After the attacks that took place on September 11, the war on terror reached unparalleled heights. To say the least, the nature of the attack stirred an anger so great in Americans that many of them –feeling violated during the attack– did not hesitate to express support for the use of torture on those who can give answers as to why the attacks were made and who were responsible. In fact, no less than an officer of the US Air force noted that there has been a groundswell of support among the general population regarding the need to permit torture interrogation of terrorists and suspected terrorists in certain cases.
In a paper entitled Torture Interrogation of Terrorists: A Theory of Exceptions, Major (USAF) William D. Casebeer, Ph.D. noted that, since September 11, there has been a groundswell of support among the general population (and even among some professional ethicists) regarding the need to permit torture interrogation of terrorists and suspected terrorists in certain cases.
The arguments in favor of torture interrogation are usually consequential; they rely on the horrific outcomes of failing to torture certain kinds of terrorists (such as those that possess information about the planned use of weapons of mass destruction) for their moral force. The arguments against torture interrogation are sometimes consequential, but most often deontological; they usually rely on some conception of inviolable human rights and the duties that correspond to those rights for their persuasiveness.
The purpose of this paper is to look into the very nature of torture with respect to getting information from terrorists that may help the war on terror. Is there any reason in the world that would justify the use of torture on any human being? What are the moral issues of using torture as a means of getting information? Do we really want this mode of questioning to be part of the American way of getting things done? Does the end really justify the means?
To begin with, let us first examine the definition of torture. According to the Stanford Encyclopedia of Philosophy, torture is basically the intentional infliction of extreme physical suffering on some non-consenting, defenseless person as well as the intentional, substantial curtailment of the exercise of the person’s autonomy. The United Nations have taken note of the fact that torture is undertaken mainly for four reasons: (1) to obtain a confession; (2) to obtain information; (3) to punish; and (4) to coerce the sufferer or others to act in certain ways.
The Convention against Torture and Other Cruel, Inhuman, and Degrading Treatment or Punishment (CAT) was adopted by the U.N. General Assembly in 1984 and has been ratified by 129 countries, including the United States in 1994.
It defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining information . . . or confession:] and the convention makes clear that “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability, or any other public emergency may be invoked as a justification for torture.” Torture is, in other words, one of those non-derogable rights that are prohibited absolutely under all circumstances. That is one reason why, under international law, torturers are considered hostis humani generis, enemies of all humanity, and why all countries have jurisdiction to prosecute them, regardless of where the torture took place.
Based on this very definition alone, I would like to formally present my position on the issue of using torture for any reason. From my point of view, there is no reason in the world that will justify the use of torture on any person. For starters, based on the definition presented above, there are at least two things that are manifestly wrong with torture.
Firstly, torture consists in part in the intentional infliction of severe physical suffering. Secondly, torture of human beings consists in part in the intentional, substantial curtailment of individual autonomy. Given the moral importance of autonomy, torture is an evil thing – even considered independently of the physically blow that is involved in such an act.
Torture and Murder
When one carefully considers the nature of torture, one will easily arrive at the conclusion that torture is a lot like murder. In fact, in certain cases, torture is worse than murder. As noted by the Stanford Encyclopedia of Philosophy, torturing an innocent person to death is worse than murder, for it involves torture in addition to murder. On the other hand, torture does not necessarily involve killing, let alone murder, and indeed torturers do not necessarily have the power of life and death over their victims. Consider police officers whose superiors turn a blind eye to their illegal use of torture, but who do not, and could not, cover-up the murder of those tortured; the infliction of pain in police cells can be kept secret, but not the existence of dead bodies.
I am of the opinion that torture, just like murder, cannot present any valid justification on why it should be done. On the moral wrongness of torture as compared to killing, the following points can be made.
First, torture is similar to killing in that both interrupt and render impossible the normal conduct of human life, albeit the latter — but not the former — necessarily forever. But equally during the period a person is being tortured (and in some cases thereafter) the person’s world is almost entirely taken up by extreme pain and their asymmetrical power relationship to the torturer, i.e. the torture victim’s powerlessness. Indeed, given the extreme suffering being experienced and the consequent loss of autonomy, the victim would presumably rather be dead than alive during that period. So, as already noted, torture is a very great evil. However, it does not follow from this that being killed is preferable to being tortured. Nor does it follow that torturing someone is morally worse than killing him.
A second point pertains to the powerlessness of the victims of torture. The person being tortured is for the duration of the torturing process physically powerless in relation to the torturer. By “physically powerless” two things are meant: the victim is defenseless, i.e., the victim cannot prevent the torturer from torturing the victim, and the victim is unable to attack, and therefore physically harm, the torturer. Nevertheless, it does not follow from this that the victim is entirely powerless vis-à-vis the torturer. For the victim might be able to strongly influence the torturer’s actions, either by virtue of having at this time the power to harm people other than the torturer, or by virtue of having at some future time the power to defend him/herself against the torturer, and/or attack the torturer.
