Is torture justifiable in the war on terror?

Table of Contents

Introduction

The Moral Wrongness of Torture

Can Torture be Practically Justified?

Terroristic Torture in the War on Terror

Conclusion

Introduction

Torture has been at the forefront of the War on Terror from the very beginning. Yet torture itself has a much longer history than that of the War on Terror and has historically has been used to punish people for misdemeanors rather than to gather information as is the purported reason for the use of torture in the War on Terror (Onuf, 2009:26). The use of torture by the US in their War on Terror is not the first time that a Western state which holds itself as a champion of democracy and guardian of rights has used torture as both Britain and France used torture in Northern Ireland and Algeria respectively. The US has attempted to justify their use of torture or ‘enhanced interrogation techniques’, like waterboarding, by making a number of questionable legal manouveres such as those advocated by the infamous ‘torture memos’ which claimed the President was free to override international law banning torture at his discretion (Office of the Deputy Assistant Attorney General, 2002:1). The Bush administration has, in the War on Terror, flatly denied using torture with President Bush (2006) claiming that “the United States does not torture”. However, it seems as the War on Terror has progressed torture’s popularity and perceived justifiability has increased as a recent Reuters/Ipsos poll (2016) showed that 63% of Americans believe torturing terror suspects to be often or sometimes justified, similar to levels in countries such as Nigeria who often experience militant attacks. The perceived justifiability of torture in the War on Terror by Americans is also reflected in the election of President Trump who consistently advocated for the use of torture, claiming “only a stupid person would say that it (torture) doesn’t work” (Masters, 2017). So, do only “stupid people” say that torture doesn’t work and, more importantly, is the use of torture justified in the War on Terror? In order to answer this question, this essay will address the moral wrongness of torture and whether or not it may be justified. The justifications of torture will be shown to be ineffective and illogical and torture in the war on terror to be unjustifiable primarily due to its terroristic nature.

The Moral Wrongness of Torture

Torture is defined in Article 1 of the United Nations Convention against Torture (1984) as intentionally causing mental or physical pain or suffering in order to obtain information or to punish the victim or a third party. Kassimeris (2016) argues that just as a label used to identify a thing does not make a thing what it is, so too the harm caused by torture does not make a torturer’s conduct morally wrong, it is merely a “moral signpost”. Although, even if harm is indeed a moral signpost there are other signs pointing to the immoral nature of torture. For example, torture is similar to killing in that it involves the causing of pain to a victim, yet killing is permitted at certain times, such as in war, whereas torture is not as it is deemed to be morally worse than killing and an unacceptable part of warfare. Why is this? Shue (1978:130) suggests that the disgust that people feel towards torture can be attributed the fact that it is essentially an assault upon the defenceless and not a “fair fight” as he bluntly states “only losers are tortured”. Unlike killing in war, torture is always intentional, often carried out in a systematic and methodical manner and occurs behind closed doors, away from the battlefield. In this respect, torture violates the laws of war as the asymmetry of power between the torturer and victim, and the lack of a fair fight is in direct contradiction to the jus in bello principle of non-combatant immunity which holds that persons not taking direct part in hostilities are immune to attack (ICRC, 1949). Thus, if the War on Terror is to be understood as a war then it is also subject to the laws of war and to commit torture under these circumstances is to violate the laws of war.

Not only is torture similar to killing in some regards, it is also similar to slavery as Sussman (2005:29) highlights, the aim of interrogational torture is to make the victim a “natural slave” who, whilst retaining enough freedom to see himself as accountable, finds himself to be expressing the will of the torturers by giving in to their demands. Sussman, also compares the forced self-betrayal often caused by torture as being not only akin to slavery but also to rape as both victims of rape and torture often tend to question themselves as to whether they ‘gave in’ too easily (2005:28). Although a torturer may be tasked with torturing a suspect for the purposes of gathering information, human motives cannot be trusted and the torturer may enjoy the brutality of the torture, using it to indulge in sadistic pleasure through humiliation of the victim and control over the victim (Durosaro, 2014:92). There is an abundance of evidence of this sort of activity from torturers within the War on Terror, most famously in Abu Ghraib as pictures from within the prison show smiling torturers with hooded, naked inmates forced to lie on top of one another and masturbate in front of both their captors and other inmates as a form of humiliating, sexual torture (Hersh, 2004). Torture is morally wrong as a direct affront to human dignity and human rights, but just because it is wrong it does not mean that torture may not be useful and therefore justifiable. So although torture is morally wrong, can it be practically justifiable?

