The DOJ has rendered its judgment of John Yoo, et. al, and in a surprise to no one, it is a toothless one. They used 'poor judgment' concludes the report, kind of like when one regretfully chooses fish over steak at dinner or merlot over cabernet. This conclusion evidently waters down the more heady judgment of an earlier draft, which draft had recommended sanctions and possible disbarment.
But that draft was written in the heydays of moral accountability, the end of the Bush years. Now that we live in the we-only-look-forward-and-not-backwards Obama administration, all past government crimes can see the light of day with no fear of liability.
So, now we can see the clear trajectory: DOJ lawyers can be accountable only to the DOJ; and the DOJ will not hold its own accountable because that would harm the DOJ's image.
When are we going to have an independent arbiter for these crimes?
Monday, February 1, 2010
Institutional protection, part 2
Sunday, December 6, 2009
Institutional protection
Scott Horton over at Harper's reports that the Obama DOJ has filed a brief on behalf of John Yoo in Padilla v Yoo. According to Horton, the brief argues that there are only 3 basic routes by which a lawyer at the DOJ can be held accountable for his official actions. All three routes depend, in essence, on the authority of the DOJ itself, which means that the DOJ is crimainally liable if and only if it finds itself to be so. Needless to say, this is an exceedingly low standard given any institution's inclination to protect itself.
Horton concludes:
The Holder Justice Department’s brief can only be squared with prior DOJ arguments this way: foreign lawyers in foreign Justice Departments have no immunity and can be held accountable, but lawyers who work for us have absolute immunity from any meaningful form of accountability. The path to a renewal of the criminal misconduct of the Bush years is being prepared right now. And Obama Justice Department lawyers are doing the work.
Sunday, August 9, 2009
The Responsibility to Protect
Noam Chomsky's take on the responsibility to protect. As always with Chomsky, an informative and interesting read. We've taken on this topic here and here.
Wednesday, July 29, 2009
Justification for facilitating torture
The case of the APA and its members who participated in coercive interrogations.
When I read about psychologists who participated in the Bush administration approved interrogation/torture sessions, I recoil in contempt. The contempt is heightened when I read that, since 2002, the American Psychological Association (APA) has effectively condoned and offered justifications for its members’ participation. Is my attitude justified?
Some say no. They do so on the basis of a counterfactual claim: interrogations would have been worse for detainees had it not been for psychologists’ participation. This argument uses the following standard for ethical action: doing something is justified if doing it leads to better outcomes than not doing it. Applied to our psychologists’ participation in torturous interrogation, we can respond, Really? Their participation led to torture and the claim is that without them matters would have been worse. Really, worse than being tortured?
Even if we grant that there are degrees of torture and that psychologists’ participation mitigated the degree of torture, the counterfactual claim is specious because it uses the wrong baseline for comparison. If I torture you less than someone else would have, then that results in a better state of affairs; but, it obviously can’t be used to justify what I am doing. As an aside, compare a similarly specious argument often made for paying the minimum conceivable wage to third-world workers: if I didn’t bring my business over there, they would be unemployed; therefore, since $1/day is better than the nothing they would have gotten, that’s what I’m justified in paying.
At the very least, then, a comparative claim used to justify action must use as a baseline not how things are or would have been without the action, but rather how things would have been if I had acted in all the ways I could have acted. In the case of the torturer, assuming she can stop torturing, that would represent the best outcome (in the case of the entrepreneur, a better outcome would be to pay the just amount which is certainly more than $1/day), and what she does in fact do can be justified only if it is better than that. So, a better standard of justification would be this: my action is justified if doing it is better than anything else that I could have done. I’m not saying that this is the correct standard, but we can use it for our present purposes of evaluating justification for facilitating torture.
We can begin by looking at a brief history of the APA’s ethics code that is relevant to conflict between law and professional ethics. We can note that prior to 2001, the APA’s ethics policy suggested that conflicts be ‘responsibly resolved’ by the psychologist. This open-endedness left it open to the psychologist to follow her conscience in potentially violating positive law. Post 9/11, the policy was revised to read that obeying the law, irrespective of its content, would be sufficient for its members ethical standing. [For a more detailed discussion of the APA’s ethical standards, see Kenneth S. Pope’s, Ph.D., ABPP and Thomas G. Gutheil’s, M.D. article, here.]
Let’s now think of the culpability of individual psychologists and their role in torturous interrogations. If their participation is to be justified, they must claim that their participation leads to better outcomes than anything else they could have done. Is this plausible? The director of the APA’s ethics office, Stephen Behnke, argues for the presence of psychologists as follows:
APA frames a role that psychologists have unique training to fill: the role of observing interrogations in order to guard against ‘behavioral drift’ on the part of interrogators. Behavioral drift, which may arise in high stress situations where there is insufficient ethical guidance or oversight, involves a deviation from professionally and ethically acceptable behavior and so may lead to coercive interrogation techniques. Psychologists, as experts in human behavior, are trained to observe and intervene to prevent behavioral drift.On this view, the chief benefit of psychologists’ participation lies in their ethical and professional competencies, which competencies can be used to thwart coercion by morally drifting interrogators. I don’t know why Behnke believes psychologists possess particular ethical dispositions and/or competencies, but even if they were uniquely trained in that regard, by the APA’s own ethical standards discussed above, if CIA interrogators ‘legally’ coerced information, no psychologist would have authority to intervene into or report such coercion. The official policy belies the individual justification. Now, if even if we are to imagine a heroic psychologist who bucked the law, this doesn’t absolve the other psychologists who not only ‘monitored’ interrogations but devised, shaped, and directed an entire interrogation regime. This describes the roles of Bruce Jessen and Col. Morgan Banks who are both believed to have deployed their expertise in evading interrogation to develop the C.I.A’s and military’s S.E.R.E interrogation program (survival, evasion, resistance and escape). Can we say of such a psychologist that his participation is better than anything else he could have done?
