Is The Use Of Torture Under Any Circumstances Justified?
‘Torture anywhere is an affront to human dignity everywhere’ – George Bush in 2003.
In the present era of global conflict and terrorism, civil liberties and fundamental rights have been put into jeopardy as nation states have developed means of jettisoning rule of law by introducing anti-terrorism legislation. The pretexts such as “doctrine of necessity” or special measures for special times have often been cited to justify any deviation from these established sets of legal norms and values. There has been much debate regarding the use of torture on terrorist suspects as means of extracting information. This paper shall examine the arguments both in favor of and against the use of torture.
If we look at torture in its historical contexts, it has been widely practiced throughout the annals of history with its origins dating back to 530 AD when the Roman jurists espoused the virtues of torture as “the highest form of truth”. This view might have had some relevance in those dark ages but in the contemporary world, such views are difficult to sustain. The world was a witness to the barbarism and savagery which was unleashed during the world wars and there was a commitment made by the comity of nations not to repeat the same mistakes.
There were still some voices in favor of summary executions and punishments without trial. For instance Stalin’s chief prosecutor, Andrei Vyshinsky once suggested during one of the 1938 trials in Moscow ‘we can do it just as well without a trial.” Similarly US Treasury Secretary Hans Morgenthau Jr suggested annihilation of all members of the Nazi party and when told that the number would be around 13 million, he refuted this as an exaggeration, claiming there were only “five million”. This depicted the remnants of the pre- war mindset which focused on victor’s justice, arrogance, revenge and desire to eliminate the ‘bad guys’. Stalin was also said to have had “simplified” the judicial system by expanding death penalty to cover hundreds of offences, eliminating right to defense, secret trials and suppressing the right to appeal. But then thankfully there were people like Harry Truman, albeit a bleak minority who insisted on true due process of law. The Supreme Court Justice Robert H Jackson took a leave of absence to be appointed as chief prosecutor to ensure that justice is not only done but manifestly seen to be done as well. Mr. Jackson then propounded “undiscriminating executions or punishments without definite findings of guilt, fairly arrived at, would…. not sit easily well on the American conscience or be remembered by our children with pride.’
So the problem is the same, i.e. how to deal with the ‘bad guys’ but the set of solutions we may take will have differing consequences. Whether precedence is to be given to speedy trials or due process of law? Whether we are willing to allow a 100 guilty go free than punishing an innocent man or torturing a terrorist suspect in a ‘ticking time bomb’ hypothetical scenario to save millions of innocent lives? These are the questions which need to be addressed to help us make our choices.
The fundamental values and human rights for which the US once stood for, the American conscience which Justice Jackson spoke of and the due process which President Harry Truman ardently advocated were all jettisoned post atrocities of September 11th 2001 where policy decisions were taken as a knee jerk reaction, in paranoia, to fulfill the desire to seek revenge in an attempt to make United States of America safer by launching a manhunt on global terrorists. As President George W. Bush said at a press conference held jointly with Prime Minister Tony Blair on 17 July 2003 and I quote, “the only thing I know for certain is that these are bad people…’ The entire humanity was brought into shame when the photographs of the abuse taking place at Abu Ghraib were shown on CBS’s ’60 Minutes’ and shared widely on media across the world. Numerous reports of torture being committed on Guantanamo detainees have surfaced, the most recent one being the Report by US Senate Committee on Intelligence released on 9th December, 2014 which mentions the use of “Enhanced Interrogation Techniques” by the CIA on detainees.
It is pertinent here to address both the legality and effectiveness of torture as a means of interrogation. Torture has been outlawed in the constitutions of almost every country in the world and is a norm jus cogens in international law. The UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment and Punishment (1984) has 158 state parties, providing an absolute ban on torture and there being ‘no exceptional circumstances whatsoever’ which warrant its use. The 1949 Geneva Conventions also outlaw ‘mutilation, cruel treatment’ and ‘outrages upon personal dignity’.
However in the aftermath of the events of 9-11 and the global threat which terrorism poses, a polarized debate has been ignited on whether torture should be allowed in some exceptional circumstances for instance the oft-cited ‘ticking time bomb’ scenario. The very definition of what constitutes ‘torture’ was made so ambiguous by a team of Justice Department lawyers as to include physical pain ‘equal in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily functions, or even death.’ It is also argued that the Geneva Conventions essentially apply to non-combatant citizens and uniformed soldiers made prisoners of war, and whether it should be extended to terrorist suspects is still disputed.
