The Ethics of Torture
Summary and Keywords
Torture has recently become the focus of renewed scholarly attention, including a philosophical and political debate about whether torture is ever justified. The basic parameters of the debate revolve around the question whether there should be an absolute prohibition against torture or whether it is a lesser evil to torture a suspect for information to prevent a greater evil that menaces society. Historically, torture was not only common in times of war and social upheaval, but it was also openly practiced in many societies as an integral part of the judicial system. It was seen as an effective technique for obtaining “true” information as well as an appropriate punishment for the immoral and a useful deterrent against future misconduct. Both democratic and nondemocratic forms of government engage in ill-treatment and torture, but the existence of liberal democratic institutions reduces the incidence of torture. Since 9/11, there has been considerable debate over state use of torture, as some scholars have suggested that there is a profound shift in attitudes toward torture following the 9/11 attacks. Numerous works have provided detailed analyses and documentary evidence of the Bush administration’s incarceration and interrogation policies in the war on terror. Critics of torture charge that it is immoral because it involves the inhumane treatment of human beings. On the other hand, a number of scholars have argued that individual acts of torture by state officials are warranted in extreme situations.
Once accepted as a legitimate judicial practice, torture has come to be widely condemned as unacceptable. The atrocities of World War II led the framers of the 1948 Universal Declaration of Human Rights to include a prohibition against torture, stipulating in unqualified terms that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” (Article 5). Similarly, the Geneva Conventions, which were expanded and revised in 1949, not only provided protection for prisoners of war and civilians but also banned the use of torture and cruelty against “unlawful” combatants as “outrages against personal dignity” (Fourth Geneva Convention, Article 3). Since that time, various international conventions have made the ban on torture an absolute moral imperative, assigning it the status of a peremptory norm (jus cogens) that is binding on all states, whether they have ratified a particular treaty or not. The 1966 International Covenant on Civil and Political Rights prohibited torture even “during public emergencies that threaten the life of the nation” (Articles 4 and 7). Similarly, the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment insisted that “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture” (Article 2). In 1998 the International Criminal Tribunal for Yugoslavia ruled in the case of the Prosecutor v. Anto Furundzija that the jus cogens value of the prohibition against torture meant that national measures authorizing or condoning torture or absolving perpetrators through amnesty laws are impermissible; furthermore, the court ruled that every state is entitled to investigate, prosecute, and punish or extradite individuals accused of torture who are present in a territory under its jurisdiction (de Wet 2004:98). This ruling was upheld in the landmark Pinochet case, in which the British House of Lords divested former Chilean dictator Augusto Pinochet of his sovereign immunity and ruled that even heads of state can be held accountable for violating crimes against humanity, including the prohibition against torture.
Yet just as considerations of political expediency led the British government to allow General Pinochet to return to Chile rather than be extradited to Spain to stand trial, governments and international courts have not consistently upheld the prohibition against torture. In the case of Sulaiman Al-Adsani, a dual British-Kuwaiti national who sued the Kuwaiti government for damages resulting from alleged torture, the European Court for Human Rights ruled that the torture survivor could not sue Kuwait for compensation because foreign states benefit from immunity as to alleged acts of torture committed in their own territory (Bianchi 2008:501). Moreover, torture continues to be practiced by many countries throughout the world, including leading democracies. As of 2011, 147 countries have ratified the Convention Against Torture, but torture or other ill-treatment was documented in 98 countries (Amnesty International 2011). Few countries openly acknowledge employing such practices, resorting to a variety of strategies to circumvent the legal prohibition against torture, including denials that given treatments constitute torture, plausible deniability, and torture by proxy. For example, though the George W. Bush administration denied using torture against detainees in the “war on terror” launched after September 11, 2001, others argue that the US government authorized and systematically employed techniques that amount to torture. As a result, torture has recently become the focus of renewed scholarly attention, including a philosophical and political debate whether torture is ever justified. The basic parameters of the debate revolve around the question whether there should be an absolute prohibition against torture or whether, under carefully specified circumstances, it is a lesser evil to torture a suspect for information to prevent a greater evil that menaces society. This review essay begins with a discussion of the ambiguities inherent in the modern definition of torture. It goes on to examine the history of torture and then summarizes recent scholarship on the effectiveness of international agreements banning torture. Following a discussion of the controversy over interrogation methods in the war on terror, the essay analyzes the debate over the ethics of torture. The essay concludes with a review of recent scholarship that questions whether the norm against torture has lost its effectiveness.