Suppose neither had participated at all, as surely was open to them, then an entire regimen of coercive interrogations would have been eliminated from existence. And surely that outweighs any conceivable benefit, if such there be, of their actual participation. Behnke might retort that the way the two devised their interrogation regime led to safer methods than would have been available without them. Even if this is true (I’m highly skeptical), it uses the specious comparative benchmark discussed above. Given that their methodology has been established to be torturous, then the correct standard of comparison is not whether without them the CIA would have invented more torturous methods, but rather whether they could have devised effective interrogation methods that shunned any hint of coercion. By the many accounts of experienced FBI interrogators, the most effective method does not involve coercion, and we can surmise that both Jessen and Banks could have built a program around that truth.
Let’s leave aside the case of individuals and turn to the topic of institutional responsibility for facilitating torture. We can note firstly that, in the context of political policy and as compared to individuals, institutions have a far broader range of counterfactual actions available to them. This is partially because they are responsible for many of the rules under which individuals must act and partially because of the great causal powers institutions have in the modern world. This is an often neglected fact and, in my opinion, it implicates institutions in a broader range of responsibilities than is normally acknowledged. We need to keep this in mind when we assess the APA’s actions and omissions.
We know that around 2006 after reporting made clear the coercive nature of U.S. interrogations, the Amercian Medical Association and the American Psychiatric Association both issued prohibitions on its members from even being present at interrogations. Against this background, how should we assess the APA’s insistence on the benefits of psychologists’ participation. Given the existing ban by the AMA and the Am Psychiatric Assoc., the APA arguably could have put a stop to the whole sordid mess by following suit. Here’s why: as mentioned above, it is continually argued, both by the heads of the APA and military brass, that participation by psychologists is essential to keeping interrogations safe. Their absence, then, would entail unsafe interrogations. Therefore, at the very least, the APA’s prohibiting member participation would have put considerable political pressure on the administration to discontinue these, by their own lights, unsafe interrogations. So, this is a conceivable, even probable, counterfactual outcome, one which we can use to assess the goodness of the actual outcome. What was the actual outcome? Detainee deaths and psychologically broken human beings. By the standard set out above, the APA’s actions were unjustified, and it should be found culpable for torture.
The issue of individual and institutional culpability for the torture that took place under U.S. control is a complex problem. Nevertheless, the only argument I’ve seen defending the participation by APA members is specious, and the blame goes to the individual psychologists who participated in coercive interrogations but also, and perhaps to an even greater degree, the professional association which endorsed such participation.
Tuesday, May 19, 2009
Advice, policy and action
One major line of defense John Yoo offers for his role in torture relies on the distinction between advice and policy (authority to prescribe action). (See the prepared statement he made before his testimony to the House Judiciary Committee back in 2008).
The thought is that setting policy, but not giving advice, is related to action in a responsibility determining way. This is because policy not only endorses an action (as right/wrong, viable/unviable, legal/illegal), it motivates by being the reason for the action. In short, policy can be a constitutive part of an action which depends on it; it is the reason which explains the action. This connection explains why we tend to believe that if an action like torturing someone is wrong, then the authoritative policy which directly calls for it is also wrong.
On the face of it, advice is different. In an advisory role, the content of the advice is not taken to have motivational force. Additionally, I may not be advising you to do anything in particular but rather just laying out what I take to be your options. This is what John Yoo claims of his legal advice: it merely laid out an interpretation of legal options, and it was neither his intent nor within his authority to prescribe which options, if any, are to be taken. Yoo claims it follows that he cannot be held liable for the actions of those who were directed by policy to act in accordance with such advice. This is because, we can say, a ‘responsibility’ gap exists between advice and action, the gap filled by an independent judgment as to whether to follow the advice. So, if someone must be held accountable for the torture, it should be those who formulated the policy and carried it out. They have a direct responsibility bearing relationship to the vicious act.
Let’s examine the claim about advice. When someone asks for practical advice, it implies that he has not made up his mind on what to do. Typically, upon being offered a piece of practical advice, the advisee deliberates, takes the advice into consideration among all the other known considerations, and arrives at a decision about what to do. The process of deliberation arguably makes the advisee solely responsible for the ultimate decision. Plausibly, this shields the advisor from responsibility.
However, the conclusions are different when the advisor has practical authority over his advisee. Usually we distinguish between contexts of advice and authority, because advice is not often taken to be authoritative, but this is not a conceptual point, but rather just an expression of how we talk. When someone has practical authority over another, his pronouncements/directives/assertions possess preemptory status among the other reasons the advisee may have. That is, whatever other reasons the advisee may have, they are overruled (and are taken to be overruled) by the authority. In this context, when an advisor makes a pronouncement, he understands it to constrain and/or function as a sufficient reason for action.
What was the context in which Yoo wrote the OLC memo? As Yoo himself notes in his testimony before the Committee, his advice was requested in a very particular context: whether the recently (at the time) captured Abu Zubaydah could be subjected to enhanced interrogation techniques, given that such techniques, so Yoo claimed, would be extremely helpful to and desired by the executive.
