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Can The Torture Of Terrorist Suspects Be Justified Criminology Essay

In advancing into this essay, I shall discuss the history of prohibition of torture, the Utilitarian approach to torture which would include arguments and debates in favour of justification of torture by taking account of the ticking bomb hypothetical, a case study of Guantanamo Bay and the result of torturing terrorist suspects in recent times. This essay would also examine the deontology approach to torture and make recommendations on other means of getting information and truths from terrorist suspects.

BACKGROUND TO PROHIBITION ON TORTURE

Torture and other cruel or inhumane treatment has been internationally outlawed since the end of the Second World War and the 1948 Universal Declaration of Human Rights stated that ‘No one shall be subjected torture or to cruel, inhuman or degrading treatment or punishment’. It allows for no exceptions under any circumstances. This prohibition can also be found in Article 7 of the International Covenant on Civil and Political Rights and the American Convention on Human Rights, Article 5 (2) of the American Convention on Human Rights which are both binding on the United States.

In addition, Geneva Conventions III, IV and Optional Protocol I in Articles 17, 32 and 75(2) respectively prohibits physical or mental torture and any forms of coercion against a prisoner of war, they also prohibits an occupying power from torturing any protected persons and torture of all kinds and any other outrages on personal dignity, against anyone under any situation.

Also the 1984 Convention against Torture takes these general duties and conventions and codifies them into a more specific rule. It criminalizes torture and tries to prevent any exemptions for torturers by disallowing his access to every possible refuge. The convention states categorically that there will be no circumstances – peace time, war time, or even war against terror where torture would be permissible.

Importantly even before September 11, the International Convention Against Torture (Art 2.2) states that “no 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”.

The word torture is clearly a subject matter in which International Law is clear about. It does not matter who the person or persons involved are whether criminals, combatants, members of the Taliban or terrorist suspects, the rule is torture is not permissible for any reason. Anyone who threatens or participates in torture would be treated as a criminal before the law.

Sands (2004: 208) furthermore explained that absolute prohibition is related to a second set of rules that deals with the status of the terrorists- whether they are to be treated as combatants or criminals. If he is a member of a regular armed force then he is a combatant and must be treated as such and is entitled to protection under International Humanitarian Law. But if he is a member of an Insurgency group such as Al- Qaeda, who is thought to have planned or is planning a suicide attack, International Law regards such people as criminals. The United States, Britain and over a hundred states support this approach. The 1997 International Convention for the suppression of Terrorist Bombings followed that analysis and made it a criminal offence to attack a government structure or facility, a public place or a state with the aim of causing death or damage. State parties to the 1997 Convention have consented to subject anyone who is thought to have been involved in terrorist activities to criminal procedure, by either prosecuting them or extraditing them to another state that will eventually prosecute them. The convention explicitly guarantees ‘fair treatment’ to anyone who is taken into custody under its provisions which includes rights provided both under the International Humanitarian Law and the International Human Rights Law.

Unfortunately, Lawyers in the Department of Justice and in the administration of President Bush had provided detailed legal advice to the US government on International Torture Rules. According to Sands (2005:205) they suggested that interrogation practices could be defined without mentioning the constraints placed on the United States as a result of its international obligations and that so long the practice was in accordance with the US law, it would be fine.

This advice categorically ignored the 1984 Convention against Torture and all other international treaties and rules in which the US was bound. It plainly ignored the prohibition against torture in all circumstances, definition of torture, the classification of detainees either to be combatants entitled to prisoner of war status or criminals. Sands (2005: 222)notes the following:

           

“Over time a great deal more information will emerge.  But even at this stage it seems pretty clear that the legal minds which created Bush’s doctrine of preemption in the use of force and established the procedures at the Guantanamo detention camp led directly to an environment in which the monstrous images from Abu Ghraib could be created.  Disdain for global rules underpins the whole enterprise”. 

The deontologist-utilitarian debate over torture provides a useful background and reflects common reasoning when faced with this dilemma. Our immediate focus is on the inhumanity of torture (emphasized by deontologists) and the numerically greater threat to innocent people (emphasized by utilitarianism). However, the situation is presented deceptively simply; the next section will examine its flaws.

THE DEONTOLOGY APPROACH AND ARGUEMENTS AGAINST TORTURE

Deontology would appear to prohibit torture in all cases. This approach invoking Kant as the traditional torchbearer of this approach, Kay (1997:1) describes Kant’s theory as “an example of a deontological or duty-based ethics: it judges morality by exploring the nature of actions and the will of agents rather than goals achieved”. Roughly, a deontological theory looks at input rather than result. Kay (1997:1) noted that this is not to say that Kant did not care about the outcomes of our actions--we all wish for good things. Rather Kant insisted that as far as the moral evaluation of our actions was concerned, consequences did not matter.

