Saturday, February 28, 2009

On Torture

Can torture ever be justified?

The Universal Declaration of Human Rights condemns torture in Article 5 – “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment (United Nations, 1948)”. The International Convention on Civil and Political Rights condemns torture in Article 7 – “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment (United Nations, Dec. 1966)” and Article 4 further stipulates that “no derogation may be made (United Nations, Dec. 1966)...” from Article 7. In the Convention against Torture it is explicit in Article 2 (2) that “(n)o 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 of torture. (United Nations, 1984)” The European Convention for the Protection of Human Rights and Fundamental Freedoms condemns torture in Article 3 – “No one shall be subjected to torture or to inhuman or degrading treatment or punishment (Council of Europe, 1987)” And under the first Geneva Convention of 1949 it is stated in Article 3 that “In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely... To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture (United Nations, 1949)...” Yet even though torture is extensively and universally prohibited by the letter of international law indeed in “… all circumstances, even in cases of national emergency, even in cases that threaten the life of a nation and even in cases of warfare against enemies that don’t obey the laws of war (Martinez, 2006)”, many states, including democracies, continue to practice torture. According to Steiner, Alston and Goodman, some torture is aberrational but most is a result of policy or willful ignorance. That is, while states may wish to lay the blame at the feet of ‘a few bad apples’, it is often the case that the torture was instigated or sanctioned by the state. It is often assumed that those that practice torture are sadists. But torture is often applied by people as an interrogational tactic with the mind-set that they are serving their country by performing these abhorrent acts (Steiner, Alston, Goodman, 2007). And in very rare circumstances they might actually be doing so. However, torture is also routinely used to suppress dissent (Steiner, Alston, Goodman, 2007) and the line where protecting national interest loses out to protecting human dignity is not very easily distinguished. According to the current U.S. administration, the paradigm has shifted in regards to how we need to view the world (Bush, 2001). The threat we face is so novel that we can’t be unduly tied to the mindset of the past. But is this really the case? Torture has been prohibited by legislation as far back as the 1400s (Martinez, 2006) in England. While, across the channel in continental Europe torture was routinely employed, often required even, to extract confessions, England held to a lower threshold of evidence due to its common law and jury system. But the King still retained emergency powers of which would allow him to order the torturing of a suspect in a very serious case (in reality at the whim of the king), in essence allowing him to order torture warrants. But by 1640 the Court of Star Chamber, where the king would make these decisions, was abolished (Martinez, 2006). So this illustrates that four hundred years ago, not only had torture already been outlawed for hundreds of years, but in the interest of civil society it was rejected that the executive of the government be able to retain the right to order torture in cases of national emergency.

In 1863 in the United States, President Lincoln oversaw the passage of the Lieber Code which was the precursor to many international conventions such as the Hague Conventions and Geneva Conventions, in which it was insisted that “military necessity does not admit of cruelty--that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions (Martinez, 2006).” This illustrates that 150 years ago in America during the Civil War when that nation’s existence had never been more imperiled and at a time when the executive had no qualms in breaching constitutional directive for the sake of national security, decided that even in this circumstance torture was to still be prohibited. This ought to deflate the argument that rests on the notion that threats to national security are novel and in extreme circumstances it is necessary to utilize torture. Still, it is an argument that gets made, however un-compelling.

Ticking Bomb Scenario

What is more compelling is the argument that deals with a very specific situation. The ticking bomb scenario essentially states that ‘there is a criminal that has planted a bomb that is about to go off; you have this criminal in custody; you know with 100% certainty that he knows where the bomb is and that it will kill innocent people; he refuses to talk; therefore you must torture.’ Bagaric takes this argument even further:

“Torture is permissible where the evidence suggests that this is the only means, due to the immediacy of the situation, to save the life of an innocent person. The reason that torture in such a case is defensible and necessary is because the justification manifests from the closest thing we have to an inviolable right: the right to self-defence, which of course extends to the defence of another. Given the choice between inflicting a relatively small level of harm on a wrongdoer and saving an innocent person, it is verging on moral indecency to prefer the interests of the wrongdoer … The analogy with self-defence is sharpened by considering the hostage-taking scenario, where a wrongdoer takes a hostage and points a gun to the hostage's head, threatening to kill the hostage unless a certain (unreasonable) demand is met. In such a case it is not only permissible, but desirable for police to shoot (and kill) the wrongdoer if they get a 'clear shot".

This is especially true if it is known that the wrongdoer has a history of serious violence, and hence is more likely to carry out the threat.

There is no logical or moral difference between this scenario and one where there is overwhelming evidence that a wrongdoer has kidnapped an innocent person and informs police that the victim will be killed by a co-offender if certain demands are not met.

