Torture involves the
use of intimidation, humiliation, discomfort and pain to extract information
and confessions from prisoners and suspects held by the state. Debates on
torture usually focus on its use by state actors – groups or individuals who
have been given the right to use force and authority to achieve objectives
decided on by a government. Torture used in other circumstances is simply
criminal, something that it is the responsibility of governments to prevent,
detect and punish. Amendments to the US constitution and to the
intergovernmental and supranational agreements that define basic rights in
other liberal democratic states prohibit the use of torture by state agents. It
is seen as being a political taboo even more significant than state sanctioned
killings. Not only is the objective of torture to discover information, rather
than protect the security and liberty of others, torture also requires a state
to actively harm and intentionally degrade the quality of life of a human
being.
Following the 9/11
attacks many members of the US presidential administration began to discuss a
“new normalcy”, in which the threat of a similar terrorist attack was constant
and universal. When an ideology comes under attack, the ability of protective
bodies such as the police to anticipate and guard against aggressive actions is
compromised. By September 12 2001, it was understood the world over that every
citizen and every institution of every liberal state had been marked out as a
potential target. A force that was once seen as threatening only the most
significant symbols of liberal democracy was now directed at schools, business
and train station – the smallest, most prosaic and ordinary landmarks of
everyday life. Those responsible for the attacks had used the legal limitations
placed on the US government’s ability to monitor citizens’ day-to-day lives for
evidence of suspicious activity to keep preparations for the massacre secret.
Under these
circumstances, the legal safeguards intended to prevent the American executive from
violating basic liberal standards of conduct- such as the longstanding
prohibition on torture- were heavily criticised. As the academic and politician
Michael Posner describes it, the Bush administration claimed that “existing
laws were impediments to fighting a new kind of enemy”.
The federal government
felt obliged to seek out more effective and more rapid methods of intelligence
gathering. The uses and applications of torture quickly became a topic of
private discussions both within the Whitehouse and between senior intelligence
officials.
Alberto Gonzales, The
White House’s general Counsel was instructed to obtain a legal justification
for the use of coercive interrogation against terrorist suspects in 2002.
Orders subsequently issued by Gonzales’ office to the Department of Justice
required that the US governments’ lawyers make a distinction between torture
and “coercive interrogation techniques” that members of the intelligence
community wished to use against captured terrorist suspects. Throughout 2002
and 2003 the findings of assistant attorney general Jay Bybee were used to
justify the use of forceful interrogation against prisoners captured by US
forces in Afghanistan and Iraq.
Among techniques
cleared for use by interrogators were intimidation by guard dogs; enforced
nudity; sleep deprivation; temperature manipulation; beatings and simulated
drowning.
Independently of the
nuanced legal arguments made in support of these methods, other commentators
have noted that the threat posed by terrorism may give rise to emergency
situations where forceful interrogations, as severe as torture, may save lives.
Situations of this type are called “ticking time bomb scenarios”. A captured
terrorist may have information on the location and target of a timed explosive,
or the destination and identity of a suicide bomber. The police or security
services may not have enough time to outwit or verbally coerce the terror
suspect into giving up the target of the atrocity that he has arranged. If they
follow established rules and avoid causing pain to the terrorist, he may refuse
to surrender the necessary information, and a fatal explosion will occur,
injuring hundreds of people. Indeed, the atrocity that takes place may be as
significant as 9/11. In order to save the lives’ of the terrorist’s intended
targets, it may be necessary to overcome the terrorist’s ability to resist
psychological coercion by using physical coercion[viii]. Hearings by Senate
oversight committees in the US have confirmed that these techniques were used
against inmates of Guantanamo Bay, a prison used to hold terror suspects
captured in Afghanistan and Iraq by the American military.
Objections to this
sort of reasoning had been based on the assumed impossibility of scenarios of
this type arising in the real world. Although, as the Stanford encyclopaedia of
philosophy points out, the wrong wrought by torture could be balanced against
the possible benefits of saving thousands of lives, an event of this type was
highly unlikely. In light of the nature and circumstances of the 9/11 attacks,
however, this rationalist-realist principle was significantly weakened. The use
of civilian airliners as flying suicide bombs seems to be exactly the sort of
scenario that might justify the use of pain and coercion in the interests of
saving lives.