Deontologism is an approach which seeks to create universal rules for the morality of human action; its ideas of common humanity and fundamental human rights were very influential in the banning of torture. (Turner, 2005: 7, 15) Kant’s deontological approach creates two universal rules by which moral questions can be addressed: ‘Act as though the maxim of your action were by your will to become a universal law of nature,’ and ‘Act so that you treat humanity, whether in your own person or in that of another, always as an end and never as a means only.’ (in Turner, 2005: 14) Under the first rule, the act of torture cannot be justified as we would not accept it being universalized and potentially used against ourselves. Under the second, torture is wrong because torturing a person for information is to use them as a means only. (Turner, 2005: 15) Thus Kant’s logic leads to the conclusion that torture cannot be justified under any circumstances. The individual who chooses not to torture makes the correct moral decision regarding their actions despite the terrible consequences that might result.

By torturing a captive, we are treating him as a means only (towards the acquisition of information) as he is definitely not being treated in a way to which he would consent. Torture fails to respect him and treat him inhumanely. Kershnar (1999; 47) believes in some cases utilitarianism would support torture and that because Kantian deontologists would, in all cases, reject it, “torture has the position of being a very interesting concept for ethical inquiry”. People no doubt have their commitments to utilitarianism or deontology but, given the conflict, there is at least something to talk about and some debate within which to advance opinion to maintain one conclusion or the other.

Posner (2004:296) clearly states that if legal regulations are propagated authorizing torture in definite situations, officials are bound to want to explore the outer limits of the rules and practise, once it were thus regularized, it would likely become a norm, in other words, taking an extra step outside the approved situation which would result in abuse of the system.

THE UTILITARIAN APPROACH AND DEBATES JUSTIFYING TORTURE

The utilitarian approach to torture according to Fritz (2005: 107) argues that the right action is the one, out of those available to the agent, that makes the best use of total aggregate happiness. We might to a certain extent simply imagine a situation in which the disutility of torturing a captive (his pain, the discomfort of the torturer, expense, permanent effects to both, chance of negative events causally connected to torture, etc.) is outweighed, or even dramatically outweighed, by the utility of torture (information is provided that saves many lives and therefore acquires all of the associative utilities).

This utilitarian approach is exemplified by one of the most controversial debates on torture which is the “ticking time-bomb scenario”. This scenario has been thoroughly discussed by Michael Levin and Alan Dershowitz (2002:150) where they have both argued that torture is “obviously justified” when it is the only way to prevent a serious and impending threat and must regulated by a judicial warrant requirement. The ticking bomb hypothetical tries as much as possible to depict torture as an exception in an emergency. This scenario arises where law enforcement officials have detained a person who supposedly knows the location of a bomb set to explode, but who refuses to disclose this information. Officials could apply to a judge for a torture warrant based on the absolute need to immediately obtain information which will save lives. In other words to avert a greater evil, a lesser evil needs to be done.

Another school of thought under the utilitarian approach proposes retaining absolute ban on torture while executing off book torture (ex post). Gross (2004:238) argues that in exceptional situations officials must step outside the legal structure and act extra-legally and be ready to accept the legal implication of their acts, with the likelihood that extra-legal acts may be legally (if not morally) excused ex post. Elshtain(200: 77) in the same way advised that in conditions where we suppose that a suspect might have crucial information, it is usually better to act with harsh inevitability. To condemn torture is to “lapse into pietistic rigour in which moral torture of terrorist suspects purity is ranked over all other goods”.

The primary justification for the torture warrant proposal is that it is compulsory to protect the public. On this view Saul (2004:657) notes that violating the human rights of the individual is essential to safeguard the human rights of the many. Without considering if the information extracted from a tortured terrorist suspect is relevant or not, evidence obtained under torture is inadmissible in court under Article 15 of the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1984). Article 15 reads: “Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”

Dershowitz is of the opinion that there should be an exception to torture which would justify the actions of interrogators as essential to avert greater evil to world. To him, it made no difference whether cases are real or imagined; all that matters is the theory’s commitment to the moral obligation to torture in cases of imminent evil. Perhaps the general adherence to the rule “torture is wrong” is more likely than its negation to maximize happiness.

