Sunday, 16 September 2012

Can The Torture of Terrorist Subjects Really Be Justified? -- By Guest Blogger Harry Mill

Guest Blogger Harry Mill explores the question of justifiable torture.

This work seeks to answer the question whether the torture of terrorist subjects can really be justified. It is clear that a number of persuasive arguments present themselves on either side of the debate; however it is the belief of this work that to an extent, the torture of terrorist subjects can be justified but only morally, never legally. In dealing with this question of morality, the work will focus on the deontological argument versus the consequentialist, also known as the utilitarian argument, supporting aspects of the consequentialist argument. This work will seek to analyse the question through three defined areas; the legality of torture, the morality of torture and the results of torture. Finally this work will conclude its evaluation regarding the justification of the torture of terrorist subjects.

The debate regarding the justification of torture is not new, however it has been thrust forward into public consciousness in the last decade due to the ongoing War on Terror, the campaign waged by the United States and its international allies against terrorist groups and non state actors that support terrorist activities and seek to cause harm to those opposed to their cause. It is worth noting that for this essay, it is the role of the US and not its allies that will be analysed, with the actions of post 9/11 America and in particular the actions carried out at Guantanamo Bay in Cuba and at Abu Ghraib Prison in Iraq. The War on Terror has been a conflict of selective interest, with key figures amongst the American administration at the centre of this debate on whether the torture of terrorist subjects can really be justified. Dick Cheney left no allusion to this; ‘it’s going to be vital ... to use any means at our disposal, basically, to achieve our objective [and to] work through...the dark side’ (Evangelista, 2009, p. 59).

In analysing whether the torture of terrorist subjects really can be justified, it is necessary to first define some key terms. For the purpose of this work, ‘torture’ will be defined as ‘any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted upon 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, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity (United Nations, 1984). This is the definition that is used in the 1984 United Nations Convention against Torture. For the purpose of this work, morality will be seen as the principles concerning the distinction between good and bad as well as right and wrong. Finally, when referring to results, it will be taken that this refers to the outcomes and responses taken against actions that have results. With these having been established, it is now necessary to move onto the first part of the argument that supports the statement of this work, that the torture of terrorist subjects can to a certain extent be morally justified but not legally.

The Legality of Torture

Torture in all its forms is illegal. As Duffy clearly states ‘Torture, properly understood, is prohibited absolutely, and states are obliged, inter alia, to prosecute those responsible’ (Duffy, 2005, p. 354). Both domestically and internationally there is no grey area in which torture, whether by state or individual has any legal place. The UN Convention Against Torture bluntly states this (United Nations, 1985). Since the beginning of the War on Terror, in the days governed by fear and dominated by the need to response in any way to the catastrophic attacks, the Bush Administration has welcomed and acted upon a serious of memorandums and sets of legal advice from the Office of Legal Council (OLC) that have flown in the face of this absolute ban on torture, by seeking to circumvent legality by narrowing the definitions of torture.
 The infamous ‘Torture Memo’ (Goldsmith, 2007) put forward by John Yoo of the OLC in 2002 in particular sought to redefine torture. It stated that ‘the threshold for torture “must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily functions or even death” (Ignatieff, 2006). Indeed anything below this was considered only coercive interrogation although by law this should have been considered torture, rather than the warped idea of ‘torture lite’ (Ignatieff, 2006). Jack Goldsmith, then Assistant Attorney General at the OLC commented that this memo gave those torturing individuals at Guantanamo Bay the idea that ‘violent acts aren’t necessarily torture; if you do torture, you probably have a defense; and if you don’t have a defense, the torture law doesn’t apply to you if you act under colour of presidential authority’ (Goldsmith, 2007). It was crucial that this abuse of the law, from the top down, in trying to justify the torture of terrorist subjects be framed in a certain way to give comfort to those breaking this moral and legal code. Phillipe Sands reminds us however that regardless of your position, Prime Minister or President, no one is above the law (Sands, 2005) no matter the mitigating circumstances. The efforts by the Department of Defense in a 2003 memo stated that President Bush was not bound by any international treaties or federal laws that prohibited torture, and that it was not prevented by constitutional law (Harris, 2004), are indicative of this attempt by the US to oppose this.