But the relationship between executive and the OLC is not one of desire satisfaction, it is the latter’s job to constrain the actions of the former. This is confirmed by the particular institutional role the OLC occupies within the executive branch. The following statement from the OLC ‘best practices’ statement is relevant:
“Our Office is frequently called upon to address issues of central importance to the functioning of the federal Government, and, subject to the President’s authority under the Constitution, OLC opinions are controlling on questions of law within the Executive Branch” (emphasis added).
That is, should there be any dispute on how to understand (and hence how to obey) a law, OLC memos are preemptory. This applies to everyone in the executive branch, including the President.
This undermines John Yoo’s basic defense. Although his advice did not take the form of policy, it went beyond the typical function of advice to supply mere considerations for deliberation. Due to the institutional authority granted to him, his advice took on an imperative like form.
Given his knowledge of the advisee’s motivations (we already know of the ‘principals meetings’ during which this whole cabal got together to discuss strategies to implement torture), Yoo’s affirming advice must be recognized to be motivational—and hence a part of the advisee’s decision to formulate the torture policy. This is what makes him culpable for his advice.
Tuesday, April 21, 2009
Question of responsibility
I believe that there is a significant moral distinction between interrogators and those who legally authorized them to torture.
The difference is two-fold. First, the authors of torture regime are authors. They shaped and otherwise made possible the kinds of actions in question. Generally speaking, we believe that the authors of actions are chiefly responsible, and hence chiefly to blame, for them. On my understanding, the CIA frequently abstained from certain techniques and carried them out only after requests for legal guidance were returned in the affirmative. So, from what we know, the following counterfactual is true: were it not for the OLC memos and the political authority of Cheney’s office, America’s torture chambers would not have existed (I’m leaving aside the evidence that it existed in places other than Bagram, Abu Ghraib and Guantanamo). Secondly, there is a significant difference in authority and power between the two classes, and this can generate conditions of duress which can be mitigating and perhaps excusing. There was an incredible amount of pressure placed on the intelligence community to manufacture results, and given the structures of authority in place, that pressure could not have been just ignored—at least not without consequences.
To be sure, these two considerations alone won’t settle the whole question of responsibility if only because the interrogators aren’t automatons—they too author their own behaviors. This is quite clear in interrogation, since it leaves much room for maneuverability and hence deliberation—and all this needs to be decided upon, and hence authored, by each individual interrogator. Moreover, the degree of exerted pressure is unknown, and independently of that, it is difficult to imagine that it amounted to a form of duress which would be excusing. In the end, one imagines, they could have walked away from the torture chambers and obeyed the Socratic doctrine to do no wrong intentionally.
I believe both points speak against the view, held by Spain’s attorney general, that if prosecutions are to go forward, they should be launched against individual interrogators and not the authors of the regime. Obama has finally made it clear (even after his attack dog Rahm Emanuel suggested otherwise just last weekend) that he believes otherwise. In response to questions this morning, he asserted that any investigation and prosecution of the torture authors will be, as it should be, the Attorney General's office to decide and pursue. Hopefully, and as early indications of Holder already suggest, our AG is less politically driven than Spain's AG.
Wednesday, March 11, 2009
Responsibility for viciousness
In a recent article, ‘From Captive to Suicide Bomber’, the Washington Post implicitly raises the fascinating question: How much responsibility does the US bear for the violent actions of those released from Guantanamo? (For a related article, go here).
There are two conflicting positions on this question, each of which bears some truth, but neither of which is complete or satisfactory.
The subject of the Post piece is Abdallah Saleh al-Ajmi, a kid picked up in Pakistan in 2001 and then shipped to Guantanamo from which he was subsequently released—4 years later. In March 2008, he was responsible for a suicide bombing which killed 13 Iraqi soldiers and wounded 42 others.
The first kind of position will use the very fact of the suicide bombing as sufficient evidence that he was, all along, a vicious terrorist. Character is destiny, they argue, for no person of moral virtue can become someone who contemplates arbitrary killing (let alone carries it out). The crucial mistake was to have released such a person in the first place. Even if there was not sufficient evidence to prosecute Ajmi in a court of law, we now know, from the standpoint of ashes, that his incarceration was justified.
One can have some sympathy for this view, on the grounds that it is difficult to imagine the kind of transformation it would require to yield a vicious murderer from an innocent. The view holds that there was no transformation; the alleged innocent must have ‘had it in him’ all along. If so, the US is not culpable for what he became or for the actions that flowed from what he became.
The Post article, however, suggests a very different picture. In the initial stages of his incarceration, the boy was, by most accounts, respectful and hopeful. It was a consequence of, among other things, the humiliation, degradation and abuse suffered while at Guantanamo, that he morphed into the suicide bomber. On this picture, the US is responsible for either creating the man’s viciousness or, at the very least, bringing to fruition a viciousness that would have otherwise remained infant and unexpressed. Critics of US foreign policy often point to a vicarious version of this mechanism to support their claim that US action in Iraq is the greatest recruiting tool imaginable.
What can we make of this divide? Although we intuit that a traumatic experience can alter someone’s view of the world and, at the extreme, even ‘break’ him, it is nevertheless mysterious how character can be so extremely malleable. We use the word ‘break’ only as a stopgap in our understanding. For the hopeful kid picked up in Pakistan and the enraged man who bombed the Iraqi base are, for all the differences, identical--the memories are the same. Nevertheless, if not his identity something significant changed. But what, and more importantly, how?
