Torture And Defense Purposes Against Terrorism Criminology Essay

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Especially after 11/09 most of the western democracies started questioning about the possibility to use torture for defence purposes against terrorism. The terms of the problem were framed from its legality to its procedures, from its benefits to its validation.

In this essay, the word "torture" will be used only according to the first part of the UN '75 definition, that is as 'any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the investigation of a public official on a person for such purposes as obtaining from him or a third person information or confession' (Conroy 2001: 36). It means that torture is not acceptable for punish or intimidate any person.

The composition will be divided into two sections: the first one charged to draw academic scenarios about the possibility or not to torture for saving lives, in the same time displaying how in practical terms the use of torture is completely contrasting with academic theories. According to the fact that saving lives provide practical justification for torture, the second part of this essay is aimed to claim three main points. First of all, nowadays there is a false choice between respect for human rights and avoiding terroristic acts. Secondly, torture cannot be examined in academic proposals: cause its practical justification it does not need the theoretical one. Lately, torture is always legitimated in extremely rare cases.

The guidelines to read the paper are coincident with the distinctions between empirical and normative aspects of the torture that create a wall among academics and post-11/09 antiterrorism measures. In theory it should be eliminated as practice and formerly banned because of it does not admit moral justifications. In practice, i.e. in political and security terms, it should be allowed, as extreme ratio, in cases of emergency, without any rhetorical rationalization. Cause the threat is not considerable "symmetrical" also the answer cannot respond to normal procedures because of the nature of the threat itself. It does not respond to the idea to establish a constant "martial law" government but only to the thought to guarantee complete safety for people.

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A long list of academics concentrated his efforts on the study of the use of torture especially in democratic countries.

It is possible to divide authors in three different groups: who is always against the use of torture even if it is the "lesser evil", another faction that argue that in some extremely rare and circumstanced cases is possible to torture without damaging human rights or ethics common feelings and academics who can tolerate torture in name of security and stability in homeland and abroad.

The major part of the authors considered here argue that there are no any kind of theoretical or practical justification to admit torture in our socio-political systems. At the opposite, allowing torturing will destabilize many aspects of our social living. Blakeley for example clarify that ' [w]While torture is also effective for securing stability for elites, this constitutes an illegitimate form of stability, secured through repression, so on this basis, torture should also be condemned' (2007: 375). Lukes has a strongest argument: torturing 'cannot be rendered liberal-democratically accountable, in the sense that it will sometimes be legitimate and, when not, punished, because its practice cannot be publicly recognized without undermining both the democratic and liberal components of liberal democracy' (2005: 1). For this reason people need its prohibition, in order to maintain moral inhibitions. For Macmaster (2004: 16) permit the use of torture means damage the socio-political basis that found a society: as soon as it will be consented, people will be not able to recognize or ask for respect of natural rights such as freedom or justice. Other two problems are raised are: the accountability (in military field there is a duty to obey to superior orders also in case of torture) and how to distinguish between urgent cases or bluff for the security system. Mayerfield (2008: 111) is quite radical in his proposals: the ticking bomb case is a surreal invention used to justify and spread the use of torture, because 'other extensions of the ticking-bomb argument to more realistic scenarios not sharing its morally relevant features must be rejected, and that reasons for an absolute legal ban on torture also support an absolute moral ban on torture' (2008: 112). Scarry is one of the most relevant opponent to the "torture party", especially in criticizing the ticking bomb scenario and the process of accountability. Meanwhile the first one does not have correspondence with the reality, in fact it is improbable and it assumes that the prisoner is always concerned about the mission to accomplish, the second aspect is totally undisciplined (Scarry in Levinson 2004: 291-8). Also Gilead underlines how torture is not only unjustified for any kind of purpose but also is not appropriate as method to obtain valid information. 'To torture any person, however atrocious and guilty, is a morally unbearable price. It is a borderline that no moral right (or obligation) of self-defense should cross' (2005: 168).