The proponents of use of torture against the suspects conveniently rely on the ‘ticking time bomb’ hypothesis, but the question is can a policy be based on a mere hypothetical situation, especially one which puts the very ‘conscience’ of a nation into question. Is there even a single example in the contemporary history where a ticking time bomb scenario has actually arisen? Even if it is accepted that such a situation may arise, torture once allowed at one place is difficult or rather impossible to contain. The barbaric practices used at Guantanamo migrated to Abu Ghraib and included sleep deprivation, force-feeding, solitary-confinement, nudity, electrocution, rectal-feeding and water-boarding- all of this to break the detainees, to exert complete control over their person, souls, instincts and reflex actions, rendering complete abolition of their agency and reducing them into ‘sub-human’. A team of psychologists came up with new techniques of ‘breaking’ these individuals through psychological disorientation.
These violations of fundamental rights have blurred the distinction between the terrorists and governments who use torture as a strategy to fight terrorism; whatever happened in Abu Ghraib during Saddam Hussain was repeated by the Americans. In order to win a greater war, where psychological warfare is used as a key strategy, one has to have a strong moral standing. Hence the use of torture is not only a moral wrong but also an impediment in winning a greater war against global terrorism.
There is no question as to illegality of torture as it has clearly been prohibited in all international treaties, conventions and instruments, leaving no room for any justifications whatsoever. In terms of its effectiveness, there have been instances where even the most hard-core terrorists have made confessions, Khalid Sheikh Muhammad for instance could not take water-boarding for more than two and a half minutes and begged to confess. But is such a confession or information extracted by use of torture even reliable in the first place? When you break a person and his will, he will say exactly what you want him to say. A prime example of the ineffectiveness of torture as means of interrogation is the falsity of confession made by Ibn Sheikh al-Libi, an Al Qaeda suspect who revealed a link between Saddam Hussain and Al-Qaida which eventually led to the conquest of Iraq on the pretext of the Iraqi regime building ‘weapons of mass destruction.’ This was later proven untrue as no such weapons were found.
One thing is common amongst all those who condone use of torture as a means of interrogation, they all use extreme case scenarios to make their point without realizing that once an exception is created, there would inevitably be ‘bad apples’ who will abuse the power vested in them. Another problem is that of the culture of impunity which exists and prevails, no one has ever been convicted or punished for torture. No regime is willing to set detailed rules governing accountability and transparency of the interrogation process, what if the detainee in the hypothetical ticking time bomb scenario having valuable information is innocent? Will the governments be willing to punish the interrogators who are given the permission to use torture in such rare and limited circumstances?
The 2014 US Senate Select Committee Report on Intelligence revealed in its findings and conclusions that the CIA had rested on inaccurate claims of effectiveness and essentially impeded oversight by the Congress and White House. There were many instances of mistaken identities and detention of individuals who did not meet the legal standard for detention, of the 119 known detainees, at least 26 were wrongfully held and did not meet the detention standard in the September 2001 Memorandum of Notification (MON). The Report also reveals that at least 17 detainees were subjected to enhanced interrogation techniques without authorization from the CIA headquarters and corrective action was rarely taken against those involved. The Report also refutes the CIA claims with regard to effectiveness of these techniques and reviewed 20 of the most frequent and prominent examples of purported counter-terrorism successes attributed by CIA to the use of these techniques and found them to be fundamentally flawed. The Report concludes that either the information was merely corroborative of the information already available or was acquired from the detainee prior to the use of these techniques.
In light of the findings of the US Senate Committee on Intelligence as well as the thorough analysis of policy-makers and think tanks world-wide it can be rightly concluded that torture is not acceptable by any moral calculus whatsoever and not only is it unlawful but also ineffective. It also helps feeding the terrorist agenda which breeds on hatred against the West and in order to win this greater war countries must stand united and adopt a comprehensive strategy to eradicate the menace of terrorism and extremism without having to compromise their moral standing. Lastly the price of jettisoning rule of law is a fairly high one and short-term successes can inevitably lead to long term repercussions. It is the right time to decide which model we want to follow in order to fight terrorism- Stalin’s justice or Harry Truman’s ‘rule of law’ model?
James Ross, ‘A History of Torture’, Torture: A Human Rights Perspective (Human Rights Watch, 2005), p. 4; See Roman Digests, De Quaestionibus ‘On Torture’ Book 48, Chapter 18.
 Article 2, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
 Common Article 3 of all 4 Geneva Conventions
The views expressed in this article are those of the author and do not necessarily represent the views of any organization with which she might be associated.