Reasoning of this type
might justify the use of torture in an extraordinary situation, but the
anti-terror operations mounted by the US since 9/11 have yet to detect or
prevent such an exceptional event. Moreover, as the instructions to the White
House’s legal team made clear, George Bush and Donald Rumsfeld were not
attempting to excuse or explain the use of torture to avoid unusual and
atrocious events. The Bush White House wanted physical coercion to become a
routine during the interrogation of terrorist suspects.
Those who supported
this approach noted that the leaders of terrorist cells and organisations might
have information about attacks that were months or years away from being
carried out, but still posed a significant threat to thousands of civilians. It
was argued that, at the very least, use of physical pain to secure information
should be used against this class of terrorist. Individuals such as Khalid
Sheikh Mohammed, Ramzi bin al-Shibh could possess information about a large
number of planned attacks, due to be carried out in a wide range of locations.
Moreover, they might also have knowledge of the mechanisms that other
terrorists used to acquire funds and evade detection and capture. Donald Rumsfeld
and Vice President Dick Cheyney speculated openly that it might be considered
immoral or negligent for a state not to torture the commanders of terrorist
organisations, in order to uphold the safety of the millions of citizens that
they were charged with protecting. The use of coercive techniques that were
clearly defined and approved by experts in international law was seen as being
necessary safeguard against the possibility that interrogators or military
personnel might use force arbitrarily or excessively.
Opponents of the use
of physical coercion have repeatedly questioned the validity of the definition
of torture produced by Bybee, Gonzales and Bybee’s superior John Yoo. They
contend that the difference between physical coercion, of the type used at
Guantanamo Bay, and torture is largely semantic. In the signing statement that
he appended to a 2005 Act of congress prohibiting cruel or degrading treatment
of anyone held in the custody of the US authorities, George Bush stated that
the US would comply with the law only in so far as it did not “compromise
national security”. In his statement to the Senate subcommittee on
Administrative Oversight and the Court, former FBI interrogator Ali Soufan
disclosed that the CIA, advised by a number of private sector security
organisations, was the primary advocate for the use of torture against terror
suspects. Soufan also stated that the CIA had relatively little experience of
direct interrogation, having operated primarily in foreign jurisdictions and
under strict secrecy.
It is argued that
torture is more likely to produce false or unreliable information than verbal
interrogation. An individual undergoing will always attempt to reduce or end
the pain that he is being subjected to. This objective will guide his behaviour.
Even if a subject possesses no useful knowledge, he is likely to lie to his
captors in order to bring an end to the pain that he is being subjected to. Due
to the powerlessness of torture victims, and their intimate relationship with
their torturers, they may disclose fabricated information that they believe
their torturer wants to hear, rather than useful factual information. In short,
pain undermines an individual’s ability to reason and think rationally;
combining interrogation with torture means that captives are less likely to
disclose useful or true information.
Torture- whatever the
legal terminology used to cloak it- still has the capacity to provoke moral
disgust. Following the publication of the Bybee “torture memo”, and the
expansion of the CIA’s coercive interrogation program, a number of senior
intelligence personnel have resigned from their organisations or requested that
they be assigned to alternative duties. Many of these individuals believed that
participating in torture would breach the ethical standards that they had been
trained to uphold. Many others believed that torturing captive would undermine
their ability to conduct verbal interrogations, and to build relationships with
informants and with foreign intelligence agencies. The expertise and knowledge
possessed by these individuals could have been just as useful to those trying
to prevent future terror attacks as the knowledge gained from captured al Qaeda
leaders.
The training that
dedicated terrorists undergo is designed to prepare them for operations in
dictatorships and emerging democracies. Indeed, the majority of terrorist
attacks prior to and since 9/11 have occurred in states that cannot be defined
as liberal democracies – places such as Pakistan, Afghanistan, Iraq, the states
of Central Asia and Israel. Use of torture and physical violence against
prisoners is common in these locations, and informers have indicated that
terror organisations did their utmost to ensure that captured operatives would
not respond to such treatment. Captured terrorists have been educated to expect
torture and ill treatment and are more likely to adopt a defiant and
uncooperative attitude if their expectations are fulfilled.