This abuse of the law by executive members of the Bush Administration, carried on by members of the Obama administration indicates the level of contempt the US holds for the international community. Indeed the US used Saddam Hussein’s use of torture as part of its reason to invade Iraq in 2003, exclaiming its duty to protect the human rights of others, while it sanctioned illegal torture itself (Sands, 2008). The attempt to use the War on Terror as some kind of special circumstance, and the efforts by Jay Bybee and John Yoo of the OLC in carefully wording certain memo’s are key to this understanding. The abuses of detainees, at Guantanamo and at Abu Ghraib flys in the face of military law, even though there remain those in the US military who carry out such actions. FM 34-52 provides strict parameters through which interrogations can be conducted. The 2002 memo, signed by Secretary for Defense Rumsfled, suddenly granted new levels of interrogation such as the infamous Waterboarding techniques and physical beatings. 
Heather MacDonald offers up a ‘bottom-up’ assessment of crucial and sadistic torture at Abu Ghraib. She claims that it was the inadequacy and frustration of the military prison guards that led to the torture and humiliation of detainees rather than the more widely accepted ‘top-down’ approach of supporting torture through dubious and narrowly defined legal statements from the OLC (Evangelista, 2009).  It has since become apparent that whilst MacDonald’s claim of frustration contributed to the scale of abuse, it is clear that a policy of institutionalised torture was creeping through the US military and intelligence services, at Guantanamo Bay and at Abu Ghraib. The extent of the involvement of senior executive members of the White House, such as Rumsfeld, was seen through the previously mentioned ‘torture memo’ (Evangelista, 2009). Evidence of this is not only damning but worrying, in the obvious belief by Bush and Rumsefld that the torture of terrorist subjects was not only justified morally, but also legally. As Alfred W. McCoy comments, ‘when Defense Secretary Donald Rumsfeld interjected that there were legal restraints on such action [torture], the President shouted back, ‘I don’t care what the international lawyers say, we are going to kick some ass’ (McCoy, 2006, p. 113). Another clear example was the torture of Abu Zubayah, a detained Al Qaeda member who was believed to have actionable intelligence regarding further attacks against the US. It is worth nothing however that the best information that was extracted from Zubayah came not from the CIA – the main propagators of torture. The FBI, which arguably remained opposed to the policies of torture alongside most of the military, extracted the intelligence through standard FBI interrogation, using tried and tested interrogation techniques as opposed to torture, or coercive interrogation as some might legally try to argue. This is a theme that will be addressed further later on with regards to the results of torture. It is worth nothing that ‘with the military and the FBI, much opposition [to the practices of torture] was based on moral revulsion and reluctance to break the law’ (Evangelista, 2009, p. 81).

Many have questioned the decisions made by the US administrations in detaining and torturing individuals at Guantanamo Bay and at Abu Ghraib in Cuba and Iraq respectively. The reason for doing so is clear; it removes the individual from US territory and therefore removes the law and rights which apply to those on US soil (Steyn, 2004). The extraordinary rendition and the thinking behind the decision indicates the lengths that the US will go to in trying to avoid international law, and the effort it has put into breaking international law. While torture is one thing, the positioning of individuals in areas where torture has a better chance of avoiding prosecution indicates the level of responsibility(Raustiala, 2009), and once again indicates the top down approach to torture that is central to the US War on Terror.
There remains a key question that these adapted aspects of US law have tried to address; at what point does interrogation stop and torture begins? By wording the 2002 torture memo and the 2003 memo giving powers to use increased methods of ‘coercive interrogation’ (Ignatieff, 2006) specifically, it is clear that the US sees the idea of coercive interrogation (torture to the rest of the world) as legally acceptable. It is of course, still in complete violation of the UN Convention against Torture, and in most cases the Geneva Convention (Roberts, 2007). Britain and Israel were charged with degrading and inhuman treatment of detainees but not of torture indicating that there is a practical difference between the two. Thus there must be a moral acceptance of coercive interrogation that does not cross any legal or moral boundary. It is the fact that torture is so narrowly defined by the US in its delineation of the end of coercive interrogation and the start of torture that is its undoing. It offers such an expansive array of actions in coercive torture that other nations can only see it as torture. Had it perhaps, added further legal safeguards, more than just the agreement of the Secretarty of Defense then there is a remote possibility that the broader definitions of torture, and the narrower definitions of coercive interrogation may have resulted in both a moral and legal acceptance on the international stage. This remains a remote idea. Further issues arise, as Tom Parker states, in that interrogators cannot be trusted to heed the distinction between coercive interrogation and torture (Anonymous, 2010). So far, this work has seen evidence that the torture of terrorist subjects is illegal regardless of the moves made by the Bush Administration with the basis of this answer having been legally addressed. It is now necessary to move onto the morality of torture in continuing the evaluation and support of the statement of this work, that the torture of terrorist subjects can be morally justified to a certain extent, but never legally justified.