I don’t know the answer to either question, but I can suggest a reason why the first view--that Ajmi had it in him all along--can seem so appealing. Our ethical understanding of alterations in character depends upon our ability to conceive it in ourselves. I can understand, for example, your remaining angry at the friend who betrayed you, because I can imagine how I would be in similar circumstances. However, when we reflect on our own character, it is (almost?) impossible for us to identify ourselves with, for example, the imagined driver of a truck loaded with explosives, who intends to kill as many people as possible, including himself. What could such a person be thinking and more importantly how can someone who used to find such thoughts unthinkable become one who not only thinks them but acts on those thoughts. There are pictures of despair, hopelessness and rage that fill out and help explain how someone could do such a thing, but seeing ourselves as we do, i.e. as ‘normal’, I am suggesting we cannot see from here how any such explanatory framework ever could apply to us. There is a large gap that cannot be filled by ethical imagination.
Of course, this doesn’t establish that Ajmi must have been vicious coming into Guantanamo. I don’t believe that. The evidence strongly suggests a transformation, and we can believe this because there is ample empirical evidence that such transformations can occur. To believe he transformed is partly to believe in the evidence of its possibility. This is different from being able to imaginatively project ourselves into his situation (a paradigm ethical move). From the evidential standpoint, we view the subject as an object that is completely subject to forces beyond his control. No longer an agent of his actions, he becomes a non-responsible kind of thing. If so, the US who created the conditions of duress which typically generate character change, should take some responsibility not only for what they did to him at Guantanamo, but additionally for the actions he committed after his release.
The adoption of the second picture requires that we take a clinical, and wholly objective, view of him. He, and his actions, were a product of forces beyond his control. This is a difficult view to sustain, for being human beings we cannot continue to see other human beings as mere objects who are the products of social forces. After all, Ajmi did not become an automaton. Even in his second incarnation, he had thoughts and he made decisions, ones for which we would typically hold him responsible. Once we view a human being as a product of forces beyond his control, it is difficult to know where to stop. Sure, the US contributed to making him who he became, but so did his parents and his community. Moreover, for those who were either victims of the suicide bombing or else knew them, we are hit with the truth that resentment needs a local target. Of course, it is possible, and I believe appropriate, to direct such anger at the US, but is it possible or appropriate to leave it at that? If the victims' loved ones continue to resent Ajmi, can we say that they are simply mistaken?
The tension between these two views does not mean we cannot adopt both of them. In fact, excepting those with an agenda or who are personally connected, moral ambivalence attends familiarity with these kinds of cases. Ajmi became vicious and intended to kill, and for that he is subject to blame; however, when we learn of the horrific circumstances which nurtured and conceivably gave birth to his viciousness, we (want to?) believe that blaming him is inappropriate. Neither is wholly satisfactory, but neither are completely unfounded either.
Tuesday, May 27, 2008
The responsibility to hold others responsible by MT Nguyen, NYC
Calls for intervention. People dying avoidable deaths. The specter of callous dictators (is there any other kind?) subjugating a helpless citizenry. A delayed, ineffective and disoriented international response.
This general scene can be painted without embellishment to represent any number of events in the past 60 years. The proximal causes of death, just to name a few, can be attributed to the dictators or to a natural disaster or, in the most recent case, to the indifference of dictators to a natural disaster. The basic problem lies in how to handle this indifference (to name the least) to avoidable death. Avoidable deaths implies avoidable by some agency. If one is the agent that could help effect change, some of our moral intuitions suggest that one must.
Take Peter Singer's classic example. A man walks past a shallow pond and sees a child drowning. He could save the child without significant cost to himself (only his clothing would be damaged) . The question is: Is he morally obligated to save the child? Singer asserts that the answer is: obviously, yes. And how could it be otherwise?
That example is well drawn for the political situation Singer grappled with, namely, the famine in Bangladesh in the early 70's. One primary cause of that famine was a cyclone, but that was unavoidable; Singer's piece was written to convince citizens of the developed world to help avoid further deaths. Can a similar conclusion be drawn for the most recent cyclone disaster?
Four weeks ago, Cyclone Nargis hit Myanmar (or Burma, depending upon your political leanings) and killed, by some accounts, 100,000 people. What happened afterwards is morally worse: the Burmese dictators, slow to react, paranoid, and callous refused much needed foreign aid and foreign aid workers. In large measure, they failed and continue to fail in their role as agents of change. That illustrates one problem and sets up another. If a government refuses to protect its own citizens from avoidable death, then what is the responsibility of the international community?
Singer's example does not quite apply to Burma, for the appeal to aid can be effective only on the condition that the recipients accept. To be sure, the survivors of Nargis who require the medical care, fresh water and food would accept aid, but the problem is, and this is a significant obstacle, the route to them must go through their government. In such a scenario, is it the duty of the international community to do more than extend a helping hand? Some, notably Gareth Evans, called for military intervention to be put on the table. Willem Buiter at the Financial Times goes much further, calling for an immediate UN authorized overthrow of the Burmese government (!), and judged the current inertia to be "a confirmation of moral cowardice or incompetence, or both."
Buiter's piece addresses our problem quite cavalierly by asserting that national sovereignty has no intrinsic value and by implication should be subordinated and cast aside in cases of human rights violations. This is a stunning view because of its practical implications for international relations: essentially, the basic units no longer would be states but individuals, and the controlling interests would be those of individuals and not nations. Given that the whole international community is organized around the primacy of the nation, it is unclear how this suggestion, even if we agreed with it in theory, would be put into effect. To name but one concern, there should be skepticism (well-placed, given the history of interventions) that interventions are but handy tools for the advancement of developed nation's policy interests.
Nevertheless, Buiter's concerns with sovereignty are real. The case of genocide is the most extreme but instructive. That sovereignty has been invoked as a legal means to keep the international community at bay while a government slaughters its citizens should cause us to rethink things. We do not want a conception of sovereignty which permits murder with impunity.
