Torture Thriving: It’s Time to Nail the Equivocators
In the immediate aftermath of World War Two, as awareness of the horrific atrocities inflicted by the Nazi regime on Jews, gypsies, homosexuals and the disabled filtered out, there was widespread international agreement that systems and structures should be put in place to prevent future recurrence of such barbarity. One pillar of these efforts was the establishment of the United Nations, armed with a mandate to prevent “aggressive war”, the “supreme crime” according to judges at the Nuremberg Trials and one from whose savage bosom the other evils had flowed.
The ensuing decades also gave birth to a range of treaties and declarations, such as the Universal Declaration of Human Rights, the International Convention on Civil and Political Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Geneva Convention and the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, all of which explicitly prohibited the practice of torture.
In the North, questions as to the permissibility of torture were generally considered beyond the pale of ‘civilised’ debate and, apart from the odd maverick, it was regarded as reprehensible to advocate for its practice. Indeed, the North frequently used to condemn the manner in which inhumane and undemocratic regimes in the South used torture to stay in power.
The reality on the ground was far more complicated, though, as states in the North were frequently complicit in the practice of torture either as an accessory or partner to non-democratic regimes in the South or behind ‘closed doors’ in the North itself. In addition, several states in the North were involved in pioneering new forms of torture methods that left no marks on its victims.
However, it was only in the wake of 9/11 and the Bush administration’s declaration of the ‘War on Terror’ that many intellectuals in the North felt sufficiently emboldened to pop their heads above the parapet and openly advocate for the reinstatement of torture as a weapon in the armoury of democratic states.
At the forefront of the torture advocates were members of the Bush administration. Alberto Gonzalez, then White House Counsel and later US Attorney General, argued that Bush’s decision to not apply the Geneva Convention against coercive interrogation to the ‘unlawful combatants’ of Al Qaeda and the Taliban, rendered US interrogators less liable for prosecution. In December 2002, Rumsfeld gave the green light for a range of interrogation techniques that entailed, inter alia, hooding, isolation, stress positions, sensory deprivation, 20-hour interrogations, dietary ‘adjustment’ as well as the use of dogs in Afghanistan and Guantanamo. The following April, Rumsfeld issued a memo in which he refused to rule out any interrogation method, allowing for the possibility of additional techniques being requested on a case by case basis.
While the Bush administration’s readiness to promote and justify the use of torture was perhaps understandable, if none the less abhorrent, the eagerness of liberal commentators to jump on the torture bandwagon has been arguably far more alarming.
One of the best known advocates of torture is the legal professor Alan Dershowitz. For Dershowitz, it is the ‘ticking bomb’ of potential terrorist atrocities that provides us with the moral right to torture suspects, should they prove unwilling to divulge such information voluntarily. Confronted with a situation where a captured terrorist has stubbornly refused to disclose information as to where a bomb has been planted, which might result in numerous fatalities, how should one act? Would it not be prudent and sensible, even moral, to torture the terrorist until he divulged his sordid secret so that we might prevent the loss of innocent life?
In defining his ‘ticking bomb’ in such a manner, Dersowitz is presenting his audience with an intellectual fait accompli. Although we risk damning ourselves morally to some degree by engaging in torture, a refusal to countenance so doing courts a far greater damnation as we risk becoming an accomplice in the murder of innocent people.
Indeed, Dershowitz goes on to argue that in certain instances interrogational torture should be legally sanctioned. After all, torture will doubtlessly be applied by concerned interrogators when faced with a ‘ticking bomb’ situation. Therefore, the least worst option would surely be to drop the “hypocritical pretence” of torture’s illegality and legalise it as needs dictate.
However, such linguistic mind games, clever though they may be, hardly provide a solid framework for deciding whether or not to introduce a legally sanctioned policy of torture. After all, as writers such as Alfred McCoy have cogently pointed out, the likelihood of catching a ‘terrorist’ we know has precise information regarding a bomb that will shortly explode at an unknown location and time, is so improbable that it would be a highly impractical foundation upon which to base one’s “law, diplomacy and national security.”
Variants of Dershowitz’s position can be seen in the arguments of other commentators such as John T. Parry, Richard Posner, Jean Bethke Elshtain and Henry Shue, who though in favour of the practice of torture in certain instances, do not believe it should be legalised.
