The Church and Torture
The nasty subject of torture, not normally a headline-grabbing topic in the twentieth century, has recently been catapulted to a much higher level of prominence in public debate throughout the world in the heightened atmosphere of tension following the 9/11 terrorist attacks.
What are we Catholics to think about this subject? While recent magisterial statements (none of them definitive and infallible) have reprobated torture, Catholic theologians and apologists still face a challenge. The overall testimony of our authorities Scripture, Tradition and the magisterium over three millennia is by no means very clear, or even obviously consistent, in regard to the morality of intentional infliction of pain.
Even deciding what exactly we mean by torture is not easy. The Catechism of the Catholic Church describes it as "physical or moral violence" (CCC 2297); the definition given by the 1984 United Nations Convention on Torture is "the intentional infliction of severe pain." The words violence and severe are themselves somewhat vague. Who draws the line and where? as to which specific practices are harsh enough to correspond to those words? What has become clear in the contemporary debate is that while many shudder-evoking practices (which needn't be spelled out here) are recognized by everyone as meriting the name torture, there is no consensus about whether other less extreme interrogation techniques really count as torture: for instance, sleep deprivation, being kept under harsh temperatures or in uncomfortable positions, or "waterboarding" (which causes a brief, panic-inducing sensation of being about to drown but no pain or injury). Since no Catholic magisterial intervention so far offers any real guidance for resolving this controversy, the only methods we can be sure are included under "torture," when that word appears in Church documents, are those in the former group.
Punishment in the Bible
A historical overview of Judeo-Christian thinking on this topic is helpful. Sacred Scripture nowhere endorses torture for the purpose of forcing people to act or speak against their will, but the Old Testament does clearly teach that severe and intentional infliction of pain was willed by God not only as eternal punishment for the wicked in hell but also as humanly imposed temporal punishment for convicted malefactors (e.g., Lev. 20:1-2, 14; Deut. 22:23-24; 25:1-3). Also, fathers are urged to discipline wayward sons by soundly beating them (Prow 13:24; Sir. 30:1, 9, 11-13).
Now, of course, we know that the more perfect law of Christ disapproves of certain previously endorsed practices such as the harsh and vindictive "eye for eye and tooth for tooth" (Matt. 5:38-39). Nevertheless, Catholic faith in the inspiration and inerrancy of all Scripture disallows us from qualifying such practices as intrinsically (always and everywhere) evil or unjust. Indeed, in primitive nomadic societies like that of the Hebrews during the Exodus, where even houses were nonexistent never mind secure prisons! how were serious but non-capital crimes to be deterred if not by such penalties as the flogging prescribed in Deuteronomy? Moreover, while Jesus also refused to approve two specific proposals for inflicting a cruelly painful death on sinners (John 8:7-11; Luke 9:52-5), he stopped short of leaving us any general, explicit repudiation in principle of painful punishments either for criminals or (less severely) for unruly boys. (Indeed, the final book of the Bible speaks of a heaven-sent "torture" of five months' duration one so agonizing that men will long for death as a relief [Rev. 9:1, 3-61.)
Vacillation in the Early Church
This inconclusiveness of the New Testament in regard to torture was reflected in the pendulum-swinging vacillation of Catholic theologians and lawmakers of the patristic period. Some who lived under the pagan Roman regime, such as Tertullian, took a totally pacifist stance, claiming that Christian standards of behavior were irreconcilable not only with complicity in torture but with any kind of military service or even law enforcement. But when the empire became Christian in the fourth century, such impractical otherworldliness rapidly disappeared. While some barbarous customs were phased out (e.g., masters having the right to kill and torture slaves, gladiatorial combats and other bloody spectacles, major physical abuse of children by parents, and the branding of prisoners on the face), other oppressive practices remained legally established, notably slavery and torture as such. The fifth-century Theodosian Code authorized torture, either as a punishment or during judicial interrogations, for no fewer than forty specified situations. Not a word of protest against these laws from any contemporary pope or bishop is on record. Even the great St. Augustine, while deploring the plight of those judicially tortured in the attempt to force confessions, ends by reluctantly justifying this procedure as a seemingly unavoidable evil in a fallen world where crime somehow has to be detected and punished rather like the death of innocent civilians (called "collateral damage" these days) that is inevitable even in a just war (see City of God, 19:6).
In the sixth century we find the law-reforming Emperor Justinian echoing Augustine's reservations about judicial torture in his Digest, thereby probably giving an impetus to its eventual abolition. Three more centuries pass before we find further relevant legal evidence about criminal processes in Rome. By this time, probably under the influence of Germanic and Frankish customs (which had never included interrogatory torture) as well as continuing Christian reflection, all judicial torture for the purpose of extracting confessions of guilt had at last been abolished. Our witness is Pope St. Nicholas I, writing in 866 to the recently converted Bulgarian prince, Boris, who has asked the holy pontiff for guidance on how a Christianized society should be run. Section 86 of Nicholas's long response reads as follows:
If a [putative] thief or bandit is apprehended and denies the charges against him, you tell me your custom is for a judge to beat him with blows to the head and tear the sides of his body with other sharp iron goads until he confesses the truth. Such a procedure is totally unacceptable under both divine and human law (quasi rem nec divina lex nec humana prosus admittit), since a confession should be spontaneous, not forced. It should be proffered voluntarily, not violently extorted. After all, if it should happen that even after inflicting all these torments, you still fail to wrest from the sufferer any self-incrimination regarding the crime of which he is accused, will you not then at least blush for shame and acknowledge how impious is your judicial procedure? Likewise, suppose an accused man is unable to endure such torments and so confesses to a crime he never committed. Upon whom, pray tell, will now devolve the full brunt of responsibility for such an enormity, if not upon him who coerced the accused into confessing such lies about himself?