A step in that direction is offered in the UN's treatment of this matter in their commissioned report 'The Responsibility to Protect'. Here the commission's authors (co-chaired by the above referenced Gareth Evans) recognize the significance of national sovereignty and attempt to arrive at a conception which does justice to our practice of human rights. Instead of seeing the two concepts as potentially hostile to one another (as Buiter's view has it), they build the idea of human rights protection into the analysis of sovereignty. This works by understanding the function of sovereignty not just in terms of the freedom to set the nation's own ends (constrained only by respect for another sovereign nation's ends), but additionally in terms of responsibilities, chiefly the responsibility to protect its citizens (particularly to secure the objects of a citizen's rights). The invocation of sovereignty would then imply accountability for rights protection. This conception preserves the centrality of the state, since it would remain the principle agent for ensuring rights preservation. However, since sovereignty is understood against the background of an international community, accountability would be to that community (specifically, to the UN). In the case of a nation's total failure to fulfill its responsibilities, there is no basis for a sovereignty claim.
This is a fruitful conception. Just as Kant believes individual autonomy implies moral responsibility, it is appealing to see that a nation's freedom cannot be the freedom to act in any which way it pleases. Sovereignty must be conditioned by some minimal conception of the good. Armed with this insight, we better grasp the grounds for any possible intervention into Burma. One advantage is that we need not put undue weight on the still infant notion of a human right. Another advantage is it clarifies the responsibilities at play. Accountability is genuine only when there is a practice of holding accountable. While the Burmese government bears the principle responsibility to protect its citizens, the international community (i.e. us) is responsible for holding them to that. This captures part of our duty as agents who can prevent avoidable deaths.
The case of Burma demands that the international community come to grips with its stance on the relationship between sovereignty and human rights. We need leadership, direction and decisiveness in this matter. Deliberation, by some accounts the pinnacle of rationality, is counterproductive when it means that people die in the meanwhile. This is not to say we shouldn't think about what to do; it is a lament that we haven't already come to a consensus about what to do.
Tuesday, April 8, 2008
Lessons from M.L. King by MT Nguyen, NYC
Last week marked the 40th anniversary of M.L. King’s death. Virtually every newspaper ran some piece or other praising King, his movement and its accomplishments. Most writers wanted to tell a success story, connecting King’s actions with the increasing economic prosperity of African-Americans. The Washington Post’s Eugene Robinson, an otherwise sober writer, pointed to Stanley O’neal (former CEO of Merrill Lynch) as the ultimate proof of progress. It would have been ‘unimaginable’, Robinson boasts, for a black man to attain such a grand position in King’s time. Or perhaps, to use another of Robinson’s examples, progress is to be measured in terms of the increasing number of blacks who enjoy houses in a suburban cul-de-sac. Be that as it may, are we really to understand the significance of King’s movement in terms of how many potential Wall St. CEO’s it paved the way for or how many cul-de-sacs it paved?
I don’t want to minimize the significance of economic opportunity and success as measures of a society’s justice, but it is myopic and distorting, both of the image of justice and King’s movement, to make economic prosperity the representative expression of an ambition much larger and less individually focused.
What then is King’s focus? Who is King talking to and what does he ask of them? In this context, it is instructive to study and take lesson from King’s incendiary 1968 speech, ‘Beyond Vietnam - A Time to Break Silence’. Understanding the aims related in this speech as the benchmark, a sober person would conclude that we Americans have made little progress and that the most important things are left undone.
One of the central aims of this speech is to articulate what King sees as alarming feature of the American ethos. He uses Vietnam as a lens through which to critically examine ourselves. He says, “The war in Vietnam is but a symptom of a far deeper malady within the American spirit.” And he diagnoses our illness in the following way: “When machines and computers, profit motives and property rights, are considered more important than people, the giant triplets of racism, extreme materialism, and militarism are incapable of being conquered.” And “The Western arrogance of feeling that it has everything to teach others and nothing to learn from them is not just.” Here he outright rejects a Robinsonian conception of progress. Instead, the measure of progress towards justice is to be found in nothing less than an ethical transformation of national character.
Who is King addressing? Who bears the responsibility to effect this transformation?
It is a difficult problem to pinpoint who King aims to address and hence what he is trying to do when he confronts America’s racism, extreme materialism and militarism. There are at least three different possible interpretations. First, one can say that his activities are expressions of moral outrage addressed to all Americans, aiming to open dialogue between him and them. Specifically, King hopes to appeal to the moral sensitivities of those bearing the objectionable ethos. In doing so, he hopes to effect change through persuasion. The success of his movement is measurable then, in part, in terms of the persuasive force of its moral argument. This view holds that as directed at members of a shared moral practice the argument succeeds when the moral deliberations of the racist, extreme materialist and militant are transformed by it. This assumes that the invitation to moral dialogue is accepted and those who accept are susceptible to moral change.
This view can be challenged on the grounds that it perilously assumes that dialogue and argument alone can touch, let alone transform, the 3 characters in question. This is perilous because, arguably, such characters are insusceptible to dialogue. Those who genuinely believe they alone can teach and have nothing to learn are hardly the ideal candidates for public moral discourse.
A second view of King’s target audience is more plausible. His audience consists of those who can grasp the content of his message but who are, nevertheless, unmoved to act on it. This view is supporting by his assertion that, “It is a sad fact that because of comfort, complacency, a morbid fear of communism, and our proneness to adjust to injustice, the Western nations that initiated so much of the revolutionary spirit of the modern world have now become the arch antirevolutionaries.” The problem is not the absence of moral knowledge, but the absence of willpower. Thus, the purpose of reaching out is not so much to persuade the persuadable of truths they fail to recognize, e.g. that racial, economic and global injustice exist. The purpose is, against their inertia, to move such persons to action.