As part of the second group of thought Bellamy (2006: 124) argues that torture should be maintained prohibited but in exceptional circumstances, i.e. ticking bomb case, its use is allowed. In this way the use of torture limited to certain restricted cases is functional to the preservation of fundamental rights. Harel and Sharon follow the same line: [t]Torture can never be permitted or authorized by a rule or principle. Whenever it is justifiably performed it is performed under urgent and exceptional circumstances. On these basis the practical necessity of torture may be acknowledged, while the categorical nature of the prohibition on torture is maintained' (2008: 241). Fenwick strongly admits that torture should be based on the concept of 'proportionality: an immediate and very serious threat should be evident; the measures adopted should be effective in combating and should go no further than necessary to meet it' (2002: 101).

The third group of author is mainly represented by Dershowitz. He claims that he is personally against the use of torture, yet he argues that authorities should be permitted to use non-lethal torture in a ticking bomb scenario, regardless of international legal prohibitions; that it would be less destructive to the rule of law to regulate the process than to leave such permission to the discretion of individual law-enforcement agents. He is in favour of preventing the government from prosecuting the subject of such torture based upon information revealed during such an interrogation.

Torturing is completely different from these theoretical approaches mentioned above: it needs less concepts or ideas and more instruments of pain. In any document available from governments that allowed torturing to obtain information is clear the result that they wanted to achieve: saving lives.

In order to achieve this goal, Western democracies, especially US and UK decided to use specific instruments like rendition, illegal detention, interrogations and counterinsurgency (extra-ordinary treatments) and precise places like Abu Ghraib, Guantanamo Bay, Bagram (considered extra-territorial pieces of land). After 11/09 this is considered the alphabet of the "War on Terror" and all these measures are approved by law.

The real face of torturing is composed by stories like Maher Arar (Mutimer ?:160-62) one. A Canadian citizen that in 2002 on US territory was kidnapped, interrogated as a suspected terrorist, sent to special Syrian prisons and tortured because considered close to al Qaeda without any tangible trials. After ten months he was considered innocent and for this reason sent back at home. This story tells us apparently how distorted is the anti-terrorism process nowadays: it seems to be weak, imprecise, approximate with guilty and tough with innocents. Behind these critics there is the political choice to guarantee effective homeland security as much as possible. In fact US did it in name of the principle that '[s]Society must be defended, even if it means losing what it is that makes that society what it is in the process' (Mutimer ?:174).

'Detainee 063 was held in isolation for some six months. During that time he was regularly interrogated for 18-20 hours a day, starting at midnight, kept awake by dripping water on his head or loud playing of Christina Aguilera music- "sleep adjustment" combined with prolonged sleep deprivation' (Danchev 2006:262). The intention is to weak the will of the prisoner in order to receive information as much as possible. In Delta Camp humiliation (treat a Muslim like a dog), coercion ("waterboarding") and offense are the key words to comprehend how to deal with torturers. Reasons why torture is considerable an effective instrument to obtain information are given by the certainty that it destroys the will (Ryley Scott 1959: 30). The same approach is used in fighting insurgency: '[w]When the opponents are an underground organization ordinarily this takes the form of catching and torturing its cadre to gain the intelligence needed to destroy their networks' (Greer 2004:375). That is the aim of the counterinsurgency. To do it, liberal democracies are ready to exchange their values in name of internal freedom and security.

According to the cases study presented we can easily configure the bad sides of the coin. It means that torture in practical terms assumes different characteristics respect to the theoretical descriptions. Although it is evident, what still is not descript is what consequences can we notice allowing torture.

As shown in the case of torture in Northern Ireland by English officers in 1971 emerged that government authorities usually behave in the same way: torturers are rarely punished. In fact for what concern the act of torturing, at the beginning there was the attempt to deny, minimize, ridiculing victims. Then there was the phase of justifying the treatment because the victims are transforming into enemies. At the end there was the effort to defend the torturers admitting that nothing happen (Conroy 1959: 228-233).

According to the doctrine, we live constantly under the umbrella of a sort of "security dilemma" in terms of choice: on one hand there is the possibility to obtain information with non-ordinary methods without any reference to human rights; on the other one we are witnesses of abuses. Part of the scholars in the universities (Dershowitz especially) have found a good argument in order to admit torture avoiding and punishing abuses: it has been formulated the possibility to use warrants under judicial control. This is not a practical justification for torture but a merely legislative one.

