The Legal and Ethical Considerations of Torture

The torture debate: Examining the legal and ethical considerations in the use of torture as an interrogation technique.

American human rights abuses committed post September 11th have sparked a continuous debate about the use of torture in the fight against terrorism. While torture has historically been illegal in the U.S., the threat of terrorism coupled with the escalation of violence in Iraq has led to executive and judicial justification for the use of cruel and inhumane treatment. Investigations into the handling of prisoners at Guantanamo and Abu Ghraib have caused both Americans and observers abroad to ask how a country that once promoted human rights could have allowed such abuses to occur and, having done so, whether the U.S. retains any moral authority in the international community. In February 2008, the Justice Department decided to review the legality of previous memoranda the sanctioned the CIA agents use of water boarding and other torture techniques, when interrogating suspected members of terrorist organizations. This paper will examine the legal and ethical issues surrounding the use of torture in the aftermath of September 11th.

Introduction:

I. Americas current effort against terrorism highlights an enduring legal and ethical dilemma surrounding the use of torture. The need to contain the terrorist threat has led the U.S. and others to indefinitely detain suspected terrorists in prisons at Guantanamo Bay, Cuba, and elsewhere around the world. During their detention, many prisoners have complained of torture at American hands, inciting an emotional domestic debate about whether or not American, or any other nation, should torture or even needs to torture to win an asymmetric war. This situation reflects a classic moral dilemma over the use of torture, which many people find reprehensible, but others argue the decision not to torture may endanger many more lives because terrorist plots to kill will go undiscovered. (Greenberg 2006 pp. 2-3)

II. Definitions of torture – International Law and Conventions

A. There have been many published definitions of torture before and since its emergence at the forefront of the public conscience after the events of September 11th. “Torture” is a crime under international law and the laws of most countries. International law allows no justification, no emergency situation that would justify its use. After the approval of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention) by the U.S. Senate, and in light of decades on constitutional interpretation, the same would appear to be true for the U.S. Some of the foundational international law documents on torture are the Geneva Conventions, the International Covenant on Civil and Political Rights, and the United Nations Convention Against Torture (1994). The Geneva Conventions provide broad protections:

Any person detained, whether a prisoner of war, unprivileged belligerent, terrorist of non-combatant, has at least minimum guarantees “in all circumstances” “at any time and in any place what so ever” under common Article 3. Such rights include the right to be “treated humanely,” freedom from “cruel treatment and torture,” and freedom from “outrages upon personal dignity, in particular, humiliating and degrading treatment,” and minimize human rights to due process in case of trial. (Geneva Convention 1994)

B. Another meaning of torture is outlined by the description given by the U.S. Senate when it ratified the United Nations Convention Against Torture in 1994. The senate defined torture as follows in U.S. Code 18 Section 2340:

1. The United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting the intentional infliction or threatened infliction of severe physical pain or suffering;

2. The administration or application, or threatened administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

3. The threat of imminent death; or

4. The threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances.

In reviewing the various Conventions and International laws one might believe that torture is banned absolutely, but this perception is false. For example, the Geneva Conventions do not cover all the forms of armed or military action. They deal primarily with armed conflicts between and among nations that became parties to the Conventions and with the occupation of a state party’s territory by the forces of another nation. Thus, Al Qaeda does not in any respect resemble a state, and therefore not a subject of international law. Many people contend that the September 11th attacks have not driven any rich democracy to reverse itself and make torture legal, but they have encouraged a bending of the definitions and the turning of blind eyes.

III. Torture Memos

A. Since September 11, 2001, the argument over what constitutes torture has flared. In August 2002, in response to the Central Intelligence Agency’s (CIA) request for clarification on permissible interrogation techniques, Assistant Attorney General Jay S. Bybee provided an inflammatory memo to the President’s office of legal counsel which alarmed the public. It stated that only physical pain “equivalent to that accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death,” or mental pain that resulted in “significant psychological harm of constituted torture.” Also, the memo argued that as a wartime President whose main duty was to protect the American people, he had the power to override both domestic and international law. The public viewed the memo as a self-serving attempt by the Bush administration to narrow the definition of torture in order to allow interrogators some ominous flexibility during interrogations and relieve them of the constraints of the Geneva conventions (Greenberg 2006).

B. Memo Rescinded

In December 2004, Acting Assistant Attorney General Daniel Levin released a reconsideration of the issue which rescinded the 2002 memo in its entirety and publicly reaffirmed America’s subscription to a complete torture ban as stated in the U.N. Convention Against Torture. The 2004 memo clearly stated the U.S. deemed torture “abhorrent both to American law and values and international norms” (Smith and Eggen, 2004). Moreover, many guiding sources contain restrictions outlawing poor treatment in general, for example, in addition to defining torture, the U.N. Convention Against Torture also forbids engaging in “cruel, inhuman, or degrading treatment” (Heymann and Kaygen 2004). Although the U.S. constitution outlaws cruel and unusual punishment, it is generally accepted judicially that this implies a broad moral standard which prohibits unusually cruel treatment.

President Bush and his colleagues have always maintained that America neither authorizes nor condones torture. But the President has always been vague about the grey area between torture and more moderate pressure. Soon after suspected terrorists were first sent to Guantanamo in January 2002 he said that America’s armed forces would treat the detainees “humanly” in a manner consistent with the Geneva Conventions, but only to the extent appropriate and consistent with military necessity. It was not until the Supreme Court’s ruling in Hamdan v. Rumsfeld (2006) did his administration accept that all detainees, wherever held, were protected by Common Article 3 of the Geneva Conventions, which bans all forms of cruel, inhuman or degrading treatment as well as torture.