The Definition of Torture
The UN Convention Against Torture defines torture as “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, 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. It does not include pain or suffering arising only from, inherent in, or incidental to lawful sanctions” (Article 1). In other words, according to international law, torture is the intentional infliction of intense suffering aimed at forcing someone to reveal information, punishing unwanted behavior or inspiring fear in a broader population. While this legal definition focuses on the involvement of states and their agents rather than cruelty committed by private citizens, scholars have noted that illegal organizations, such as the mafia or guerrilla armies, are also capable of torture (Davis 2005:163).
Like many legal formulas, the definition of torture is sufficiently vague as to permit varied interpretations. Given the stigma attached to torture, governments have carefully parsed the language with which they describe interrogation techniques, using euphemisms and narrow legal interpretations to differentiate between their methods and torture. Governments acknowledge employing “coercive interrogation” but insist that they do not practice or condone torture. The definition of torture makes it easier to draw such semantic distinctions since it stipulates that a particularly high threshold must be met. Interrogation methods must not only cause pain but “severe” pain; they must not only involve degrading and inhuman treatment, but an “aggravated” form of such treatment. The prohibition against the intentional infliction of severe physical or mental suffering therefore opens up a subjective judgment as to whether particular methods cause sufficiently severe pain as to be considered torture. Certainly, officials have a vested interest in insisting that instances of painful abuse should not be branded with the emotionally charged label of “torture.” As a case in point, former US Secretary of Defense Donald Rumsfeld refused to qualify actions by US soldiers as torture, qualifying the controversial methods as “abuse, which I believe is technically different from torture” (quoted in Hochschild 2004).
By drawing such distinctions, officials seek to distance themselves from any association with torture. In the popular imagination, torture calls to mind images of dungeons furnished with medieval instruments designed to maim and mutilate. As such, torture tends to be associated with barbaric methods of inflicting physical pain that are readily condemned by the civilized world. Yet modern torture, as Darius Rejali chronicles, often takes the form of “clean” torture techniques that inflict pain without leaving visible marks. Techniques such as electric shock, choking with water, near asphyxiation, and certain types of beatings are specifically designed not to “bruise the merchandise,” which makes them easier to deny and allows states to avoid bad publicity (Rejali 2007:1–5). Interrogation techniques such as “sleep management” (20-hour interrogations for every 24-hour cycle), “environmental manipulation” (exposure to extreme heat or cold), “stress and duress” (forcing a prisoner to stand or sit in uncomfortable positions for long periods of time), and “ego down” (degrading treatment) produce extreme physical suffering more than intense pain; as such, they are often downplayed as “torture lite” (Jaffer and Singh 2007:8–19; Bowden 2003:53). For example, when asked to approve specific interrogation techniques for prisoners at Guantánamo, Defense Secretary Rumsfeld authorized forcing prisoners to stand for long periods of time and even asked why this was limited to eight hours per day, suggesting that he stood that long if not longer himself. Elaine Scarry points out that forcing people to stand completely immobile for long periods of time “can produce as violent muscle and spine pain as can injury from elaborate equipment and apparatus, though any of us outside this situation, used to adjusting our body positions every few moments before even mild discomfort is felt, may not immediately recognize this” (Scarry 1985:47–8).
Thus, according to certain perspectives, interrogation techniques and detention procedures that aim at “softening up” prisoners through sensory deprivation, sexual humiliation, and exploitation of phobias, though unpleasant, do not constitute torture. Similarly, psychological manipulations designed to break a person's resistance by creating fear, terror, or helplessness may not be counted as torture because they are presumed not to cause prolonged mental harm, such as the development of post-traumatic stress disorder (Başoǧlu, Livanou, and Crnobarić 2007:277–8). Such a distinction between physical torture and extreme mental suffering is reflected in the different legal status of torture, on the one hand, and cruel, inhuman, or degrading treatment, on the other. The British government, recognizing the significance of this distinction, appealed a ruling by the European Court and scored a public relations victory by reducing the court's finding to the judgment that Britain was “only” guilty of cruel and unusual treatment of Irish political prisoners – not actual torture (Millett 1994:102). The Convention Against Torture also creates a distinction, requiring signatory states to criminalize official torture, but simply exhorting them to work to prevent cruel, inhuman, or degrading treatment.