Dershowitz's proposal was fortified by Fritz Allhoff in his article "Terrorism and Torture" Fritz (2005:17) concluded that:

"The conditions necessary to justify torture are: the use of torture aims at acquisition of information, the captive is reasonably thought to have the relevant information, the information corresponds to a significant and imminent threat, and the information could likely lead to the prevention of the threat. If all four of these conditions are satisfied, then torture would be morally permissible."

Efforts to justify torture are often accompanied by rejection of any adverse physical condition effects of the selected torture methods used by interrogators.

The ticking bomb scenario makes for great philosophical dialogue, but it rarely arises in real life, at least not in a way that avoids opening the door to persistent torture. In fact, interrogators hardly ever learn that a suspect in custody knows of a particular, impending terrorist bombing. Intelligence and information is rarely if ever good enough to display a particular suspect’s knowledge of an imminent attack. Instead, interrogators tend to use inferred evidence to show such “knowledge,” such as someone’s relationship with or apparent membership in a terrorist group. Moreover, the ticking bomb scenario is a dangerously expansive metaphor capable of embracing anyone who might have knowledge not just of imminent attacks but also of attacks at undetermined future times. After all, why are the victims of only an imminent terrorist attack deserving of protection by torture and mistreatment? Why not also use such coercion to prevent a terrorist attack tomorrow or next week or next year? And once the taboo against torture and mistreatment is broken, why stop with the alleged terrorists themselves? Why not also torture and abuse their families or associates or anyone who might provide lifesaving information?

Dershowitz's arguments were faulted by Saul (2004:659) for various reasons which include the threshold of suspicion whereby it is unfeasible for law enforcement officials or judges to know with any legally acceptable height of conviction that the suspect actually possesses the intelligence and information, or whether the suspect is in anyway involved with a terrorist activity. Dershowitz's standard of “probable cause” is much lesser than the benchmark of evidence essential in a criminal case which requires that you can proof beyond reasonable doubt and more relaxed than the civil benchmark that is based on the balance of possibility. This means that a person may be tortured because of unproven evidence which still poses a risk that countless innocent people will be tortured. Saul (2004:659) notes that “the uncomfortable probability of collateral damage is poorly dealt with by Dershowitz”.

Officials are faced with multiple unknown variables, including the existence of a bomb, interval of bomb explosions, the chances of neutralizing it, the identity of the terrorist suspect, the probability of the suspect being knowledgeable about the explosion, and the truthfulness intelligence gathered from the suspect. Speculation, guesswork, and supposition will unavoidably play a part in law enforcement judgments at every level due to the fact that accuracy of the information is not certain.

The Geneva Convention IV (art3 (1)(a), for example, require that a person be “definitely suspected” of threatening State security before exceptional powers can be implemented. Saul (2004:1) believes that the border for error drastically multiplies in the pre-trial phase, where any available evidence is imperfect and unproven. The atmosphere of tragedy and emergency surrounding the incident may encourage errors, inaccuracy or dependence on weak evidence, by law enforcement agencies and courts under pressure which may eventually produce false results.

Another major fault noted by Saul(2004:1) is the threshold of anticipated harm in which he seeks to question how many lives justify torture. Dershowitz limits his torture warrant proposal to the much-fantasized “ticking bomb” scenario. But he still acknowledges that very rare cases of actual ticking bomb scenarios have ever taken place. Benvenist(1997) try to give a concrete Israeli example, but the harm averted was the prevention of the killing of a single kidnapped Israeli soldier which is not even close to the exemplary ticking bomb case hyperbolically referred to by Dershowitz as involving the prevention of “thousands” civilian deaths.

Apart from trying to prevent “thousands” of deaths, Dershowitz provides few parameters for the ticking bomb scenario. How dangerous must a bomb be before torture is justifiable? Does it only refer to weapons of mass destruction, or also conventional weapons? Is the danger supposed to be quantified by the number of lives threatened as Dershowitz appears to suggest? If so, how many “thousands” must be at risk before torture should proceed, and why is it thousands rather than hundreds of people, or less? What if the bomb causes major economic loss, but does not actually kill people? It is certainly very difficult to identify a ticking bomb scenario or to place limits on the utilitarian calculation necessarily involved in torturing one to save many. The Isreali Supreme Court (1999) noted that the so called ‘necessity defence’ could not be justified and prohibition of Torture is absolute and “there is no room for balancing”. Dershowitz’s argument is built largely on faith that forcing torture into the open would reduce its use.

