Torture: Is it ever justifiable?
“Torture has ceased to exist” Victor Hugo, the famous French novelist announced in 1874 (Abrahamian 1999, p. 1). Before the beginning of the 21st century, all people, at least those living in developed countries, would have readily agreed to Hugo’s famous pronouncement. Then came September 2001 – and everything changed.
According to the UN, torture means “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed […]” (UN 1984, Article I). In the aftermath of the terrorist attacks on September 11th 2001, not only American society but the whole world was forced to question its values and a heated debate about the justification of torture was set in motion. The prohibition on torture is accepted as a peremptory norm of international law, it can be found in numerous human right treaties and torture used to be incompatible with the values of a civilized society (Luban 2009, p. 1427). In Contrast, various scholars advance the view that sometimes the rights of few must be sacrificed in order to save the lives of many and to ensure national security (Evans 2007, p. 57). However, there is compelling evidence that torture can never be (legally) justified.
The line of justification of those supporting torture most commonly focuses on so called “ticking time bomb” scenarios. These are hypothetical situations in which a captive knows where a time bomb is hidden but refuses to divulge that information (Pfiffner 2008, p. 134). In such situations, it is contended, torture is morally permissible and justifiable as it is the only means to save innocent lives. In these circumstances, it is less bad to inflict physical harm on a guilty person than to allow large numbers to die (Bagaric & Clarke 2007, p. 4). According to Bagaric and Clarke, torture should be used when “the threat is imminent, there are no other means of alleviating the threat, and the suspect is known to have the relevant information” (2007, p. 4).
The point is that in a world of imperfect knowledge and uncertainty the ticking time bomb scenario can not apply. Without questioning the morality of torture, there are some requisites that would be necessary for a ticking time bomb scenario to be genuine and thus, according to the proponent’s argumentation, would legitimize torture. First, there must be a planned attack and the interrogators must capture the right person (Pfiffner 2008, p. 135). There have been numerous examples of U.S. personnel torturing innocent persons in Guantanamo Bay without sufficient evidence that they had crucial knowledge about terrorist attacks or that there was an imminent threat. For instance, even authorities thought that just one out of fifty captives in Guantanamo knew where Osama bin Laden was hiding (Luban 2009, p. 1443). They certainly did not know which captive. Would it be right then to torture 49 (innocent) detainees with nothing to tell you on the uncertain chance of capturing bin Laden or on the even more uncertain chance that capturing bin Laden would prevent the death of innocent people?
A second requisite of the ticking time-bomb theory is that torture must be the only way to alleviate the threat. Ali Soufan, a former FBI special agent and one of the most successful U.S. interrogators of al-Qaeda operatives, argues that torture does not work because when people are in pain, they will say anything to get the pain to stop. That means that the tortured detainee will make up any lie to make the torturer stop hurting them and hence, the information obtained is useless (Ghosh, 2009).
Soufan’s argumentation is not only supported by other interrogators but also by various psychologists. Therefore, it can hardly be argued that torture is the only way to alleviate the threat.
The preceding deliberations show that, even if one claims that torture is justifiable in a ticking time-bomb situation, almost every torture scenario is ruled out because a genuine ticking time-bomb situation barely ever appears.
There lies another, malicious error within the ticking time-bomb hypothesis. It presumes a single, case-by-case decision about whether to torture. It further assumes that this decision is made by officials who would only torture in a desperate emergency. But the real world is not a world of ad hoc decisions but one of policies, practices and guidelines (Luban 2009, p. 1445). The hypothesis asks us to assume that the power to authorize torture will not be abused by officials and that they won’t lie about what is at stake or about the availability of information. Even more important, ticking time-bomb theory postulates that the readiness to issue torture in one case (where it might be justified) won’t lead to the extension of torture to other cases (slippery slope argument) and that the existence of a law allowing torture in extreme cases (such as ticking time-bomb) will not change the politics of the police or the army (Waldron 2010, p. 220). Supporters of torture claim that the installation of a “principled break” or a “torture-warrant” would prevent the extension of torture to cases where it is not justified (under the presupposition that there are cases where it is justified). They argue that a limitation on nonlethal torture to convicted terrorists who have knowledge of future massive terrorist attacks would invalidate the slippery slope theory (White 2012, p. 66). Alan Dershowitz, a professor at Harvard Law School, holds the opinion that if there had been a legally authorized practice of torture or any regulation, it would have been less likely that the abuses in Abu Ghraib prison would have occurred (Card 2010, p. 187). This argument completely ignores the fact that, not only in Abu Ghraib but also in other recent cases, the existence of any given regulatory regime did not hinder people from going beyond what is legally permitted (or prohibited). The crucial point is that torture is not an area in which human motives are trustworthy but where human characteristics such as Sadism, pleasure of indulging brutality or the love of power apply (Waldron 2010, p. 220f). Especially in the context of war and terror, where other usual restraints on human action are already loosened, these characteristics cannot be regulated through a torture-warranty.
Indisputably, there are situations (ticking time-bomb) in which torture could be comprehensible (not justifiable). However, the preceding deliberations provided compelling evidence that ticking time-bomb situations hardly arise in a world of imperfect knowledge and uncertainty and thus, it is difficult to argue that there are circumstances which give legitimacy to torture. This argument is enforced by the paragraph about “slippery slope” and psychological mechanisms of humans which showed that a torture-warrant for time-bomb situations would eventually lead to an expansion and misuse of torture. The previous articles demonstrated that even without advancing the strongest argument of all which is that torture is morally wrong and violates human rights and human dignity , the use of torture can never be justified.
List of References
Abrahamian, Ervand (1999) Tortured Confessions. Prisons and Public Recantations in Modern Iran. Los Angeles/California: University of California Press
Bagaric, Mirki & Clarke, Julie (2007) Torture. When the Unthinkable is morally permissible. Albany: State University of New York Press
Card, Claudia (2010) Confronting Evils. Terrorism, Torture, Genocide. New York: Cambridge University Press
Evans, Rebecca (2007) The Ethics of Torture. New York: The New Press
Gosh, Bobby (2009) A Top Interrogator Who’s Against Torture. Time U.S. http://www.time.com/time/nation/article/0,8599,1893679,00.html (last accessed: July 2012)
Luban, David (2009) Liberalism, Torture, and the Ticking Bomb. In: White, James E. (ed) Comtemporary Moral Problems: War, Terrorism, and Torture. Boston: Cengage Learning
Waldron, Jeremy (2010) Torture, Terror and Trade-Offs. Philosophy for the White House. New York: Oxford University Press
White, James E. (2012) Contemporary Moral Problems: War, Terrorism, Torture and Assassination. Boston: Cengage Learning
Pfiffner, James P. (2008) Power Play. The Bush Presidency and the Constitution. Washington D.C.: Brookings Institution Press
United Nations (1984) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. http://www.un.org/millennium/law/iv-9.htm (last accessed: July 2012)
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