The Morality of Torture

The morality of torture is much debated and rightly so. As this work has already accepted in accordance with international law, torture is illegal. There remains a difference between legality and morality, and it is this which is key in assessing whether the torture of terrorist subjects really can be justified. When asked initially, whether torture is right or wrong, the majority of people would say it is wrong, indeed it is for many ‘the deepest and most fundamental liberal taboo’ (Ramsay, 2006, p. 103). But when represented with the most common of arguments, the ‘ticking bomb scenario’ the majority would suddenly accept that, in a specific situation, torture may be morally acceptable. Some have descried this situational ethic as morality by numbers; pain for one, but safety for the majority.

Three main camps lie in this moral discussion between the deontological and consequentialist arguments. First there is the absolutist, or deontological, position – that under no circumstances can torture ever be committed, and it is both legally and morally wrong, in all aspects. A supporter of this camp is Dr. Mary Strauss (Galipeau, 2005). Her argument is founded on four key understandings; ‘the inefficacy of torture, alternative investigative techniques, the negative impact of torture use on society, and the likelihood of increased resort to torture’ (Galipeau, 2005, p. 5). Another keen supporter of this is Maureen Ramsay, who comments that ‘this absolute ban reflects the Kantian idea that there are acts which are wrong in themselves regardless of any good consequences’ (Ramsay, 2011, p. 627). For many, this seems morally untenable, as it offers no exceptional circumstances under which torture may be conducted, such as the ‘ticking bomb’ scenario. It also seems less realistic and more of a liberal ideal. There is no doubting that torture, although illegal exists in the world. While rather blunt, there is the argument that as several nations use it, it must be effective on some occasions, if not effective on all, however morally dubious it is.
Secondly, introducing the consequentialist arguments, there is the concept of ‘Torture Warrants’ as put forward by Alan Derschowitz (Dershowitz, 2002).  Dershowitz advocates the idea that while torture remains illegal and morally questionable, there is a greater moral duty to those who might be saved through information gained under torture. In making this acceptable, and in pursuit of minimising the amount of torture used, he suggests that ‘Torture Warrants’ may be obtained by legal consent in extreme circumstances. These are supposed to bring a certain level of not only justification to torture, but to also add a level of transparency and accountability to these proceedings. He claims that ‘it is better to control and regulate torture with accountability, record keeping, standards and limits, than to denounce torture but to tolerate extra-legal actions’ (Ramsay, 2006, p.108) Judge Richard Posner is a supporter of this idea, citing the idea of a ticking nuclear bomb in Times Square as the scenario when it is almost an individual’s responsibility to torture someone if there is the hope of stopping the device (Anonymous, 2010). All that happens however is that the decision to cross the moral and legal boundaries is taken out of the hands of the torturer and placed in the hands of a judge, which morally distances the torturer from the act. The concept of a priori approval is worrying as it creates a climate of moral acceptance in the case of torture (Ramsay, 2006). This is the start of a slide towards institutionalised and politically and legally ratified torture, and as David Cole states, the torture of the few leads to the torture of the many and in doing this, ‘you end up going down a slippery slope and sanctioning torture in general’ (McCoy, 2006, p.195).