Yet, a recent study of survivors of torture found that psychological manipulation, humiliating treatment, exposure to adverse environmental conditions, and forced stress positions were no different from physical torture in terms of the level of traumatic stress and the long-term psychological after-effects that they cause. Based on their findings, the authors conclude that it is misleading to distinguish between torture and other cruel, inhuman, or degrading treatment since both can cause severe mental suffering (Başoǧlu, Livanou, and Crnobarić 2007:283–4). Along the same lines, David Luban argues that “there is something deeply wrong, not to mention perverse, about the entire enterprise of trying to draw fine lines between torture and lesser abuses. An essential continuity exists between them, because all have the degradation of their victim as their core” (Luban 2009:222). For Luban, the key characteristic of torture lies in the abject humiliation of the victim, whose sense of complete powerlessness creates such intense fear that the victim is terrorized and “broken.”
Elaine Scarry shares Luban's view that torture renders the victim completely powerless, but she focuses on the way that the infliction of excruciating pain does this. According to Scarry, torture reduces people to prisoners of their bodies, demonstrating and magnifying the power of the agent (and, by extension, the regime) employing torture (Scarry 1985:27–8). The “annihilating power of pain” narrows victims’ consciousness, reducing their focus to immediate bodily sensations. Their bodies become agents of their own agony, as the “grotesque overload” of physical pain disintegrates their sense of self and eliminates their ability to express and project themselves through language (Scarry 1985:47–9). The “world-destroying” effect of torture, in turn, compels prisoners to confess, “to assent to words that through the thick agony of the body can be only dimly heard” (Scarry 1985:33, 35). The confession, as Scarry explains, is what provides a justification for brutal treatment, redirecting moral responsibility from the torturer to the prisoner. Even though the torturer is in complete control, the interrogation process shifts blame on to the victim, pretending that the prisoner has caused this situation by withholding information. Yet even a confession does not absolve the prisoner: “despite the fact that in reality he has been deprived of all control over, and therefore all responsibility for, his world, his words, and his body, he is to understand his confession as it will be understood by others, as an act of self-betrayal” (Scarry 1985:47).
Along similar lines, Jean Améry, a victim of torture during World War II, writes that torture destroys people's sense of self by breaking down the boundaries of the body. When the victim's body is attacked – and furthermore, when the victim has neither the ability to defend himself nor the expectation of help from another person – then he becomes nothing but a body in pain: “only in torture does the transformation of the person into flesh become complete. Frail in the face of violence, yelling out in pain, awaiting no help, capable of no resistance, the tortured person is only a body, and nothing else beside that” (Améry 1980:28). The victim can no longer control his own body, which becomes the instrument of the torturer. By virtue of his control over the victim's body, the torturer becomes absolutely sovereign over the prisoner's flesh and spirit. Victims are completely isolated, hopeless and helpless, with their fundamental trust in the world shattered. The torturer exercises absolute domination by rendering the victim utterly helpless and subordinate (Améry 1980:21–40).
Recent philosophical essays argue that it is the asymmetrical relationship between victims and torturers that makes torture distinctive. Whereas victims of torture are completely vulnerable and exposed, their torturers are in perfect control. Victims are utterly at the mercy of their tormentors; the prisoner “cannot effectively evade, retaliate or shield himself against these assaults. Unlike other kinds of attack, here the victim must simply take it: there is no reply or counter open to him” (Sussman 2005b:31). Moreover, the victim cannot stop his or her physical suffering by admitting defeat; although in theory torture will stop once the subject confesses or provides certain information, “a torturer seldom if ever knows how much useful information the tortured has or how much the tortured must confess in order to have confessed ‘everything’” (Davis 2005:164). Torture takes full advantage of victims’ helplessness, turning them into active accomplices in their own debasement. Because of the insistent, primal demand for relief from intense pain, victims cannot help but search for some way of appeasing or mollifying their tormentors; the “victim experiences within himself a dialectic where some part of him serves as the eager agent of his tormentor … the victim finds in his pain, and his own immediate responses to that pain, a surrogate for the torturer. The victim's own voice, the voice of his body, has come in part to speak the torturer's mind” (Sussman 2005b:24). In addition to exploiting the victim's pain, torturers defile, degrade, and overwhelm their victims with shame, similar to victims of rape; not surprisingly, sexual torture is often used to emphasize the power of the tormentor and the vulnerability of the victim (Millett 1994:34–5). In Christine Gudorf's (2011) feminist analysis of torture, rape, especially serial gang rape, should be understood as torture, as the essence of torture is the use of severe pain to obscure or obliterate the victim's sense of agency.