Another important figure in this debate is Michael Ignatieff, the ex-head of Harvard’s Carr Center for Human Rights and current leader of the Liberal opposition in Canada. In The Lesser Evil, Ignatieff holds that while torture should never be upheld as a general practice, strong arguments might be made in favour of the judicious application of coercive interrogation techniques in extraordinary circumstances, in order to protect western democracy from the greater evil without. For Ignatieff, the trick would lie in “identifying the justifying exceptions and defining what forms of duress stop short of absolute degradation of an interrogation subject.”
Although Ignatieff is clearly more restrained than Dershowitz in his arguments, his writings are none the less pernicious. Such moral ambiguity towards torture - or coercive interrogations - can only help to pave the way for its re-entry into mainstream practice.
Torture should be unequivocally and absolutely condemned in order that it is recognised by everyone, and most particularly those in positions where it might be seen as just another weapon in their arsenal against the enemy, as unacceptable. Indecision as to its permissibility in exceptional circumstances only serves to let the evil genie of torture out of its bottle.
As Ian Buruma has argued, it was the “morally degraded climate” generated by the Bush administration and its phalanx of lawyers that created an environment conducive for the practice of torture that took place in Abu Ghraib. It was such a “morally degraded climate” that led to individuals like Lynndie England abusing Iraqi prisoners and not any specific inherent character defect in the torturers themselves.
Living as we do at a historical moment where the epithet of evil has been widely and randomly applied as a rhetorical device to demonise and, by extension, dehumanise the enemy of choice, thus justifying the application of ever more repressive means against them, the threat to our moral inhibitions preventing the practice of torture has become ever more serious.
While the Bush administration may have ridden off into the sunset, the torture debate is far from resolved. Neither would its practice appear to be over. Despite the appointment of a special prosecutor to investigate CIA prisoner abuse cases by Obama’s Attorney General Eric Holder, the policy of rendition, whereby terrorist suspects are kidnapped and removed to more ‘torture friendly’ jurisdictions, continues to flourish.
Perhaps the ethical paucity of the current ‘lesser evil’ arguments advocating the reinstatement of torture, in one form or another, was best captured by Erich Fromm who wrote almost 50 years ago that “[T]he principle of ‘the lesser evil’ is the principle of despair” and as such certainly not the right way for any society, particularly those that purport to be democratic, to defend themselves.
Discussion
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Comment by: Jean Bethke Elshtain
Jan 13th 2010 at 01:01
I don’t recognize my own position in this article. It is not, in fact, a variation of, or on, Dershowitz’s position, a stance I call “stunningly awful”, or words to that effect. I can never be said to “favor torture”. The argument I have made, one that is a variant on the classic “dirty hands” dilemma, is that torture must never become normative; it cannot and should not be legalized; and that ‘true torture’, if I may call it that (I don’t consider all aspects of coercive interrogation ‘torture’, e.g., shouting or keeping the lights on, etc., as that tends to undermine the horror of ‘real’ or ‘true’ torture, e.g., pulling out people’s fingernails, cattle prods to the genitals, cutting and beating, etc.) is to be eschewed. Is something like ‘waterboarding’, then, ever acceptable? I argue that everything in me tells me that such techniques should be avoided. At the same time, I recognize that were one of my grandchildren at risk and there was a very high degree of probability that the prisoner being held had sure and certain knowledge of what was to happen, I would with considerable horror and regret, likely give the green light to this technique–not as a good thing, one doesn’t ‘favor’ torture–but as a tragic necessity in a horrible situation. I do not think it is meet and right for intellectuals to opine from a lofty level about such matters and to look upon people who disagree as moral reprobates. Ask yourself what you would do to protect those nearest and dearest to you. Ask the question honestly. Then see what you come up with. This is an unpleasant thing to do when everything in one’s being recoils from deploying physical harm on a person rendered defenseless. My argument is along these lines and I do not see how that can be construed as “favoring” torture. Jean Bethke Elshtain
Comment by: Justin Frewen
Jan 13th 2010 at 04:01
Dear Jean Bethke Elshtain,
Thank you for your comment.