The Enormity Returns
If only all of Pope Nicholas's successors had stuck to his humane and Christian repudiation of confession-extracting torture! After another three centuries, though, the European revival of ancient Roman law started bringing this "enormity" back into secular judicial processes at around the same time that a new, militant and virulently anti-social heresy, Albigensianism, began to threaten Christendom. Lamentably, Church leaders soon succumbed to the temptation to fight this new menace by the old, barbarous methods then coming back into vogue. By the mid-thirteenth century, Pope Gregory IX had mandated the death penalty for unrepentant heretics (something the Church had never countenanced in its first 1,100 years), and his successor, Innocent IV, had mandated for the newly established Inquisition the use of confession-extracting torture (with a severity only stopping short of danger to life and limb) for those accused of heresy. St. Nicholas I's ninth-century condemnation of this practice had fallen into oblivion, and more than three more centuries would pass before Catholic voices few and isolated at first began to call for the abolition of torture as contrary to the spirit of Christ's gospel. But all the popes and the majority of theologians up until the eighteenth century (including even the great moralist and Doctor of the Church St. Alphonsus Liguori) continued to endorse confession-extracting torture. It was not until 1816 that a bull of Pope Pius VII finally enjoined all Catholic rulers to abolish this practice.
The next one-and-a-half centuries were marked by virtual silence from Rome on the subject of intentional pain-infliction prior to Vatican II's denunciation of "physical and mental torture" as one of many other "disgraceful" social evils that today "poison human civilization" and "debase the perpetrators more than the victims" (Gaudium et Spes 27). In a 1982 allocution to the International Red Cross, John Paul II echoed this pastoral conciliar statement and urged universal compliance with the Geneva Conventions' prohibition of torture and adding, "The disciple of Christ spontaneously rejects every recourse to such methods, which nothing could ever justify." Finally, the 1992 Catechism, speaking of "respect for bodily integrity," describes torture as "physical or moral violence" and affirms that its use "to extract confessions, punish the guilty, frighten opponents, or satisfy hatred is contrary to respect for the human person and for human dignity" (CCC 2297).
Let's Make Some Distinctions
After this review of the Church's less-than-stellar track record on torture, two questions seem particularly relevant: first, how can the Church's present doctrine on torture be expressed in theologically precise terms? And second, does this present doctrine contradict previous doctrine? To answer these questions, we will need to keep in mind several important distinctions.
- We must distinguish between doctrine (whether infallible or merely "authentic") and theological or canonical opinion. The former includes only those propositions of faith and morals to which the Church requires assent on the part of Catholics. With infallible doctrine this is an irrevocable assent, corresponding to the absolute certainty with which the Church guarantees its truth. In the case of non-infallible but "authentic" (or "authoritative") doctrine, the assent required is not final and irrevocable, because the Church has not (or not so far) proposed it as being more than morally certain. It has, let's say, a 99-percent-plus probability of being true. (Classical Catholic theology defines a morally certain proposition as one we believe is so close to absolutely certain that we can safely act on the presumption of its truth without fear of being in error.) Less than morally certain propositions fall into the category of more or less probable (and hence, more or less freely debatable) opinions.
- We also need to distinguish between Church doctrine (involving the magisterium or "teaching Church"), which requires our internal assent to certain propositions, and Church legislation (involving the "governing Church"), by which some or all Catholics are commanded, permitted, or forbidden to carry out certain external actions but without necessarily being required to agree internally with such legislation. According to a centuries-old consensus of approved theologians, only universal Church legislation understood as that which obliges all (or at least the great bulk of) the faithful around the world enjoys an absolute guarantee, based on Christ's promises to his Church, of being neither unorthodox nor seriously harmful in itself. (Examples would be the famous five "precepts of the Church" see CCC 2041-2043 or liturgical law applying to all the Latin-rite faithful, such as that in both the pre- and post-conciliar Roman Missals.)
- Another key distinction is between kinds of action that are intrinsically evil and therefore objectively morally unjustifiable under all possible personal, social, historical or cultural circumstances and kinds of action that could be justified under some circumstances but not under others.
- Finally, let us distinguish between different possible purposes of torture:
(a) for extracting confessions of guilt; (b) as a legally authorized punishment for criminals; (c) for extracting information; and (d) illegally, for sheer vengeance, sadistic pleasure, or intimidation of one's adversaries.