Finally, there is the concept of Walzer’s ‘Dirty Hands’ (Walzer, 1973). Based on Machiavellian ethics, it is the idea that the lesser moral evil can be put aside to combat a greater moral evil (De Wijze, 2006). Key to this concept is that at no point is torture legalised or sanctioned in any way. It is up to an individual, Walzer’s Tragic Hero, to take it upon them to go above and beyond the call of moral duty. Oren Gross, a key supporter of this concept refers to this as pragmatic absolutism and official disobedience (Galipeau, 2005). Gross argues, a view supported by this work, that unlike Dershowitz’s concept of a conditional ban, there must be absolute ban on torture legally, and it is the only correct moral and legal course (Galipeau, 2005). He supports the idea that in some cases the final resort may be defensible, the concept of pragmatic absolutism, and this as a result of this government officials may find it necessary to break the law, the concept of official disobedience (Galipeau, 2005). This is done so in the knowledge that this is unlawful, but in the hope that a level of acceptance may follow, and the Tragic Hero may find some reprieve. This concept recognises the illegality of torture, recognises the moral dilemma of torture, and indeed supports the view that torture is morally wrong, yet it also keeps open a loophole of moral values that there may be a greater moral evil than torture – the mass murder of innocents. By relying on ex post justification, there is no passing of the moral responsibility onto a legal figure such as a judge – it remains on the conscience of the individual who conducted the official disobedience and became Walzer’s Tragic Hero with ‘dirty hands’. Gross states that ‘the public official is required to balance the absolute ban on torture against the perceived need to take extralegal action in order to prevent the catastrophic event (Galipeau, 2005, p.11).
Ramsay, in the discussion of Walzer, argues that while the ends may justify the means in that it has achieved some good, in this case a level of information that prevents a future deadly terrorist attack, it is still morally wrong (Ramsay, 2006). Ramsay then goes on to discuss Walzer’s Machiavellian and Weberian types of individual, noting that the colder Machiavellian ‘simply throws away morality for the good results that will be achieved’ (Ramsey, 2006, p.111), whereas the Weberian political actor is ‘a tragic hero, who is horribly aware that he is doing bad in order to achieve good and that in doing so he surrenders his soul’ (Ramsay, 2006, p.111). It is this moral calculation, deciding whether one accepts the moral consequences or ignore them, that separates the two and is critical in understanding whether there is any justification in the torture of terrorist subjects. It seems that once you have passed a boundary, whether it is legal or moral, there is no turning back,. It falls to an individual to provide the ends, which justify the means, and then it is up to this individual, Walzer’s Tragic Hero (Ramsay, 2006) to shoulder the moral weight of their own actions. There is a real risk that in turning from legal limits and relying on moral ones, that torture may become institutionalised. The reliance upon one political actor to cross the line and to act illegally, immorally but for a greater good is an excellent way for an institution to use torture but wash its hands of the act itself; to remain in support of torture as an illegal activity, but to turn a blind eye in bringing those amongst its ranks to justice in perpetrating the actual act of torturing someone (Ramsay, 2006).

While there is general acceptance that torture is morally repugnant, it is also clear that moral choices involving the lives of others, innocents, are able to balance out the morality of the torturers actions. As this work has previously stated, there is no legal justification for the torture of terrorist subjects. There is however an excellent case as presented by Walzer for the moral acceptance of torture as justification of terrorist subjects, if it prevents greater evil. The arguments denouncement of torture, support of its illegality, and notion of official disobedience is what separates it from the other consequentialist argument put forward by Dershowitz and which debunks the out dated moral absolutism put forward by Strauss and Ramsay.  It is this argument that provides the basis of the answer and the weight behind the statement of this work, that the torture of terrorist subject can be to an extent morally justified, but never legally. This work must now look at the final aspect of deciding whether the torture of terrorist subjects can really be justified; the results that torture, or the lack of, presents.

The Results of Torture
Having previously looked at both the legality and morality that surrounds the debate regarding torture, and in particular whether the torture of terrorist subject can really be justified, it is now necessary to look at the results of torture. Rather than providing the US with a wealth of actionable intelligence, there have been little clear gains or major plots averted thanks to the use of illegal torture, and the sacrifice of moral values (Anonymous, 2010). Other than this however, there are other negative results of torture. There are two main areas of this within the confines of torture results; the intelligence gained through torture and its use, and the international and strategic consequence of torture that the US then has to cope with.
Investigating the intelligence procured under torture, there are a number of worrying results that indicate that there is little justification in torturing terrorist subjects. It is this lack of information obtained and the criticism of many regarding the use of torture that signals most of all the unnecessary use of torture. FM 34-52, the US Army’s interrogation manual is blunt in its evaluation of torture or coercive interrogation; ‘the use of force is a poor technique, as it yields unreliable results, may damage subsequent collection efforts, and can induce the source to say whatever he thinks the interrogator wants to hear’ (Sands, 2005, p.209).
There is evidence which strongly supports the belief that torture brings about little in the way of actionable intelligence and material and which therefore undermines the argument that there is a justification in torturing terrorist subjects. A former high level CIA operator stated that ‘ninety percent of the information was unreliable’ (Evangelista, 2009, p. 83) when asked about the information extracted under torture. US journalist Ron Susskind reported that ‘the best information that came out of the captive may have resulted from nonviolent methods of interrogation’ (Evangelista, 2009, p. 85) a position that was supported by a 325 page report by the US Intelligence Science Board in 2006 (Evangelista, 2009). This is also supported by the findings of the US military with regard to the information gathered from detainees. Chris Miller, whose operated during the initial days of Operation Enduring Freedom stated that ‘one of our biggest successes in Afghanistan…came when a valuable prisoner decided to cooperate not because he had been abused…but precisely because he realized he would not be tortured’ (Galipeau, 2005, p. 5). 