Finally, it should also be observed that all attempts to institutionalise
torture- even by the Bush administration- have produced interrogation programs
that take a long time to deliver meaningful information. Pain can only be used
to extract information from an individual if it is applied repeatedly and for
prolonged periods. The depth of the relationship that must be constructed
between a torturer and his victim, and the extensive training received by many
terrorists, means that torture would not offer the rapid disclosure of
information that the “ticking time bomb” scenario depends on.
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In the event of an imminent attack it is only
reasonable to use force to find information. If authorities have good reason to believe that there
is a realistic threat of a nuclear explosion in downtown Manhattan or Tel
Aviv then it is vital that as much information as possible can be gathered as
quickly as possible.
If that requires pain to be inflicted on an individual
to save the lives of millions then it is simply practical to do so. The harm
represented by the pain caused to a single individual is outweighed by the
possibility that information gathered from a forceful interrogation might
save thousands of lives.
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What about a biological bomb in a small town killing a
few thousand. Or a lunatic with an M16 in a village killing fifty? Or
preventing a single murder or rape? Anyone attempting to support the
resolution must give a clear explanation of the point at which torture can be
justified. How many individuals must information acquired through torture be
able to save before the state is permitted to use pain and coercion against
criminal and terrorist suspects in its custody?
If it is right to use torture in an attempt to prevent
the death of a single individual, when that individual is a member of a
crowd, then why should the use of torture to protect the life of a single
individual be considered unjustifiable? It makes no difference to the
individual or to their family. Torture must either be treated as being
unacceptable in all circumstances, or its use in all circumstances must be
permitted.
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Terrorist organisations such as Al Qaida do not respect
the rights of individuals and the only way to fight fire is with fire. Terrorist networks use fear, pain and suffering as
their stock in trade. By definition, terror organisations are not bound by
legal due process or rights of appeal and review. Instead they deal out death
to innocent members of society who have no power to alter the events and
policies that motivate terrorists atrocities.
By contrast, the first role of governments is to
protect their citizens’ safety and they should use all tools possible to
ensure that innocents are not threatened with random death and destruction.
In the light of these two realities, it is appropriate
for governments to take extreme measure, such as torture, to protect their
citizens.
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When battling those who would seek to replace the rule
of law and democratic governance with religious decree, it is more important
than ever to demonstrate that the principles of a civilised society are
paramount.
In the light of that reality, for the state to use the
very tools of fear and violence that they are fighting against sends out the
wrong message. It means, in effect, that nations have put themselves on the
same moral level as the terrorist organisations they are fighting.
Instead it is important to demonstrate that actions
undertaken quite legally are an effective bulwark against terror. Moreover,
it is necessary to demonstrate that these values are part of a system of rule
of law; that values of justice, fairness and accountability are seen as
valuable both by a states’ leaders, but also by arbiters (judges) and its
people.
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Time is of the essence in a crisis. When confronted with extremists who see a virtue in
their own death, extraordinary methods may be required. The use of force and
fear in enhanced interrogation gives quick results. In the event of a bomb
hidden somewhere in Manhattan, it’s vital to have information quickly.
Nobody, even the most diehard proponents of enhanced interrogation, would
suggest that it is pleasant or should be used on a routine basis; the point
is that techniques such as waterboarding are effective and fast.
Responding to terrorist threats is something that needs
to be dealt with in minutes or hours. Unfortunately, it is in the nature of
due process and legal procedure that they trials and questioning take place
in a framework of days or weeks.
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The primary difficulty with the use of torture is not
one of principle but one of practice – it doesn’t work. You simply have no
way of checking whether the information is accurate. By using force or the
threat of force, suspects are under pressure to say something- anything- that
will stop the pain they are experiencing. However, information acquired this
way will not necessarily be true.