Although torture does not always succeed in forcing a prisoner to say or do what the torturer wants, it aims at destroying a prisoner's will. The deliberate infliction of severe physical pain or mental suffering is not enough; this must be done against the victim's will. When a person voluntarily submits to painful procedures (such as self-flagellation or painful medical procedures), this does not qualify as torture. Moreover, torture differs from coercion insofar as torture seeks to terrorize victims into submission by overwhelming their capacity to exercise rational control over their decisions. Finally, torture differs from corporal punishment insofar as the latter prescribes a specific, predetermined penalty for a particular transgression and does not seek to break the guilty party's will (Miller 2008; for a contrasting view, see Schabas 1996:4). As Manfred Nowak, the UN Special Rapporteur on Torture, explains in his study of US and international standards of torture, what distinguishes torture is the total subordination of the victim to the will and power of the torturer, for example through prolonged incommunicado detention in a secret place, which permits the perpetrator to intentionally inflict pain or suffering so as to extract a confession, obtain information, or punish or intimidate the victim (Nowak 2006:832).
History and Contemporary Practice
Although torture has come to be widely rejected, this was not always the case. Historically, torture was not only common in times of war and social upheaval, but it was also openly practiced in many societies as an integral part of the judicial system. No euphemisms for torture were needed in medieval Europe since there was no need to deny the process and torture enjoyed general cultural consent (Silverman 2001:21). Throughout much of history and much of the world, torture was seen as an effective technique for obtaining “true” information as well as an appropriate punishment for the immoral and a useful deterrent against future misconduct. Ancient Greeks accepted torture for the interrogation of slaves based on the assumption that slaves could not be trusted to reveal the truth voluntarily. The Romans adopted this practice and extended it to citizens, including Christians who were “put to the question” to force them to renounce their faith. With the rise of Christianity, torture fell into relative disuse until the eleventh century, when European judicial systems resurrected the practice of judicial torture and the Catholic Church reversed its previous opposition to torture and sanctioned the use of torture against heretics (Peters 1985:13–14). In China, torture was a legally sanctioned means of extracting information and confessions from the Han dynasty (206 bce–220 ce) until just before the end of the imperial system in 1905. Chinese officials were convinced that “the measured use of torture could result in more substantive justice – in the sense that the guilty were more likely to be convicted and the innocent allowed to go free” (Park 2008:37).
Analyzing the accepted use of torture in medieval Europe, Lisa Silverman explains that Europeans generally believed that the truth could be elicited from the subconscious by applying physical pain: “It was widely believed that the body had many ways to betray the criminal involuntarily, speaking the truth in signs for all to see while the will stopped the tongue. Pallor, for example, was well known to indicate guilty knowledge” (Silverman 2001:61). By inflicting physical pain, legalized torture was therefore seen to bypass the human will and force truth from the guilty, while God would reward those proven innocent. Contrary to the modern assumption that only testimony that is given voluntarily is true, early modern people assumed that “the accused spoke the truth not freely but under compulsion, and it was precisely this compulsion … which made evidence acquired under torture so valuable” (66).
The legal acceptability of torture therefore rested on the belief that it was an unpleasant but necessary means for discovering the truth and thus achieving justice. Criminals would be made to confess their guilt and pay for their crimes; the innocent would be vindicated. In both cases, the pain and suffering of those tortured would help achieve a higher goal, whether preserving civilization, fulfilling a sacred religious mission, or protecting the community. Torture was also used as an accepted part of ordinary criminal procedure in Europe from the thirteenth to the late eighteenth centuries, when judges were required to establish certain guilt in order to convict someone of a serious crime; certainty, in turn, was established through the testimony of two eyewitnesses or the accused person's own confession. Because the two-eyewitness standard was so difficult to achieve, torture became an accepted means of extracting confessions (Langbein 2004:94–7).
In each case, the practice of torture was subject to strict rules, including the specific instruments to be used, the way in which they were to be applied, and the types of people who could be subjected to torture. In each case, initial restrictions were eventually eased. In ancient Greece and Rome, the rule that only slaves could be tortured was eventually expanded to include other groups; similarly, initial exemptions for women, children, and privileged classes were eventually dropped in medieval Europe. As John Conroy explains, “the class of people whom society accepts as torturable has a tendency to expand” (Conroy 2000:27–8).