Worryingly, it is not certain that each time the US tortures someone they are torturing a terrorist. This level of uncertainty should not be left to one side. Instead it should be a critical factor in the evaluation of torture as unjust. The torture of an innocent individual who happens to have been in the wrong place at the wrong time, by a state that is hell bend on seeing results and extracting a level of revenge on its enemies  is a huge miscarriage of justice. General Richard B. Myers, then the Chairman of the Joint Chiefs of Staff stated with regard to the initial detainees that were sent to Guantanamo Bay, that ‘these are people who would gnaw through hydraulic lines at the back of a C-17 (aircraft) to bring it down’ (Chatterjee, 2011), however it has been proved that this is not always the case. Indeed Chatterjee goes on to state that ‘almost one in five’ (Chatterjee, 2011) at Guantanamo Bay had no connection to terrorism.

This ever present fear of mistaken identity, that an innocent man may be tortured simply as he has the same name as a target should be more central to policy decisions. the decision to pay for supposed members of the Taliban and al Qaeda led to many local men being old to the US for cash (Ramsay, 2006). Likewise there is the issue that evidence obtained under duress, such as torture, is not permissible in Civilian Courts. This has led to a worrying rise in the US of using Military Tribunals to try and commit detainees.
Secondly, is it necessary to take into account how far reaching the acts of torture have upon the US. By committing morally repugnant acts such as torture, regardless of the situation, it is almost guaranteed that the US will polarise its support, domestically and internationally. For each nation that supports the actions, another will oppose them. This weakens the international standing of the US, undermining alliances, partnerships and willingness to aid the US. It is also seen as a rally call to those who would combat the US such as foreign fighters supporting the Taliban in Afghanistan – it aids the propaganda machine of those it wishes to fight in the War on Terror (Roberts, 2007). As Ramsay states, revelations of torture and systematic ill-treatment of prisoners have intensified the crisis in American relations with the Muslim world and acted as a rallying cry to a new generation of terrorist (Ramsay, 2006, p.113). It also goes a way to strengthen the resolve of the extremists. While initially, it may seem that through torture, the US can gain the upper hand, in the long run it may ultimately be its undoing (Ramsay, 2006). Domestic support for the Bush Administration plummeted, and support for the Obama Administration has taken a hit regarding the continued illegal torture of detainees at Guantanamo Bay and Iraq. Ultimately, with failing support, and the growing resolve of extremists against the acts perpetrated by the US, there is a risk that consequentially, these prove to be counterproductive acts.
Put bluntly, there is little that favours torture as a campaign winning pro-security move. It benefits the opposition too much, radicalising nations and groups arrayed against the US (Anonymous, 2010), risks repayment in kind against US forces and civilians, has proved ineffective against the resolve of extremists, and has tainted or provided falsehoods in any information extracted (Anonymous, 2010). Time and again, traditional interrogation, and ultimately empty threats of torture, have, as previously shown, given the US the information it needs without crossing any legal or moral boundary.

There is no doubting that the War on Terror is different to any previous conflict. This however does not ultimately pardon the US Administration which have perpetrated illegal torture and detainment of individuals, guilty or not. This work has stated throughout, in response to the question of whether the torture of terrorist subjects can be justified, that while the torture of terrorist subjects can be morally justified to an extent, there is no legal justification. This work has used evaluations of legal, moral and resulting arguments in order to provide a basis for this answer. Evaluation of the results and resulting actions that have affected the US also support the argument against justification of torture. Indeed, this work does not support the torture of terrorist subjects, but it must be made clear that a position of moral absolutism is not the way forward. It is necessary in this contemporary climate to be prepared to commit official disobedience (Galipeau, 2005), to carry out the unpalatable acts of torture in order to support a greater moral standing and duty to the cause. There may be no long term gains, and as always, torture remains illegal, but there must be an acceptance that rarely, an individual must perform the unacceptable, in order to support the greater good.

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