In the hostage scenario, it is universally accepted that it is permissible to violate the right to life of the aggressor to save an innocent person. How can it be wrong to violate an even less important right (the right to not be tortured or physical integrity) by torturing the aggressor in order to save a life in the second scenario? (Bagaric, 2005)”

It is acceptable to torture according to the ticking bomb argument, because if you do not torture the culprit then you would bear some of the responsibility for the deaths caused by the danger that you could have presumably prevented. On its face it is a very compelling argument. How can you justify not taking action to save lives? Arguments that range from ‘it is morally wrong’, to ‘it will damage the moral fabric of society’, to ‘it will dehumanize the torturer’, to ‘it is illegal’ don’t seem to have as much weight as the possibility of saving another person’s life. In part, it goes to Bagaric’s second argument, that if we are willing to end criminal’s lives in order to save innocent lives, how can it be wrong to impose an arguably less serious intervention such as torture.

The ticking bomb argument prima facie seems pretty straightforward. You have the culprit in custody, there is no question to his/her culpability, there is no humane way to get the necessary information from the culprit, and torture will definitely get the necessary information. In this explicit situation then it would make no sense not to torture – there would be no excuse. However, this type of case is indeed very rare, and to the explicit degree, may never even exist. You have to be certain you have the right person. How can you glean this certainty? A confession seems like the best argument, but even then there are many circumstances that can lead to a false confession. Some types of surveillance may also lend to this end in which case a good lawyer would question the reliability of those techniques or mechanisms as well. So let us agree that you cannot determine with absolute certainty, in any case, that you have the correct person and therefore cannot determine with absolute certainty that a person can deliver the information that you deem necessary. Next, there is no way of knowing what kind of interrogation or appeals to the person are going to work so you cannot rule out every kind of humane interrogation – you have to accept that there is simply not enough time to go through more humane interrogation techniques and move straight into torture. Finally, torture will produce just about any information you want from anybody, factual and fantastic. The fact is that most people would be compelled to say any information they thought their interrogators would want to hear in order to cease torture. So there is no guarantee that you would get reliable information this way. In addition to that, since you already cannot tell with certainty that you have the correct individual in custody, there is no way of telling whether the culprit is resisting confession or simply does not know the information that is being sought. Even in the case where you have the real culprit there is no guarantee that torture would produce anything other than the shame and anguish of the torturer. This deconstruction rests on the ontological argument that nothing empirical can be determined absolutely. But legally, we determine a threshold of certainty and exercise judgement based on that threshold. It would be entirely appropriate to do here, but in doing so we have to accept that we are no longer dealing with the pristine ticking bomb scenario. And once we get outside the theoretical, many problems follow.

Jeremy Bentham addressed some of these concerns three centuries ago. He wrote that torture is something where pain is afflicted in order to incite action and is ceased upon the completion of the desired action. However, punishment is the infliction of pain for its own sake after the fact of an action and that “Torture considered in itself is in this point of view less liable to exception than punishment is (Steiner, Alston, Goodman, 2007)”. He writes that there are two cases for torture. “The first is where the thing which a Man is required to do being a thing which the public has an interest in his doing, is a thing which for a certainty in his power to do (Steiner, Alston, Goodman, 2007)”. The second case is “...where a Man is required what probably though not certainly it is in his power to do; and for the not doing of which it is possible that he may suffer, although he be innocent; but which the public has so great an interest in his doing that the danger of what may ensue from his not doing it is a greater danger than even that of an innocent person’s suffering the greatest degree of pain (Steiner, Alston, Goodman, 2007).” Bentham lays out rules for each of these cases. For the first case: there has to be proof of the person’s power to perform the action; the proof has to be as strong as it would be to subject him to the worst punishment under law; the threat has to be imminent (“admit of no delay (Steiner, Alston, Goodman, 2007)”; if the threat is not imminent then less severe methods need to be used; even in cases where the threat is immediate, the threat must warrant the worst punishment under law. The rules for the second case are: there has to be an imminent threat; it should not be used unless the safety of the whole state is at risk; the power to torture can only be granted to persons best qualified to judge its necessity, and they are to be accountable for their judgment; and there must be “…as many and as efficacious checks… (Steiner, Alston, Goodman, 2007)” as possible without deterring the efficacy of the coercion. Bentham says defining torture this way is works because it should be used rarely, if ever. He also points out that judges determine death sentences or life sentences both of which are arguably worse in the opinion of the condemned. And he ends with this marvelous line, “There is no approving it (torture) in the lump, without militating against reason and humanity: nor condemning it without falling into absurdities and contradictions”.