Can Torture be Practically Justified?

In attempting to justify not only the use of torture but the War on Terror in general, Western discourse has attempted to portray the West as the good defenders of democracy who may have to get their hands dirty by engaging in immoral activities such as torture to protect fundamental rights from the destructive aims of the evil terrorists (Durosaro, 2014:92). President Bush (2001) blatantly stated this after the 9/11 attacks claiming that terrorists “hate our freedoms”. This justification via the problem of dirty hands essentially claims that in circumstances of “supreme emergency” a government or political leaders may be morally correct in authorising seemingly immoral actions, such as the British bombing campaign against German cities which killed thousands during WWII (Walzer, 2015:250). Yet to use the protection of human rights and democracy as justifications of torture is to undermine the very purpose of human rights and democracy, and the values that they uphold. This distortion of democracy and human rights into the realm of good and evil, as fostered by Western discourse concerning the War on Terror, effectively distorts their essence and compromises their integrity, making them “a basis for selective aggression abroad and an alibi for brutality at home” (Durosaro, 2014:92). This problem of dirty hands underpins the central justification of torture: the ticking time bomb.

The ticking time bomb justification of torture, as first promoted by Bentham, essentially deploys the logic of dirty hands asking the question of whether or not interrogational torture would be justified if the authorities had detained a bomber who had planted a ticking time bomb that has the potential to kill many innocent people and the only way to get him to talk is through torture (Davies, 2012). The ticking time bomb scenario is, at its core, a utilitarian position which argues that harm done to the terrorist through torture outweighs the potential harm that may be caused by the bomb to many innocent people (Frowe, 2011:198). Nonetheless, the ticking time bomb scenario is a weak basis for the justification of torture as it is a hypothetical scenario and highly unlikely to occur in reality. Waldron (2010:219) condemns the ticking time bomb scenario as both “silly” and “corrupt” for attempting to use a far-fetched situation to undermine valid moral positions which are grounded in reality. As well as being hypothetical, the ticking time bomb scenario makes numerous assumptions, including that torture will work, that the terrorist will provide the correct information and that the bomb will be defused in time. However, in reality it is really only guaranteed that torture will make the detainee say something, which may be useful or not useful or may even be as part of a delaying tactic until the bomb goes off, the rest of the ticking time bomb scenario is merely speculation (Frowe, 2011:199). Ramsey (2006:117) highlights that those who would advocate absolute prohibition on the use of torture in the ticking time bomb scenario are condemned as utopian, however, it is utopian and irresponsible to use a hypothetical, ideal scenario to justify torture even if it is seemingly only limited to situations of supreme emergency such as the ticking time bomb.

In the context of the War on Terror, Dershowitz (2004) has championed the ticking time bomb defence advocating for a “torture warrant” so as to effectively provide advanced judicial approval in order to increase accountability in the limited use of interrogational torture, ensuring that it will be used “less often and more carefully”. Dershowitz does not dispute that torture is morally wrong but he maintains that it is a useful tool in the fight against terrorism. This viewpoint is supported by Kassimeris (2016) who argues that the utility of torture as an investigational tool cannot be disputed as although it may be used by lazy investigators, industrious investigators may need it also and therefore public officials should not be condemned for its use. Nevertheless, it is the possibility of torture being used by lazy investigators, as acknowledged by Kassimeris, that leads to slippage. Slippage is the danger of the lowering of the threshold for and the normalisation of torture which will inevitably be a by-product of any sort of legal mechanism, like Dershowitz’s torture warrant, leading to torture being more easily justified (Bellamy, 2006:142). In proposing the torture warrants Dershowitz does not account for the potential of slippage, nor does he account for the inapplicability of a torture warrant to the ticking time bomb scenario, as in such a case there would not be time to apply for a judge’s approval, thus the warrant would only be useful as a retrospective endorsement. Slippage has hugely effected the use of torture in the War on Terror and has proven the unjustifiability of torture.