I am afraid though that while you may regard Dershowitz’s position as stunningly awful or whatever, your view is a variation of his, whether you like it or not. You are in favour of torture in certain instances, as I stated quite clearly in my piece – ie the ‘ticking bomb’ (Dershowitz) situation. I should note that I also mentioned in my piece that you were against legalizing torture – as you noted in your reply. Like him, you take an extreme example – in this case that of your grandchild being threatened and there being a “very high degree of probability that the prisoner” had information that could save your grandchild’s life. The use of ‘thought experiments such as this, while perhaps of interest to you and those in favour of torture – albeit in a limited manner – have very little validity in the real world. The likelihood that you would have a ‘terrorist’ caught who knew that something was going to happen to your grandchild of an unspecified manner is really just ludicrous. As it might be added was the example you gave in your essay in Levinson’s collection of essays on torture regarding the bomb in the elementary school building. Furthermore, the fact that your natural reaction would be the visceral one to torture the ‘potential’ bearer of such information does not make your action morally or ethically correct however you may twist it. The fact that I might want to kill someone who I am virtually certain harmed my child, does not provide ethical justification for my actions. Indeed, for society’s sake, I should be stopped and that is a major function of our current legal system and the rules that prohibit us from such behavior. Moreover what happens if you are wrong? Given the manner in which the ‘War on Terror’ etc has been conducted, I don’t think there would be too many people globally (and it is not just people in the west who count!) that would be happy to see your ‘just torture’ option become an accepted reality (horrible situation or not) – to add to the current curses of rendition and treatment meted out already to prisoners in Iraq, Afghanistan etc. Not only by US forces it should be added!
As Dr. Casey stated in your debate iwth him - The Moral Debate About Torture on 1 May 2009
Dr. CASEY: Well, the first thing we should observe is that there are no historical examples of that being lived out in reality. That’s a hypothetical contrary to fact, that it never obtained in the real world. What I worry about is the lack of rules to govern that exception. Many people argue that because they can create a hypothetical case like this there should be no rules against torture, and I think that is a grave moral error. The problem is we never know if that information can be elicited by other means. There’s no way to verify that, indeed, torture is the only option in those cases. So what happens if you torture that person and you turn out to be wrong, the information proves not to be true? But what do you say then to the person who’s tortured at your hands?
Like Ignatieff, you also make use of the lesser evil argument to defend this point of view. As you argued in the same interview:
Yes. I would say that the resort to extreme techniques would be used only after all other possibilities had been exhausted. It wouldn’t be the first resort; it would be the last resort, and again we’d have to be clear about what we’re considering torture here, because some of the most severe forms I think must be ruled out. But there are other forms of enhanced interrogation that, I think, under those extreme circumstances and as an exception, may well, under the ticking time bomb scenario, be resorted to.
Whether you think ‘extreme techniques’ and ‘enhanced interrogation’ should be the first or last resort, or as a “tragic necessity in a horrible situation”, is not the issue! You are in favour of torture – even if you would only sanction it with “considerable horror and regret” as you mentioned in your message - whether or not in a more restricted/restrained manner than Dershowitz or only in certain situations etc.
Your use of terms such as ‘extreme techniques, ‘enhanced interrogations’, ‘true torture’ and ‘real torture’ is a perfect example of intellectual casuistry - casting doubts as to what might be classified as torture. Once more – like the Bush administration – trying to muddy the waters in which this debate is taking place. Phillip Sands in his book The Torture Team, does a good job of demonstrating this with respect to Rumsfeld and his memos etc on extreme interrogational methods.
I also find your attempt at casting aspersions on my piece - and by inference myself - by stating that it is wrong for “intellectuals to opine from a lofty level about such matters and to look upon people who disagree as moral reprobates”, at best comical. While I may have done my fair amount of study over the years, unlike yourself I have never been an academic, let along one of decades standing. Indeed, I would argue that the real danger we face is the (organic) intellectual ruminations on the part of academics such as yourself who find new and ever more ‘tortuous’ ways to justify the completely reprehensible and unacceptable practice of torture IN ANY CIRCUMSTANCES.
I might conclude by adding that I am not alone with respect to my views regarding your viewpoint on torture, as I am sure you know. For instance, as Brecher writes:
While opposing warrants, Elshtain nonetheless thinks interrogational torture is morally justifiable. As Robin eloquently puts it, it ‘is not the routinizing of TORTURE’ that she objects to: ‘it is the ROUTINIZING of torture’ that she thinks wrong. (Torture and the Ticking Bomb, 2007: 17)
Best
Justin Frewen