So, as has already been argued there can never be an absolute certainty as one alluded to in Bentham’s first case. However there can be a legal certainty which could be decided by a judge or other official with relevant qualifications. The second case gets into even more uncomfortable territory by leaving open ended the question of how it is supposed to be determined that the “...danger of what may ensue from his not doing it (torturing) is a greater danger than even that of an innocent person’s suffering the greatest degree of pain (Steiner, Alston, Goodman, 2007).” How many innocent people is it justifiable to torture in order to avert a car-bombing, an assassination or even a nuclear attack? Is it still justifiable to torture, knowing that it may yield no results? Is it justifiable to torture even one innocent person? As you can see this ticking bomb scenario is nowhere nearly as clear cut as the a priori argument would seem. And are we going to grant the right to judges to decide who to torture? Alan Dershowitz talks about the concept of torture warrants. In his scheme, if there was an extreme case, law enforcement officials could go before a judge with pertinent evidence and if it was compelling enough the judge would grant a warrant to torture. Dershowitz argues similar to those that advocate legalizing drugs, that it is better to bring this frowned-upon but persistent practice into the legal fold to be better able to regulate it. Yet as far back as the 1600s we saw civilized society reject the notion of granting such awesome powers even to their own king. Bentham’s ideas are very interesting and indeed prescient to the arguments of today. But I am not of the mind to trust government to be able to make the kinds of decisions that Bentham was advocating. Jean Bethke Elshtain said that even when dealing with extreme cases we shouldn’t codify the use of torture in order to prevent its normalization. The codifying and normalizing of torture will no doubt lead to abuses of power, and will lead to the justification of torture by other nations whose motives we do not view as pure as our own (Martinez, 2006).

Sanford Levinson argued that torture should have to be proven justified to a jury. This would move the responsibility away from a government official which is an attractive option. But in the extreme cases where torture may be thought necessary, how would there be enough time to properly assemble a jury and present it with sufficient evidence, as well as providing for a defense?

Enhanced Interrogation through Torture

According to the Convention against Torture, torture is strictly prohibited. However, parties are only required to “undertake to prevent cruel, inhuman or degrading treatment or punishment (United Nations, 1984)”. John Parry argues that this wording grants some leeway to those that would push the boundaries of acceptable forms of punishment. This gets to the argument that torture is not something strictly of a kind but of degrees. Some nations such as the U.K., Israel and the U.S. have attempted to justify actions that would otherwise be known as torture this way.

In the case of Ireland v. U.K. in front of the European Court of Human Rights, Ireland accused the U.K. of employing five tactics that they argued amounted to torture against suspected member of the I.R.A. The tactics were; stress positions, hooding, noise subjection, sleep deprivation and starvation (Steiner, Alston, Goodman, 2007). The court ultimately ruled that they amounted to cruel and inhuman treatment but weren’t so severe as to constitute torture. This is the loophole that Parry cited. The court also noted that it was not done with the intention of torture. And even though the court conceded that there was to be international supervision over derogations of right, it judged that “…national authorities are … in a better position than the international judge to decide … on the nature and scope of derogations necessary to avert (a national security threat) (Lillich et al, 2006)”. This decision was a harrowing precursor to future justification of ‘enhanced interrogation techniques’.

The Public Committee against Torture in Israel brought a case against the Government of Israel that was heard before the Israeli Supreme Court where the Court ruled on Israeli tactics that were argued amounted to torture. The tactics the Israelis employed were shaking suspected terrorists, and subjecting them to the “shabach position (Steiner, Alston, Goodman, 2007)” which was a form of stress positioning in addition to hooding and noise subjection, sleep deprivation, and other physical violence or punishment. The government argued that the acts were excused because of the ‘necessity defence’ – that the acts were necessary for Israeli security. But the court dismissed that notion because the defence was meant to be applied ‘ad hoc’ in extreme cases, and not predeterminately used in administrative policy. All of the coercive tactics were prohibited (Steiner, Alston, Goodman, 2007).