Terroristic Torture in the War on Terror

Instances of slippage have been seen throughout War on Terror legislation, for example the Patriot Act was introduced to allow increased government surveillance to combat terrorism, but is now being used to spy on ordinary Americans for offences with no relation to terrorism, casting aside their right to privacy (ACLU, 2017). In regards to torture in the War on Terror slippage and the subsequent normalisation has caused torture to shift from interrogational to being primarily of a terroristic nature. Unlike interrogational torture which aims to extract information from the victim, terroristic torture is used for the purpose of punishment and intimidating people other than the victim (Shue, 1978:132). This shift to terroristic torture undermines the ticking time bomb justification of torture in the War on Terror as it only serves to justify interrogational torture. Actions such as the Bush administration authorizing the CIA to establish secret prisons, or ‘black sites’, outside the US provided a platform for the widespread use and normalization of torture (Siems, 2009). The terroristic nature of torture in the War on Terror is also reflected in the attitude of former Vice President Dick Cheney as he claimed that torturing innocent people was “no problem as long as we achieve our objective” (Friedersdorf, 2014). The disregard shown to the innocence of those tortured is in keeping with Shue’s (1978:132) condemnation of terroristic torture as the “purest possible case” of violation of the Kantian principle that no person may be used solely as a means. The slippage of torture into a terroristic nature has removed any logical justification for torture and caused the use of torture in the War on Terror to become unjustifiable.

Despite a lack of logical justification, under President Trump terroristic torture will continue to be used to combat terror as he has claimed that torture “absolutely” works and that the US should “fight fire with fire” (Weaver & Ackerman, 2017). To fight terror with terror is extremely ineffective as was demonstrated in Northern Ireland when the British attempt to regulate the use of torture through the implementation of Diplock courts which had the adverse effect of promoting wider abuse of a terroristic nature such as the shoot to kill policy adopted by the army which consequently increased violent resistance (Kennedy-Pipe & Mumford, 2009:65). The use of terroristic torture causes victims and their communities to feel exploited and fosters outrage which often proves stronger than the fear of suffering at the hands of the torturers (Shue, 1978:139). The resistance cultivated by the torture in the War on Terror has directly manifested in the rise of ISIS, in which torture played a crucial role as the organisation emerged from the disastrous Iraq war which was justified on the basis of false information provided by Ibn al-Shaykh al-Libi who crucially linked Saddam Hussein to al-Qaeda after being tortured (Verkaik, 2017). Therefore, torture in the War on Terror is not only unjustified due to a lack of logical justification but is also severely detrimental to the chances of success in the War on Terror.

The extent to which torture has been unjust, illogical and ineffective in the War on Terror is a testament to the importance of maintaining an absolute prohibition of torture. An absolute prohibition of torture, especially torture of a terroristic nature, is essential to achieving success in combating terror and preserving democratic integrity. Certainly, as Ambos (2008:261) highlights, in high pressure situations where human life is at risk an absolute ban places an unfair burden upon security personnel to not use torture to avert the risk, but in these rare cases there is a valid excuse, not a valid justification. This excuse must not be legally sanctioned but rather should be seen as “civil official disobedience” on the part of the individual torturer (Durosaro, 2014:93). Where torture has become primarily terroristic and slippage has occurred, as in the War on Terror, then it is not the individual torturers which must be held to account but those high-ranking officials who have sanctioned the torture. In the US, though, it is unlikely that politicians or high-ranking officials will be prosecuted and even those low-ranking officials who are prosecuted for torture related activity tend to only be court-marshalled and receive non-judicial or administrative sentences (Ramsey, 2006:109). Prosecution of those responsible for the sanctioning of torture via the strict enforcement of international law “would reassert the salutary vigour of a taboo essential to a democratic nation” (Fried & Fried, 2010:164). It is highly unlikely that a government using torture would prosecute those who sanction torture domestically, therefore it is essential that international institutions preserve absolute prohibition by prosecuting, pursuing and pressurising those leaders of governments who permit the violation of international law by sanctioning torture.

Conclusion

Torture is not justifiable in the War on Terror as it is morally wrong and a violation of fundamental rights. Though there may have been cases in which torture has been successful, in the vast majority of cases it has failed and it most certainly has never been successful in a case involving a ticking bomb (Bellamy, 2006:124). The ticking time bomb defence has been shown to be incapable of justifying torture and inapplicable to the War on Terror due to slippage caused by authorization of torture which prompted the emergence of torture of a primarily terroristic nature. The ‘legal’ sanctioning of torture only serves to open a Pandora’s box as to make rules authorizing torture legitimizes and normalizes the act of torture consequently concealing its true evil (Onuf, 2009:25). In the fight against terrorism a democracy must resist measures such as torture which may become terroristic tactics. Indeed, Justice Barak of the Israeli Supreme Court (1999) was correct in asserting that “a democracy must fight with one hand tied behind its back” when fighting against terrorism as to unleash the other hand and engage in acts such as torture undermines the fundamental rights which liberal democratic societies claim to uphold. Fighting terror with terror by engaging in torture cannot be part of a successful War on Terror and clearly exposes the unjustifiability of torture.

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