Is Torture a Necessity?
Still, many have presented the argument of necessity with respect to the use of torture in war time activities, especially if it will involve the gathering of valuable information from the prisoner/terrorist involved. In the January 9th issue of The Economist, it is tempting to argue that torture is justified in rare cases. In America, the most notable exponent of this position is Alan Dershowitz, a leading criminal-defense lawyer, who has argued, in cases of “ticking-bomb” urgency, for “torture warrants”.
In practice, however, attempts to use torture sparingly have quickly led to widespread abuse. The most relevant case is Israel, where the ticking-bomb rationale has been used to justify the “physical coercion” of terrorists during interrogations (Israel has always refused to call it torture). This practice has never been explicitly legalized, but received something close to legal sanction after a commission headed by a former Supreme Court justice recommended in 1987 that “moderate physical pressure” in interrogations should be allowed after psychological pressure had failed. For years after that, the Israeli Supreme Court declined to take torture cases. But the abuse of Palestinian prisoners became so widespread, and so routine, that in 1999 the Supreme Court unanimously ruled that the coercive methods employed by Shin Bet, the security service, were illegal. Nevertheless, according to human-rights groups, the regular torture of Palestinian detainees has continued.
Elsewhere, too, torture that seemed justified in special cases has come to be applied almost indiscriminately. During Algeria’s revolt against France in the 1950s, torture became the primary method of interrogating Algerian prisoners. It was often accompanied by summary executions of prisoners whether they talked or not, according to General Paul Aussaresses, who carried out many of the interrogations and unabashedly described them in a book which caused an outcry in France. Argentina’s junta of 1976-83, facing a real terrorist threat from leftists and claiming to fight in the name of Christianity, routinely used torture which led to the execution of thousands of innocent people.
The Ticking Bomb Scenario
Consider the clichéd example of the terrorist who is refusing to disclose to the torturer the whereabouts of a bomb with a timing device which is about to explode in a crowded market-place. Perhaps the terrorist could negotiate the cessation of torture and immunity for himself, if he talks. Consider also a situation in which both a hostage and his torturer know that it is only a matter of an hour before the police arrive, free the hostage and arrest the torturer; perhaps the hostage is a defense official who is refusing to disclose the whereabouts of important military documents and who is strengthened in his resolve by this knowledge of the limited duration of the pain being inflicted upon him.
Some people argue that the goal of saving innocent lives must override a person’s right not to be tortured. This argument is presented in its starkest form in the “ticking bomb” scenario: a bomb has been set to explode that will kill thousands of people and a detained person is known to have information on where the bomb is and how to defuse it. Is torture justified in such a case to force the detainee to talk? Those who say that it is argue that governments should be permitted to choose torture as the lesser of two evils in such a situation.
The international community, however, rejected the use of torture even in the “ticking bomb” case. International human rights law, as well as U.S. law, does not contain any exceptions to the prohibition against torture.
There are practical as well as moral reasons for not permitting a “ticking bomb” -or terrorist attack — exception to the ban on torture. Although such an exception might appear to be highly limited, experience shows that the exception readily becomes the standard practice.
For example, how imminent must the attack be to trigger the exception and justify torture – an hour, a week, a year? How certain must the government be that the detainee actually has the necessary information? Under the utilitarian logic that the end (saving many innocent lives) justifies the means, torture should be permitted even if the disaster might not occur until some point in the future, and it should be permitted against as many people as is necessary to secure the information that could be used to avert the disaster.
In my opinion, the ticking bomb scenario offers no logical limitations on how much or what kind of torture would be permitted. If the detainee does not talk when shaken or hit, why shouldn’t the government move unto more severe measures, such as the application of electric shocks? Why not threaten to rape the suspect’s wife or to torture his children? Once torture is allowed, setting limits is extraordinarily difficult.
It is important, at this point, to underscore the fact that the practice of torture is banned by one human rights convention after another, beginning with the Universal Declaration of Human Rights and including the International Covenant on Civil and Political Rights (ICCPR).
Torture and the War on Terror
Hence, it can be believed that the war on terror is being used by the many governments, including the United States, to justify the use of torture. After September 11, terrorism is no longer a figment of the politically paranoid imagination. The attacks on the World Trade Center were indisputably terrorist attacks, and al-Qaeda operates as a terrorist organization. Any and every instance of deliberately targeting civilians or civilian infrastructures as a tactic in the furtherance of some cause, whatever the political or ideological motivation and whomever the targeting agents, is “terroristic” – so to speak.
