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[i]. 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[ii].
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[iii]. Throughout 2002 and 2003 the findings of assistant attorney general Jay Bybee[iv] were used to justify the use of forceful interrogation against prisoners captured by US forces in Afghanistan and Iraq[v].
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[ix] 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[x]. They contend that the difference between physical coercion, of the type used at Guantanamo Bay, and torture is largely semantic[xi]. 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”[xii]. 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[xiii]. 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[xiv]; 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[xv], 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.
[i] Ashcroft, J in Huang and DiBiase (eds), 2010, pp170-174
[ii] Yoo, J in Huang and DiBiase (eds), 2010, pp74-75
[iii] Posner, M in Cole (ed), 2011, pp104-106
[iv] Yoo, J in Huang and DiBiase (eds), 2010, pp82-83. Endnotes 1, 3 and 7 are the most relevant to this discussion.
[v] Soufan, A in Cole (ed), 2011, pp89-91
[vii] “FBI files detail Guantanamo torture tactics”. The Guardian, 03 January 2007. http://www.guardian.co.uk/world/2007/jan/03/guantanamo.usa
[viii] Krauthammer, C in Cole (ed), 2011, pp71-73
[ix] “Iraq: Interrogations and torture”. Council on Foreign Relations, 17 May 2004. http://www.cfr.org/iraq/iraq-interrogation-torture/p7669. “[The Red Cross reported] that ill-treatment during interrogation was systematic “in regard to persons arrested in connection with suspected security offences or deemed to have an ‘intelligence’ value”.
[x] Posner, M in Cole (ed), 2011, p105
[xi] Posner, M in Cole (ed), 2011, pp106-107
[xii] Posner, M in Cole (ed), 2011, p106
[xiii] Soufa, A in Cole (ed), 2011, p88
[xiv] “Waterboarding is torture”. Hitchens, C. National Post, 19 September 2011. http://fullcomment.nationalpost.com/2011/09/19/christopher-hitchens-theres-no-doubt-in-my-mind-waterboarding-is-torture/
[xv] Soufa, A in Cole (ed), 2011, p88
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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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