IV. Ethical Considerations

A. Torture

The morality of torture is similar to the morality of capital punishment in the following respects: they are in principle, and probably in practice, certain rare instances in which either would be morally justified. At the same time, morality itself demands that both be categorically banned in law. Torture can be morally framed as a means-versus-ends conflict. Here we ask ourselves is some information so vital, so valuable, that we should consider torture even if it is morally reprehensible. There are those who believe that coercive interrogation is supported as an essential tool under conditions of imminent threat of large scale violence against Americans. But this argument assumes that torture will get the information we want if we could just get around our discomfort of deliberately inflicting pain or suffering on a suspect. In this discussion, torture is scaled against two criteria: human rights and effectiveness.

1. Morality

The question of moral acceptability does not provide easy answers. Those who take a utilitarian approach can justify the use of torture in the face of immediate threat. The notorious hypothetical “ticking time bomb” situation is taken as illustrative of a catastrophic circumstance that may justify torture. Here the person under interrogation knows the location of the bomb set to explode endangering thousands of lives and refuses to divulge the information necessary to remove or defuse the bomb. Many commentators acknowledge that the ticking time bomb scenario is improbable and artificial but believe that it needs addressing because since September 11th leaders have used this situation as a narrative framework and as justification for modifying prohibitions on international law regarding torture as well as a justification for curbing civil liberties more generally (Parry 2004).

From the “means” perspective of ethical formalism, torture is unacceptable. The easy willingness to torture in the pursuit of information is inconsistent with all doctrines of human rights. The U.N. Convention Against Torture rejects torture under any circumstances. The use of torture has implications for one’s perceived moral identity. When we use torture, it tells us as much about ourselves as about the people we use it against. At the core of the issue things become confused because the “good guys” are carrying out the same acts that make the “bad guys” bad. Torture can mobilize our enemies, justifying their violent resistance to the evil of an enemy who uses torture. In the example of interrogation carried out at Abu Ghraib, incidents of torture have provided a justification for violence against the U.S. The policy implication of this is that interrogations should be carefully documented in order to disprove torture accusations. It is crucial that the U.S. does not create an environment that encourages mistreatment in the name of the ends justifying the means, when gathering intelligence about the enemy.

2. Effectiveness

The effectiveness of torture argument is based on the straightforward logic that individuals, fearing for their personal welfare, will provide whatever information they can in order to avoid harm. But in practice this notion is difficult to sustain for a number of reasons. One of the first questions to address is whether torture is an effective means of dealing with threats such as terrorism. Most people assume that torture is necessary to make hardened terrorists talk. Michael Ignatieff (2004) maintains that “while some abuse and outright torture can be attributed to the sadism of individuals, poor supervision, and so on, it must be the case that other acts of torture occur because interrogators believe, in good faith, that torture is the only way to extract information in a timely fashion” (25). Mark Bowden offers some support for this perspective, describing a number of ways in which torture has compelled suspects to talk. But at the same time, Bowden notes that results vary from person to person; while torture works in some cases, it does not always work (Bowden 2003). Similarly, Stephen Budiansky also refers to “widespread disdain” among experienced military interrogators for abusive forms of interrogation: “many old hands in the business have pointed out that abusing prisoners is not simply illegal and immoral; it is also remarkably ineffective” (Budiansky 2005).

While controversy over the effectiveness of torture continues, the fact that a number of experts criticize the resort to harsh techniques and praise non-coercive methods tends to undermine the case for torture as a more generalized practice. Here Eitan Felner (2004) raises the objection that torture may be necessary in exceptional circumstances when there is no time to use “gentle persuasion.” In “Torture and Terrorism: Painful Lessons from Israel,” Felner looks at this objection in his analysis of the 1987 report by Israel: Commission of Inquiry, which held that coercive interrogation tactics were justified in order to obtain crucial information that could save innocent lives, such as the location of a bomb meant to be used in an act of mass terror against civilians (30-31). Felner points out a number of criticisms of this argument. First, he cites the criticism that the “ticking time bomb” scenario rests on a set of assumptions that are extremely improbable. It presumes that there is a bomb that will explode if not diffused; the suspect knows where the bomb is at the time; the suspect will provide the correct information if any only if tortured; and the information will enable us to discover and disarm the bomb in time, and so forth. Felner concludes that given the implausibility that all these conditions would be met the ticking bomb case assumes rather than proves that torture is an effective means to avert a clear and present danger, and as such it fails to provide a pragmatic basis for decision making (Felner 2004).

V. Conclusion

Torture is almost universally considered legally and morally unacceptable, and it is strategically detrimental to the nations who use it. Although there have been many definitions of torture, it has proven difficult to define as it is to police. There is a constant debate over whether or not torture can yield the critical intelligence information required to fight an asymmetric war. Although it may have plausibly aided tactical victories in the past against insurgents, the application of torture has also held negative strategic consequences that affect a state’s political and moral status. The consequences in terms of the worldwide reaction and the damage done to our moral standing are incalculable. For these reasons, many scholars maintain that torture is not an effective strategic tool in asymmetric warfare and we must take every reasonable measure we can to undo the damage torture has done.