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Meanwhile '[t]The overpowering fear inflicted on the 'innocent'/'civilian' targets of terrorism is calculated to have political and other attitudinal and behavioural effects on the appropriate authorities' (Booth 2008:65), torturing is always comprehensible in urgent terms of saving lives, in extreme cases (not ticking bomb scenario but in case of necessity and urgency) and without choosing between respect for human rights and prevention of a security threat. This composition try to boost the idea that torturing a subject to obtain information not have the same scope than terrorize: it is not a message for third parties, there is no other reason than saving lives with the information provided.

First of all '[t]The polarised choice between security and individual rights falsely suggests that measures to strengthen security necessarily involve the sacrifice of human rights and liberties' (Ramsay 2006:117). This position allows to move forward to the theoretical situation in which more security needs less rights: rather than torturing is more effective a coordinated foreign policy aimed to the will to defeat terrorism because torturing will not extinguish the long-term threat, but only the short-term danger. To explain that we need previously to admit that 11/09 created also a new formulation of the concept of sovereignty with a stronger accent on the control of people and a new concept of right to person and physical security (Foot 2005:307). But nowadays we are not exploring alternatives to the torture, it means that for the moment it represents a fundamental step for our safeguard.

Secondly, it is wrong as well referring torture mainly to the ticking bomb scenario, an academic case study more than a practicable one (Zizek …). This is dictated by the fact that the university world did not experience personally what is terrorism, who is a terrorist and what torturing means. In fact it is wrong conceptualizing the phenomenon in terms of suspension of human rights in name of fighting against terrorism in a global emergency framework. The terms of the problem are different: there are historical proves that torture was allowed times before Romans. It means that for 2000 years our societies have accepted the idea that moral prohibition of torture requires the approval of the moral costs in cases of violating it. For this reason is not understandable why suddenly torturing is becoming a problem, because it is an old method of obtaining information, present in all the corners of the world, considered useful and until 2001 not seen as a threat for legal rights. What is changed is a constant academic and sterile rationalization of the phenomenon. For years it was considered legal, acceptable, normal part of the judicial system and the major part of our contemporary democracies had experiences of torturing, even if officially liberal.

Thirdly, torture even before 11/09 was used secretly because with the same scope that today we give it: '[w]When a normal system of justice proves ineffective, the State usually has recourse to a more authoritative procedures - that of extraordinary justice' (Vidal-Naquet 1963:166). Modern anti-terrorism measures respond to the target to avoid the threat as much as possible as soon as possible. That is why the number of emergency cases in which torture is allowed is slowly becoming bigger: our democratic systems experienced inefficiency in front of phenomenon and answered employing an instrument useful when all other ones are not working. 'Cicero anticipated the dilemma facing democracies trying to respond to the threat of terrorism when he wrote "inter arma silent leges"-in battle, the laws are silent' (Raviv 2004:181). To achieve the greater good, people in positions of leadership sometimes must do things they have major scruples about. A moral politician making the decision will authorize the torture "even though he believes that torture is wrong, indeed abominable, not just sometimes, but always. This decision, as horrific as it is, is the correct one: it is this role specific ethical standard that distinguishes proper behavior by the average person from proper behavior by those who govern us.

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Torturing has only practical justification, because at least officially we cannot permit the moral and ethical ones. It has been demonstrated that the academic purposes of explaining reasons for torture in both cases (pro and con) is not able to clearly justify it, because it persists in looking for scientific proves. Menawhile the major part of the authors criticize it especially morally, society has been characterized ready for its moral costs. The university debate does not count the political aspect of torture: guaranteeing safety for all the portion of population needs a different approach than looking for theoretical justifications. It has been underlined how the suspension of human rights is something permitted in private (self-difence), by law (e.g. case of imprisonment), in order to prevent a large number of deaths and actual because we cannot validate the grade of harm in case it had not taken place. And also, it has been clarified that a debate about torture is not to consider as a way to expand the democratic ideology and against an Islamic state influenced by globalization and unresolved international issues (Cohen and Corrado 2005:103).

Saving lives provides practical justification for torture because that is the aim of the modern democracies after 2001 terroristic attacks in New York: providing security for every citizen. It was also the aim before 11/09, what is changed is partially the instruments adoperated to achieve it: torture. A method always used, an instrument of domestic policy.