Action against what? King’s skepticism about the effectiveness of moral dialogue, at least as the only avenue to take, led him to see confrontation as necessary. What differentiated others from King was not moral knowledge but rather the commitment to reject the status quo. While others preach patience by citing ‘progress’, presuming that things would eventually, somehow, change, King committed himself to eliminating racial injustice. While those others deplore confrontation, King rejects the viciousness of the racist, materialistic and militant and the institutions supporting and supported by them, and he sought in a lifetime’s work to stand up, resist and eradicate them. It was not due (only) to the moral persuasiveness of his argument, the message of King’s vision came out of the power of his determination and his ability to move others to join him in confronting the viciousness of the American ethos. It is easy to forget amidst the frequent concatenation of King with peace that he was an incendiary figure. Many people hated him. This is not merely because he disagreed with them; rather, as Socrates did, he got in their faces and in their way.
King’s aim and his message then cannot be defined so narrowly in terms of economic prosperity. He asks for nothing less from his intended audience than to put themselves on the line, confronting the objectionable American ethos, in the service of justice, not only for Americans but for all the world’s citizens. He was in that way a cosmopolitan.
Finally, if King’s death reminds us of anything, it reminds us of the perils of his ambitions. He didn’t just die, he was murdered. In that light, one may wonder whether it reasonable to ask that others risk their lives or livelihoods for the sake of justice. It is important here to see King as not preaching, as many other moralists do, a rigid form of moral obligation. He does not speak of duties owed to others, but rather the responsibilities of individual choice, in particular, responsibilities one has to oneself. It is up to us as individuals to make up our own minds as to whether we will continue to remain silent in the complacency of our comfort or whether, in making the right choice, as King concludes, “we will be able to transform the jangling discords of our world into a beautiful symphony of brotherhood.”
Monday, February 25, 2008
Are corporations psychopathic? by MT Nguyen, NYC
The conceit of the popular documentary “the Corporation” is that corporations are psychopathic. The documentary begins with the legal maneuvers used to baptize the corporation as a legal person. From there it goes through a list of psychopathic character traits (as given by the DSM, the psychiatric diagnostic manual), and applies each item to the corporation: no feelings of remorse, incapacity to feel guilt, habitual deception, inability to maintain social relationships, etc.. The documentary is rhetorically effective and the checklist is visually arresting, but is there a sense in which the truth is spoken?
There are the naysayers. Taken literally, they quip, the documentary’s conceit is obviously false and misguided. Corporations are not in fact persons, and thus cannot be ascribed psychological states like guilt or remorse. No wonder then that they cannot feel guilt or remorse! Only a confusion between, or willful conflation of, legal personhood and actual personhood could generate the rhetoric and conclusions of the movie.
But this is semantic quibbling. I’m sure no one, including the creators, really believes that corporations can feel guilt or have friends or have the intentions necessary to deception. This is true even if we are inclined in ordinary speech to refer to, for example, Enron’s lies or Arco’s uncaring explorations into the Alaskan tundra. What they surely meant is that the executives and the shareholders they represent collectively lied or are collectively negligent. While one may dispute the literal truth of these assertions by denying the existence of collectives, they are not the product of obvious confusion.
Be that as it may, there is one psychopathic-like trait on which all that we want to hang on the corporation rings true. This is the failure to take responsibility for the destructive outcomes of its decisions. This is really what grates at the corporation’s critics: the avoidance of blame, particularly when justified by the idea that corporations have no responsibilities other than to their shareholders. One question we can ask is: Is it true that this trait is part of the nature of the corporation?
One of the most influential proponents of an affirmative answer is the Nobel prize winning economist Milton Friedman. He was infamous for denying that corporations have any social responsibilities beyond increasing their profits. His reasoning relies upon a dichotomy: either be socially responsible or increase one’s profits. His argument focuses on the decisions of a CEO who is an employee of a publicly traded company. As such that CEO’s primary responsibilities are to the shareholders. If so, Friedman smugly declares, it would be illicit of her to use her powers to promote socially responsible activities at the expense of shareholder profit. He concludes that any social responsibilities, if the CEO wants to acknowledge them, should be undertaken as a private citizen and not as CEO.
In a recent speech entitled ‘Creative Capitalism’ given at the 2008 World Economic Forum, Bill Gates offered a different picture of the modern business. Following Adam Smith, Gates allows that businesses have a motive to supplement that of profit, a motive he called ‘recognition’. To be recognized, in Gates’s sense, is to be the object of another’s moral praise. A corporation’s recognition that recognition is a value makes it non-psychopathic, for it implies the non-instrumental value of other’s judgment. He offered numerous examples of how a company could utilize its unique competency to enhance the prospects of the world’s poor. Skeptics and all around nay-sayers immediately pounced upon Gates’ speech pronouncing that this is the same program which used to go by the name of Corporate Social Responsibility, which program had been, so the skeptics assert, thoroughly refuted. Whether Gates’ suggestions are new is irrelevant, but I don’t see how anything he said is self-refuting or amounts to socialism.
Assuming the recognitional motive, which responsibilities is a CEO (allegedly) failing when, in her role as leader and trustee, she directs some of the company’s research and development team to devote themselves to solving problems that their competence is specially honed to solving? True, their skills could be used to solve problems that could be applied to more lucrative markets, and that might be seen as irresponsible. But how could it be irresponsible to solve problems in third world markets when such markets bear a relationship to profit and recognition. As several recent books have argued, here and here, there is profit to be attained in setting up the right kind of services for such untapped markets. Even if there isn’t, however, the acquisition of recognition can rationalize such ventures.