What We Know for Sure
Now we can address our two key questions. First, it seems to me that the only infallible teaching we have on the subject is the intrinsic evil of 4(d). All such behavior by private citizens is manifestly contrary to the infallible precepts to love our neighbor and obey just civil laws, taught plainly in Scripture and by the universal and ordinary magisterium throughout the centuries. This is a crime that stops just short of murder: legally prohibited (and diabolically motivated?) assault causing grievous bodily harm. I am confident that no Catholic theologian, let alone pope or bishop, has ever dreamed of justifying such extreme and blatant criminality.
In regard to 4(a), 4(b) and 4(c) above, Church teaching so far is less absolute. The clearest case is probably 4(a), legalized confession-extracting torture. This was papally condemned as "totally contrary to divine law" as long ago as 866 as well as recently (implicitly in Gaudium et Spes and explicitly in the Catechism). For the reasons already set out more than a millennium ago by Pope St. Nicholas, we may confidently describe authentic Catholic doctrine as condemning this practice as intrinsically evil. Was this doctrine officially contradicted, though, during those second-millennium centuries in which papal and conciliar decrees authorized and even mandated confession-extracting torture? No. For those decrees were only ever legislative in character, not doctrinal, and never reached the point of universality as defined in (2) above. They never applied to all Catholic countries and never obliged the great bulk of the faithful in the countries where they did apply but only a tiny minority (less than 1 percent): secular rulers and judges, bishops, inquisitors, and the torturers themselves.
We have to note, though, that for many centuries at least throughout the entire patristic era no Catholic doctrine at all on this subject had yet been developed. Popes and bishops neither condemned confession-extracting torture nor required Catholics to assent to its moral legitimacy. So it was all left, by default, as a matter of opinion. We also have to admit, of course, that while the authentic doctrine against legalized confession-extracting torture was never formally contradicted by the magisterium between the thirteenth and eighteenth centuries, it certainly fell into disastrous and complete oblivion for at least the first half of that period. Bulgaria was a little off the beaten track, and Nicholas I's response was addressed only to that land, not to the universal Church. Leading historians think it likely that the medieval popes never even knew about it, but Augustine's City of God, with its grudging acceptance of this dreadful practice, was core-curriculum reading for medieval clerics. His tragically mistaken opinion made a comeback for half a millennium.
Let's turn to 4(b) above severe pain-infliction as legally imposed punishment. I have already mentioned biblical reasons for not qualifying this as intrinsically evil. A further justification offered by all classical theologians, including St. Thomas Aquinas (ST, II-II.65.2), appears to have logic on its side: If even capital punishment is not intrinsically evil and that remains Catholic magisterial teaching to this day then lesser punishments such as flogging can scarcely merit that description. Nevertheless, it is also true, perhaps paradoxically, that while most of us eventually become resigned to the inevitability of our own death, the prospect of suffering intense pain strikes great fear into our hearts. Also, Vatican II's point is well taken: The torturer himself, steeling his soul to the screams of agony he intentionally produces, tends to become brutalized and dehumanized in a way that is scarcely paralleled by, say, firing a rifle or flicking a switch that opens a trapdoor or begins a process of lethal injection. So it seems at least highly consonant with the merciful example of Christ and the spirit of his gospel to raise the ethical bar, as it were, from its Old Testament level in order to promote, and even insist on, the universal abolition of torture, as well as capital punishment, as a means of controlling crime. I would interpret the Catechism, as well as John Paul II's words to the Red Cross, in this way.
The Ticking Bomb Scenario
There remains 4(c), torture by civil or military authorities for extracting information from detainees. This, of course, is precisely the kind of torture that lies at the center of the present debate in the context of terrorism. It seems notable that this particular reason for inflicting severe pain is conspicuous by its absence from the list of purposes or objectives that the Catechism says cannot justify torture. If (as I have argued from Scripture and Tradition) severe and intentional pain infliction is not intrinsically evil, this omission from the main contemporary magisterial statement on the subject could be taken to imply that the Church's jury is still out over the legitimacy of torture in at least the extraordinary emergency of the "ticking bomb" scenario: a known terrorist has been captured who possesses essential information as to how to locate (or defuse) a bomb set to explode very shortly, killing hundreds, maybe thousands, of innocent civilians. John Paul's words to the Red Cross "nothing could ever justify" torture would weigh against its legitimacy even in such an extreme case. But then again, it could be urged that this papal statement is an isolated one, was made a decade before the Catechism was promulgated, and has less authority than the latter. (The Red Cross allocution is undoubtedly of very minor magisterial authority. It was never even published in the Church's main official record, the Acta Apostolicae Sedis.)
I suggest that readers form their own opinion on this last and (probably most difficult) point. I also invite them to consult my much longer online article on torture (www.rtforum.org/lt/lt119.html) for my argument that, in spite of initial appearances, we should not read article 80 of John Paul II's encyclical Veritatis Splendor as being intended to settle the whole question with a condemnation of all severe and intentional infliction of pain as intrinsically evil.
Fr. Brian Harrison, O.S., is a professor at the Pontifical University of Puerto Rico. He is a prolific writer on matters of liturgy and canon law.
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