Furthermore, given the decentralized nature of modern terrorism, it might be possible for law enforcement agents to dispute or conclude that every suspected terrorist act can be likened to “ticking bomb”, thereby justifying ‘widespread preventive torture’. A terrorist is likely to target any location, within an unknown time interval, causing an indefinite number of casualties. There has not been any particular set of rules guarding issue of torture warrants to immediate ticking bomb scenarios. Torture warrants is open to flexible interpretation of the probable and expected harm to be done by the strike of terrorist suspects. Dershowitz also appears to emphasize that the consent of a democratic public are relevant to the justifiability of torture in a particular case and that torture should not be ruled out universally. In reality, we can say that torture has not been seen to give excellent intelligence and results. This would be discussed in the next section.

RESULT OF TORTURING TERRORISTS IN RECENT TIMES

The issue of the efficiency of torture is complicated to conclude, since there are minute consistent and trustworthy facts accessible on the number of terrorists that have been tortured and of this number, how many offered information or intelligence that was subsequently useful in preventing deaths and a greater evil or gratifying the reason for conducting the interrogation. As a result of this we can say that torture has done more harm than good and its outcome over time has not been tangible enough to justify it.

Payes and Mazzetti (2004:A1) reported that in July 2004, an Army investigation of detainee operations in Iraq and Afghanistan exposed ninety-four cases of alleged abuse, as well as thirty-nine deaths in U.S. detention. Twenty of the deaths were suspected homicides. The military was reported to have probed into, fifty-eight deaths in Iraq, which comprising nine cases of justifiable homicide, seven homicides, and twenty-one deaths from natural or undecided causes. In one case of a detainee death, several soldiers have been charged with abuse rather than homicide due to inadequate evidence. In a different case, two soldiers were charged with intended murder. (Eric Schmitt, 2004:A7). He also reports that a Navy SEAL, whose identity has not been released, is being court-marshalled in connection with the beating of Manadel Jamadi, who was later killed, allegedly by CIA interrogators, in Abu Ghraib (and who was photo-graphed there, packed in ice).

“Realistically, the abuses of detainees at Abu Ghraib, Baghram, and Guantanamo pale by comparison with the death, maiming, and suffering in collateral damage during the Afghan and Iraq wars. Bombs crush limbs and burn people’s faces off; nothing even remotely as horrifying has been reported in American prisoner abuse cases. Yet as much as we may regret or in some cases decry the wartime suffering of innocents, we do not seem to regard it with the special abhorrence that we do torture” (Luban 2005:5)

Accounts have been given according to Wall Street Journal (2005: A16) which accuses United States interrogators to have used various interrogative techniques ranging from water boarding which was agreed to be “most coercive technique ever actually authorised” by U.S officials involves the submerging of victims face in water or wrapping it in a wet towel stirring up drowning feelings.

Luban (2005:12) sees the principal scenery for torture to always be military triumph. In which the conqueror captures the enemy and tortures him. Torture to an illiberal state as he is noted is not only to get and an extract information and intelligence but also to humiliate the loser, to terrorize the victim to submission and to punish the suspect. Whereas Torture to a liberal state is a tool used to gather or extract information and intelligence from a suspect who has refused to disclose information. This may seem to be the same with torture used by an illiberal state to extract confession but the fundamental variation lies in the reality that confession is retrospective as it concentrates on acts of the past while intelligence gathering is futuristic as it aims to gain information to avert prospect evils.

Moreover, coercive interrogation creates a less safe environment by effectively preventing criminal prosecution of the detainees. Once a confession is gotten forcefully, it becomes extremely difficult to prove, as due process requires, that a subsequent prosecution of the suspect is free of coercion. As a result, Jehl(2005) believes that the Bush administration finds itself holding some suspects who clearly have joined terrorist conspiracies and might have been criminally convicted and subjected to long prison terms, but against whom prosecution has become unfeasible. In February 2005, the Central Intelligence Agency (CIA) began to worry openly about the problem. What happens, it worried, when continuing to detain suspects without trial becomes politically untenable, but prosecuting them is legally impossible because of taint from coercive interrogation?