Since September 11, the Bush administration has articulated positions and pursued policies that blatantly contravene the Geneva Conventions, on the grounds that terrorists do not deserve legal rights and protections. These policies include the invention of a category, “unlawful combatants,” that does not exist in international law. These unlawful combatants are being held incommunicado, at Guantánamo Bay and other locations, and subjected to years of interrogation with no judicial oversight, no public accountability and virtually no visitation by representatives of the International Committee of the Red Cross. Although the US government claims that no torture is used in the interrogation of these detainees, these clandestine and extralegal conditions are an invitation for abuse. The Abu Ghraib images are a piece of hard evidence indicating that the US has joined the list of countries—Egypt, Israel, Uzbekistan—that are fighting wars on terrorism partly through the use of torture.
Torture and True Confessions
One other argument I would like to present against the very idea of torture is the fact that confessions made under these horrendous sufferings are reliable. As noted by Jane Mayer in the New Yorker website, most authorities on interrogation, in and out of government, agree that torture and lesser forms of physical coercion succeed in producing confessions. The problem is that these confessions aren’t necessarily true.
She noted that at least three of the Guantánamo detainees released by the U.S. to Great Britain last year, for example, had confessed that they had appeared in a blurry video obtained by American investigators and that documented a group of acolytes meeting with bin Laden in Afghanistan. As reported in the London Observer, British intelligence officials arrived at Guantánamo with evidence that the accused men had been living in England at the time the video was made. The detainees told British authorities that they had been coerced into making false confessions.
In the same article, Mayer added that scientific research on the efficacy of torture and rough interrogation is limited, because of the moral and legal impediments to experimentation. Tom Parker, a former officer for M.I.5, the British intelligence agency, who teaches at Yale, argued that, whether or not forceful interrogations yield accurate information from terrorist suspects, a larger problem is that many detainees “have nothing to tell.” For many years, he said, British authorities subjected members of the Irish Republican Army to forceful interrogations, but, in the end, the government concluded that “detainees aren’t valuable.”
A more effective strategy, Parker said, was “being creative” about human intelligence gathering, such as infiltration and eavesdropping. “The U.S. is doing what the British did in the nineteen-seventies, detaining people and violating their civil liberties,” he said. “It did nothing but exacerbate the situation. Most of those interned went back to terrorism. You’ll end up radicalizing the entire population.”
Much of the argument that goes with the idea that torturing terrorists is a means to the ends lies in the fact that getting vital information will save many lives. But does it really? There are practical as well as moral reasons for not permitting a “ticking bomb” -or terrorist attack — exception to the ban on torture. Although such an exception might appear to be highly limited, experience shows that the exception readily becomes the standard practice. For example, how imminent must the attack be to trigger the exception and justify torture – an hour, a week, a year? How certain must the government be that the detainee actually has the necessary information?
Under the utilitarian logic that the end (saving many innocent lives) justifies the means, torture should be permitted even if the disaster might not occur until some point in the future, and it should be permitted against as many people as is necessary to secure the information that could be used to avert the disaster. Moreover, the ticking bomb scenario offers no logical limitations on how much or what kind of torture would be permitted. If the detainee does not talk when shaken or hit, why shouldn’t the government move unto more severe measures, such as the application of electric shocks? Why not threaten to rape the suspect’s wife or to torture his children? Once torture is allowed, setting limits is extraordinarily difficult.
In fine, my stance on the issue of using torture to gain information, albeit useful, is not justified under ANY circumstances. For one thing, to reject torture is not tantamount to mean forgoing effective interrogations of terrorist suspects. Patient, skillful, professional interrogations obtain critical information without relying on cruelty or inhuman or degrading treatment. Indeed, most seasoned interrogators recognize that torture is not only immoral and illegal, but ineffective and unnecessary as well. Given that people being tortured will say anything to stop the pain, the information yielded from torture is often false or of dubious reliability.
Moreover, to use torture is to violate the most basic of human rights. The prohibition against torture is firmly embedded in customary international law, international treaties signed by the United States, and in U.S. law. As the U.S. Department of State has noted, the “United States has long been a vigorous supporter of the international fight against torture…Every unit of government at every level within the United States is committed, by law as well as by policy, to the protection of the individual’s life, liberty and physical integrity”
For me, that commitment should not be abandoned. Indeed, it must be deepened as the world watches how the U.S. responds to the challenges before it. If the U.S. were to condone torture by government officials or foreign governments in its fight against terrorism, it would betray its own principles, laws, and international treaty obligations. It would irreparably weaken its standing to oppose torture elsewhere in the world. And it would provide a handy excuse to other governments to use torture to pursue their own national security objectives.
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Dershowitz, Alan M., 2003. Why Terrorism Works: Understanding the Threat, Responding to the Challenge, Melbourne: Scribe Publications.
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