In the light of this, the use of torture actually slows
things down the process of investigating and preventing terrorist threats.
This is particularly true of terror suspects for whom death has no fear and
for whom it may, in fact be a goal. A much safer approach to rooting out
terrorist who seek to martyr themselves is old fashioned, and perfectly
legal, investigation.
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It is perfectly possible to put legal structures in
place that allow for judicial overview of the interrogation techniques used.
In most Western countries – the most common targets of modern terrorism –
there are already legal frameworks for judicial approval of the extension of
detention periods and so forth on an emergency basis. The same form of
oversight could be used here and exactly the same principle of retrospective
appeal could apply to ensure that the capacity was not misused.
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Allowing torture under any circumstances will allow the
prospect of its routine use. The advantage of a
complete ban on torture is that it leaves no room for doubt, no possibility
for confusion, no need to apply personal judgement. Under the status quo, it
is simply illegal to use force or the threat of force to solicit information
from a suspect, regardless of the charge.
The moment that becomes something other than a complete
ban then it puts an intolerable pressure on security officials to decide when
it is justified and when it is not.
The experience of Abu Grahib demonstrates how the use
of abusive treatment can become routine, even trivial, all too quickly. If it
is acceptable to use torture to prevent mass-murder, then why not murder? If
for murder than why not rape? And so on.
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The era of battlefield warfare has passed. The war on
terror may be a new form of combat, but the results are no less serious. Were
a terrorist flying a military bomber aircraft to deliver a payload of death
and destruction on one of the world’s major cities, nobody would think twice
about shooting it down, killing the crew and preventing the bombing.
There is no meaningful way in which the example above
is morally different from leaving a bomb in a station or on a subway train.
Societies have the right to defend themselves by all means necessary. The
combatants involved in this process consider themselves to be at war and
revel in the fatalities they cause. It is only sensible for states to treat
these individuals as though that war were a reality in the more traditional
meaning of the word.
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Introducing the use of violence into the justice system
means that liberties that have taken centuries to secure are lost.
The principle that all people are presumed innocent
and, as a result, should not be abused either physically or mentally by
officers of the state is one that took centuries- not to mention a great deal
of blood and sweat- to establish. In the words of British Chief Justice
Phillips this respect for human rights is, in and of itself, “a vital part in
the fight against terror”, as if terrorism is to be defeated states that
ascribe to such principles must show that they remain true to them in order
to win the ideological battle.
Using torture on suspected terrorist would be to tear
apart that basic principle in response to crimes, which, it has been noted,
are on nothing like the scale of the industrialised warfare of the twentieth
century, would be a massively damaging step. Regardless of the scale of the
crime the individual must have protections against false accusation and
punishment, this means that a fair trial is necessary in order to determine
innocence or guilt.
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No amount of legal niceties would bring any comfort to
the families of those slaughtered in terrorist atrocities around the world.
When you are fighting an enemy that has no time for the European Convention
on Human Rights, the US Bill of Rights, English common law or the Geneva
Convention it is simply impractical to apply those standards.
The basic principle of terrorism is to cause as much
fear, panic and destruction as possible. Terrorists do not have a set goal in
mind, they are not functioning as rational individuals, and affording them
the luxury of treating them as such ignores what they are likely to do.
The great wars of the twentieth century were fought
within the confines of post-Enlightenment thought, however extreme that may
have become. The wars of the 21st seem set to be Mediaeval in nature, with
the promise of paradise rather than provinces as the reward for martyrdom.
The defense of the values of liberty and democracy must reflect that new and
chilling reality.
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If legal principles are abandoned then there is little
point in defending the liberties that democratic governments say they are so
keen to defend. If we accept that
this is a war, then its focus is not so much political control of territory
as the preservation of a way of life. It is ridiculous to fight to defend
principles of equality and decency using the tool of abandoning them the
moment they become inconvenient.
The forces of religious extremism wish to undo 1,400
years of democratic development. We should not assist them in that process by
allowing the major powers of the West throw out the most basic principles of
the rule of law. Such a move, ultimately, has the potential to be vastly more
destructive than the actions of a few fanatics
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