the American people, who agonize with you in your pain, but also long to see your human goodness translated into a different, more compassionate way of relating with the rest of this bleeding planet.”

Finally, let me add something I have learned thanks to the candid comments of my atheist friends.

“Hey, Ray,” one wrote, “please, not so heavy on this Judeo-Christian heritage you keep citing. I don’t buy any of it, but wake up: on torture it is not at all necessary to be a person ‘of faith.’

“It is abundantly clear to this atheist, and to most of us, that it is simply impermissible for human beings to torture one another. Humans do not do that to other humans. Period.”

I see the truth in that. At the same time, it does seem to me that we who claim to follow a courageous dissident activist who was tortured to death may have extra incentive to do all we can to prevent others from being subjected to “Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment.”