This model of a business is not a wholesale reinvention of capitalism, but no doubt many would object to the fantasy they consider a corporation’s interest in recognition. A corporation’s interest is in being recognized, not in being worthy of recognition. The former is attainable through good public relations and high-priced lawyers, and doesn’t require the costs of aiming for the latter. With this maneuver we fall right back into psychopathy and its desire to want only to appear good, and not actually to be good.
But why does a corporation have to see things in this way? We might believe such a thing if we believed in the corporate version of ethical egoism. Ethical egoism is the view that whatever an individual does, she should do only as a means to maximizing her own interests. On some versions of this view, to demand someone behave altruistically is to demand she undermine herself, for in acting for others she would be literally acting self-lessly. Framed in this way, altruistic (non-egoistic) behavior is a non-starter, for a person would have no reason to act against her interests (broadly construed). Analogously, with the corporation. Its interests are whatever they are, and to demand that it behave with the view to enhancing social good is unreasonable, because that demands the company act against its interests; that is, demand that it act against itself.
This type of reasoning assumes that acting for the interests of others is incompatible with acting on one’s own interests. This is certainly false in the case of individuals. When I do something out of love for my family, I am at once acting responsibly vis-à-vis my family and enhancing my own happiness. How can that be? It is because my family’s interests are partly constitutive of my own interests: I can’t conceive of myself and what’s good for me independently of my family. This doesn’t mean that whatever interests my family has, I have as well. It does mean that I recognize a responsibility to my family’s interests, and to take them into account when I decide what to do.
An analogous case can be made about a corporation and the social environment in which it operates. Instead of seeing its interests as wholly independent of the larger community’s interests (in the case of transnational corporations, the community is essentially the world), the corporation can see them as intertwined. There is then nothing inherently contradictory about a corporation’s maximizing its profits and advancing social good at the same time. Of course, should a company refuse to see things that way, that is it’s choice. It is important to note though that it is a choice, and like all choices, one for which it can be held accountable.
But beyond the mechanisms of social blame and legal sanction, since the corporation can acknowledge reasonable options beyond maximizing profits, should it wallow in a psychopathic existence, that is the way it wants to be and not the way it that it must be. Therefore, the corporation differs from the genuine psychopath: it can hold itself accountable; the problem is it just typically refuses to do so.
Friday, February 8, 2008
Private contractors
I will take up the idea of corporate responsibilities in a later post, but I wanted to pose the following for discussion.
CIA Chief Michael Hayden confirmed this week the use of private contractors in the interrogation of 3 waterboarded detainees.
Now, Milton Friedman famously argued in a NY Times column that corporations have no social responsibility but to increase their profits; many others have avowed this position. Is it an implication of this view that those private corporations involved in waterboarding bear no responsibility? They were just doing what they should, increasing their profits?
Is this what Hannah Arendt meant by the banality of evil?
Thursday, February 7, 2008
Facilitating extraordinary rendition
Last year, the ACLU filed a law suit against Jeppesen Dataplan charging that it facilitated an illegal activity, namely, our government's extraordinary rendition program.
Demonstrating the courage of its convictions, a Justice Department lawyer argued to a federal judge recently that pursuit of this lawsuit would risk divulging state secrets. In other words, although it is a conviction that rendition is justifiable, no justification of it can be publicized--even to the judiciary.
I want to leave aside the extraordinariness of this line of reasoning to ask a different question: to what extent should a company be legally culpable of intentionally facilitating immoral (and, we can add legally questionable) governmental activities, which facilitation is requested, perhaps even demanded, by the government itself? This case poses a greater problem than the one involving the question of immunity for the telecommunications industry now facing the Senate. It does so because facilitating torture (in this case, providing transportation to CIA 'black sites') is patently wrong, while facilitating spying is not (or not necessarily).
What do people think?
Saturday, February 2, 2008
Are we all responsible? by Matias Bulnes, NYC
Over the last few years we have witnessed a number of measures carried out by George W. Bush’s administration in the name of US national security. To say the least, some of these measures lay on the verge of the overtly immoral and arguably illegal. It defies reason that some people react with surprise to accusations against Bush’s government of using or endorsing illegitimate means to pursue its political ends. I might conceive (although not without difficulty) that such accusations could end up being dismissed upon serious debate. But it just escapes my imagination that the denial of both prisoner’s rights and habeas corpus to those hitherto suspects of terrorism held in Guantanamo could be considered routinely moral and legal. That’s like trying to hide the sun with one finger.
But I do not intend to raise accusations already made. The point I want to make here surpasses Bush’s administration and even surpasses the US and the present time. I’m concerned with the role of citizens as passive witnesses of actions they find heinous done in their name and under their authorization. I’m concerned with our political responsibility as passive witnesses of atrocities being done in our name by our government.
Many of us are of the opinion that some of Bush’s measures to fight the Islamic threat are immoral. In fact, I daresay that most of us believe that the immorality of the situation in Guantanamo or of the recently uncovered Extraordinary Rendition policy is simply incontestable. But fewer would voice their opinion publicly and even fewer do anything to actively hinder these allegedly hideous actions. We rather turn to the comfort of our homes and personal lives than having to face the uncritical mob of Bush’s supporters.