In 2002 the Bybee memo was circulated in Washington D.C. which redefined torture for the Bush administration. In this memo, torture was redefined to include acts causing physical pain so severe as to cause “death, organ failure or impairment of bodily functions.” Also, the mental suffering component was stretched out to only include permanent or long term emotional damage such as a mental disorder like post-traumatic stress disorder. Plus, this outcome had to be the interrogators intent (thanks, European Court of Human Rights). The justification for this new definition was the fact that the CAT arguably left room for exception for cruel and inhuman treatment. In 2004 The Bybee memo was stricken as policy and in 2006 the Military Commission Act was passed that had much more encompassing definitions of torture and cruel and inhuman treatment, however still allowed for the admission of evidence obtained through coercion (Steiner, Alston, Goodman, 2007).
The Convention Against Torture defines torture as “... any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions (United Nations, 1984).” This definition of torture seems pretty explicit and only disingenuous lawyering would lead to the definitions put forward by the U.K., U.S. and Israel. Even though in kind, all of these actions do amount to torture, that doesn’t mean that there are not ‘degrees’ of torture. In viewing torture this way these nations’ ‘enhanced interrogations’ should be seen as a lesser degree of torture than what may come into mind as a popular definition of torture such as thumb-screwing, teeth-pulling or mutilation. This is only an important point to consider if we do find any circumstance which torture would be morally permissible because at that point we may decide that it is only permissible to a lesser degree.
Oren Gross argues that there should be an official ban on torture but that there should be some kind of “official disobedience” in extreme cases such as the ticking bomb scenario. It is necessary to absolutely ban torture in society in order to prevent its normalization and legitimization. Torture cannot be employed wholesale as in the case of the United States in its so called War on Terror. In this instance the United States is pushing the ticking bomb argument much further than can be done reasonably. As has already been discussed, even the purest form of the ticking bomb argument cannot hold up under intense scrutiny and any form of the ticking bomb argument that departs from this original form moves further away from validity. The U.S. has said that while they reserve the right to torture in actual ticking bomb scenarios, they also find it necessary to do so in a number of related scenarios that are not as cut and dry. Maybe it is not one ticking bomb that’s hidden right now, about to blow up, but maybe it is fifty, or a thousand bombs that are in the process of being built for future dissemination. It does not take much to go even further from here on this slippery slope. Maybe it is not the existence of bombs that is the threat, but the propagation of information on how to build bombs. Maybe it is not the propagation of information on how to actually build bombs that is the threat, but maybe it is the propagation of information that might make someone consider wanting to blow up a bomb. Maybe it is not even information about bombs that is the threat but it is fact-based criticism of government actions. And the certainty claim has gone done the same slope. Maybe they are not certain this guy is a terrorist but he probably is one. Maybe it is not probable that he/she is a terrorist but it is possible that this person is a terrorist. Maybe this person was just someone that someone else had a grudge against and turned him into the authorities for a cash reward. How long is it until the administration declares that ‘they all ought to be rounded up just in case?’ These are exactly the conditions that lead to totalitarianism and genocide. I am not accusing the U.S. of either but as you can see they are only steps away. And it has all been done ostensibly with good intentions. We have no reason to believe that Donald Rumsfeld and company are sadists and enjoy torture for its own sake. We have to believe that they truly had their love of country at heart when authorizing these atrocities.

This is why torture cannot be authorized by law. Because it is not sadists that we have to worry about the most (though we do have to worry about them as well), it is those that think they are serving the interests of their country over the interests of humanity. Once we start to put ‘country first’ then there is no boundary to the atrocities that can be committed against ‘foreigners’. Yet we do put ‘country first’. Just as I put my family first before other families. There has to be strict limitations to this notion however. And with strict limitations comes exceptional circumstances. For instance, I am not going to kill anyone to gather resources for my family. I have other avenues. But if my family was on a desert island and my daughter was starving, I may be prepared to do some otherwise unthinkable acts. At the same time I have to face the reality that I am not, have never been, and in all likelihood will never be on a desert island in that exact circumstance, so dwelling on that circumstance is unhelpful - as is dwelling on the ticking bomb scenario. Surely, there is a weighty argument for the justification of torture in a very rare circumstance that almost never happens. That should not be the focus of the debate. The fact remains that torture is one of the most universally reviled human acts and everything possible should be done to minimize its occurrences. In extreme cases torture can be justified. I believe that, as in one of the ideas Bobbitt pointed to, if there is a case resembling a real-life ticking bomb scenario, and the interrogator feels that there is no other option but torture – he/she is certain that this person can halt the murder of an innocent person or of many innocent people, but chooses not to, and will not break under interrogation, and the mortal danger is imminent, then I think that interrogator is morally justified to torture that individual. I do not believe that that person should be legally justified in doing so. In this case as in the Bobbitt case I believe that the interrogator should be held accountable after the fact by a jury of peers (Bobbitt, 2008). Perhaps they will find the interrogator’s actions justifiable also. This will ensure that the consideration of undertaking to torture is never taken lightly and that abuses of authority to commit torture will be punished. Arguments can be made that instead of justification after the fact, it would be more prudent to issue torture warrants as discussed earlier. The key differences between the two methods of justification are that torture warrants place the authority in someone removed from the situation, it removes accountability from the perpetrator of torture and it legitimizes, in some form, the torturing of individuals under law. And we should also note the argument that allowing torture in this circumstance could lead to recognition jus cogens. Although I disagree with this argument, because the strict scenario that torture would be forgiven in would not occur enough for it to become customary in my opinion , does not mean that will certainly be the case. So, can torture ever be justified? Yes. Torture can be justified morally, but never legally.

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