‘Slippery slope’ arguments also address the wider implications of justifying torture. They are concerned with the gap between theory and practice; arguing that the theoretical limits imposed upon the use of torture would never work in practice. It is well documented that torture spreads from one class of prisoner to others, from one type of treatment to harsher types, and from one emergency situation to routine use. (Shue, 1978: 141; Saul, 2005: 3; Pfiffner, 2005: 21)

The Israeli experience demonstrates these dangers. In 1987, the Landau Commission advised that coercive interrogation of Palestinian terror suspects should be legalised in extreme cases. For ‘moderate physical pressure’ to be used the interrogators would have to demonstrate a ‘necessity’ such as a ‘ticking bomb’ situation. (B’Tselem, 2006) However, by 1999, the evidence that this ruling was being abused had become so overwhelming that the practice was outlawed by the Supreme Court. (Bowden, 2003) It was estimated that during this period 66% to 85% of all Palestinian suspects were ill-treated and that in many cases this amounted to torture. Supposed ‘ticking bomb’ cases were pursued on weekdays but were not severe enough to warrant weekend interrogation; torture had become ‘routine, systematic, and institutionalized’ (B’Tselem, 2006). Though returning to a complete ban, the legal repercussions for potential torturers are able to act as a deterrent.

Another consequence that is little considered is the impact that becoming a torturer would have on the individual responsible. Torture is not possible without the brutalisation of the torturer; you must ‘lose your soul’ if you are to save the victims. (Pfiffner, 2005: 20; Meyer, 2005) To torture requires us to overcome our socially conditioned abhorrence of violence and to accept the psychological repercussions. Shue argues that torture carries a much greater moral stigma (and therefore requires greater brutalisation) than killing in war, for example, as it constitutes an act of violence against an entirely defenceless being. (Shue, 1978: 130) The argument for legally sanctioned torture in some situations overlooks the secondary source of suffering it requires; the harmful psychological and social consequences endured by people who must train in and practice torture. To require this of someone is morally very problematic.

A further adverse consequence of allowing torture in some cases is the impact it would have upon the judicial system. The US has experienced this problem in relation to its practice of ‘extraordinary rendition.’ Secretly sending suspects for interrogation in countries known to use torture may occasionally provide useful information but torture evidence cannot be used in any reputable court. US government refusal to allow some of its prisoners to testify in criminal trials has led many to believe that the US is hiding the evidence of torture. As a result, the trial of Zacarias Moussaoui in relation to the 9/11 attacks was stalled for four years and, in 2004, Mounir Motassadeq, the first person to be convicted of planning the attacks, had his sentence overturned because the allowable evidence against him was too weak. (Meyer, 2005)

CONCLUSION

Dorfman(2004: 17) expressed his opinion by saying “ I can only pray that humanity will have the courage to say no, no to torture, no to torture under any circumstance, no to torture no matter who the enemy, what the accusation what sort of fear we habor, no to torture, no matter what kind of threat is posed to our safety, no to torture anytime, anywhere, no to torturing anyone- no to torture”.

Torturing terrorists is a cruelty in which many prefer not to be faced with in the media. Some will counter it, some will openly justify it, and others will secretly go along with it providing that it is not sadistic and serves a useful, although unheralded, early-warning function in the war on terrorism. Those arguing for the justification of torture on terrorist suspects say it has helped prevent attacks. This cannot be asserted as evidence is unreliable and subjectively sketchy

In all likelihood, Dershowitz's proposals will remain only proposals and Allhoff's arguments, as convincing as they seem, will not change existing laws. If Deshowitz’s proposal works, then judges would oversee the permission to torture while politicians pick judges. If politicians accept torture, judges would accept as well. Though we cannot be sure of the accurate motivation of the terrorists, one thing we know for sure is that violations of human rights and gathering of information through torture will not extinguish the threat they pose. Justifying torture is just replacing a respect for human dignity with an accommodating, excusatory retort to abuse.

The ‘ticking bomb’ case provides perhaps the most convincing justification for torture that we have, the erosion of the torture prohibition that could be caused by justifying and legalising the practice, and the ‘slippery slope’ from exceptional to routine use of torture, would have very wide implications and could lead to the torture of many individuals across the world. There would undoubtedly be innocent victims faced with long-term suffering as a result, and these victims would include those required to carry out torture. Further, the use of torture makes it impossible to use any evidence collected in a criminal trial and the US has already begun to see key suspects being acquitted as a result.

These arguments lead me to believe that torture is unjustifiable, even in extreme cases. However, because the immediate choice is so difficult and because the person making it is possesses human emotions and instincts, I would not absolutely condemn the decision to torture provided it was made in an emergency situation and with the correct intention. To make prior judgment that torture is justified in some circumstances is dangerous and wrong – torture must be prosecuted as a crime wherever it occurs. However, it is also important to recognize the mitigating circumstances when it occurs.

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