Convenient though it is, this passiveness does not free us of political responsibility. After all, we all participate in this tacit contract we call the US society which defines the roles each of us plays in the political structure, including the democratically elected authorities—in particular, the federal government. In virtue of this tacit contract, the government’s authority to do everything it does comes from each one of us for as long as it does it in our name, that is, for as long as the government is uncorrupted and democratic. Since I want to believe that Bush’s government is uncorrupted, I shall believe that it does what it does in my name and under my tacit authorization. And if I’m partially the source of its political authority and power, I must accept a share of the political responsibility in its actions.
And so must all citizens; even those who didn’t vote for Bush. For it is essential to a democratic system that the state must be neutral with regard to the various subgroups within the society, be them religious, political, etc. All citizens should (and expect to) count the same in the government’s motivation to pursue the well-being of the nation, regardless of their political affiliation and so regardless of whether they voted for it. Hence, it is implicit in a democratic system that supporters and opponents of the government are to the same extent the partial reason of the government’s actions and so they all are in an important sense responsible for them.
I think that we have recognized this fact in the recent history. After World War II, Germany as a whole, not only Hitler’s supporters, undertook political sanctions for the Holocaust. And in fact it would have seemed unjust if those passive witnesses of the atrocities committed by the Nazi regime went unpunished. For oftentimes their apathy was not rooted in ignorance of Hitler’s extreme views but in the comfort of knowing themselves to be the ultimate beneficiaries of Hitler’s political and military actions. The political structure they willingly participated in makes them be better described as accomplices than innocent witnesses.
This is not, of course, to say that all members of a society have the exact same degree of responsibility in the actions of their government. In fact, there can be little doubt that some members of the Bush administration have a double share of responsibility: like all US citizens, for participating in the social contract; and unlike most US citizens, for having devised such hideous ways of pursuing the well-being of the US. In general, supporters of Bush’s questionable policies differ from apathetic citizens in that they facilitate the political climate to conduct such policies. Hence, they seem to be more responsible, though not the only ones responsible.
Now one thing is to bear responsibility on a certain immoral action; another quite different is to deserve to die for it. In no way do I want to suggest that the responsibility borne by an average American gives Islamic terrorists the right to kill her, as in fact they did on 9/11. For one thing, though I’m inclined to think that non-combatants should never be targeted by military forces there is a whole literature on this issue and I’m not prepared to defend any position. For another, I don’t want to begin to loose the tenure I’m yet to get before I even go out to the job market—as similar suggestions prompted Ward Churchill’s loss of his tenure.
But whatever our moral desert, the important question is how to get rid of the responsibility that yields it. And it should seem indeed very tragic if breaking the social contract were our only chance. For as far as I can see, individuals can break the contract in one of two ways: renouncing their citizenship and moving to another country; or acting in ways that explicitly violate their political duties. Both seem unreasonable and what’s worse, both seem to no avail.
Is it then in our fate to carry this moral burden? No, if the previous analysis is correct. Recall that the source of our basic responsibility is our being in some important sense the partial reason for these actions, in virtue of the tacit social contract we participate in. Hence becoming at the same time a reason against these courses of action within the limits of the social contract should counteract the basic responsibility. If, for example, an individual were to participate in legitimate public demonstrations against those actions, if she were to articulate and express cogent reasons against them, or if only she publicly expressed her dissent, all the same she would be giving the government reasons, political and/or moral, not to pursue those courses of action. Should an individual do this with enough eagerness, at the end of the day it would seem unjust to blame her for the outcomes, even if her efforts did not suffice to stop the immoral actions.
In sum, I believe there is hope for us moral citizens who deem Bush’s actions illegitimate. Not only do we have a chance to purge our guilt but it is our moral duty to do so. I have written this article as an attempt to fulfill mine.
Statement
Terrorism, we’re told, demands quietism. In the aftermath of 9/11 White House press secretary Ari Fleisher sought quietism through the chilling effect of an executively authorized declaration: Americans should watch what they say, what they do.
We say that the underlying viciousness of such forms of coercive power needs to be confronted. We believe we have a responsibility to confront such vice, for the worst kind of quietism is voluntary. This responsibility is grounded in at least two ways. First, most of what our governments do, for good or bad, they do as our representatives. Does it matter whether we actually voted for any particular administration? Those who voted for, and supported thereafter, any particular government are in a straightforward way causally responsible, but this does not absolve those who voted differently or not at all. All citizens voluntarily falling under the rule of any democratically elected administration tacitly legitimize such rule. Either directly or indirectly, then, we all legitimize their actions, and must bear responsibility for such legitimization.
Second, independently of our own governments, we believe being human carries its own responsibilities. Institutional policies, we see, often have horrific outcomes, especially and disproportionately so, for the world’s poor. The widespread, and widely known, shortfalls in access to the objects of human rights represent an intolerable state of affairs. We believe the recognition of this fact, whether the outcomes are accidental or intentional, demands, morally demands, a response. If the policy outcomes are accidental, it is inhuman to fail to reflect on how they may be prevented. If the policy outcomes are intentional, it is inhuman to fail to confront them and attempt to undermine their effects.
As we see it, we have not discharged our responsibilities. It is a difficult question what one must do or say in order to fulfill one’s obligations. It is an even more difficult question, given our disparate stations and geographical locations, what activity we can share to fulfill our collective responsibilities. This is why we pursue this project Interventions: it offers us an opportunity to do something to jointly face up to and bear the responsibilities we believe we have. Our forum is not intended merely to express our ideas in agreement or disagreement with institutional policies, but for stimulating discussion about issues crucial to imagining a more just world. For this reason, all comments, observations, and general feedback from our readers will be welcome.
The general orientation of this forum is domestic and global justice, and our intention is to fill the lacunae between uncritical journalism and theoretical abstraction.
--Editors