Changes in European legal systems led to a general ban on torture in continental Europe over the course of the eighteenth century. With the advent of less severe punishments for crimes, standards of proof could be relaxed. Defendants could be sentenced to jail, the workhouse, or exile rather than death; whereas the high stakes involved in sentencing a prisoner to death required definitive proof, relatively lighter sentences could be justified on the basis of circumstantial evidence. Torture-induced confessions were no longer legally justified (Langbein 2004:97–9). The abolition of a legalized system of judicial torture also reflected a shift in thinking about torture. Previously, torture was justified on religious grounds since it was presumed to benefit the sufferer by forcing him to admit the truth, even against his will, and thus bringing him closer to God. The infliction of pain was seen as a positive technique for saving the souls of fallen Christians, allowing sufferers to atone for their sins and win eternal salvation; hence, torture in the Inquisition was justified as Rettungsfolter or salvation-oriented torture (Glucklich 2001).
Over the course of the eighteenth century, however, Enlightenment thinkers challenged this sacramental view of pain, contending that pain had no redeeming value and no connection to metaphysical truths; these intellectuals replaced the sacramental vision of pain with a medical approach to pain that emphasized the need to relieve suffering. Rather than embracing physical pain as a positive technique for overcoming selfishness, they condemned it as a negative practice that destroyed the self. They denied the value of testimony elicited through torture and charged that torture was a “tool of despotism” and “a weapon in the arsenal of political oppression” (Silverman 2001:171). In his 1764 “Essay on Crimes and Punishments,” noted Italian prison reformer Cesare Beccaria wrote that governments have no right to authorize the punishment of a citizen so long as there remains any doubt of his guilt; according to Beccaria, torture was “a sure way to acquit robust scoundrels and to condemn weak but innocent people” (quoted in Foot 2006:135). The changing cultural landscape meant that, in Europe at least, torture was transformed from a generally accepted practice to a generally rejected practice by the end of the eighteenth century. In fact, judicial torture had already become less common before this time, since judges had previously become skeptical that torture necessarily produced truthful testimony (Silverman 2001:66–7; Langbein 2004:99).
Michel Foucault analyzes a similar shift in attitudes toward the use of torture as a method of punishment. Prior to the eighteenth century, torture was not only used to extract confessions but was also used as a form of extreme punishment intended to demonstrate and strengthen the sovereign's power: “Its aim is not so much to re-establish a balance as to bring into play, at its extreme point, the dissymmetry between the subject who has dared to violate the law and the all-powerful sovereign who displays his strength” (Foucault 1975:48–9). As such, torture was used to terrorize the rest of the population by demonstrating the fearsome consequences of incurring the sovereign's wrath. Yet the sovereign's public use of torture as punishment, for example in public executions, did not necessarily deter others from misbehaving; it sometimes triggered sympathy for the convict and prompted riots in support of the prisoner. Public torture therefore proved counterproductive to the goals of the state, undermining rather than reinforcing the sovereign's power. As such, it gave way to new disciplinary techniques that rejected brutal violence as an ineffective method of controlling and manipulating behavior. Although there was still a fear of violence and brutality, prisoners were found to be much more effectively disciplined by isolating them and subjecting them to constant surveillance.
Changes in legal theory meant that after the eighteenth century, judicial torture was no longer condoned in Western Europe. Coerced confessions were considered unreliable and were inadmissible as evidence. Torture came to be seen as the hallmark of a premodern, uncivilized culture, and modern, liberal regimes were assumed to have abandoned such a barbaric practice. According to the author of a 1907 entry on torture in the Encyclopaedia Britannica, “the whole subject is now only one of historical interest as far as Europe is concerned” (quoted in Twining and Twining 1973:305). Yet as Darius Rejali has shown, liberal democracies did not actually eradicate torture; instead, they developed “stealth” or “clean” torture techniques that left no visible marks and were therefore easier to downplay and deny (Rejali 2007:1–5). Clean torture first appeared in democratic countries, where governments continued to believe that coercive interrogation techniques were a useful means of generating valuable intelligence but also realized that they were being watched and judged by others in how well they respected human rights. In order to avoid bad publicity and preserve a veneer of legitimacy, they turned to stealth torture (Rejali 2007:10). Officials from intelligence agencies of democratic countries were also involved in training their counterparts in developing countries on interrogation methods, including torture (Blakeley 2006, 2009).
Since torture is forbidden by law, it is commonly associated with nondemocratic regimes that fail to recognize limits on their power and wantonly subject individuals to brutal, inhumane treatment. This association was encouraged after World War II when the victorious Allies worked hard to reinforce the sense that torture was “the method of the enemy,” something invented by the Gestapo and later used by Stalinists to sow fear in the population and neutralize dissent (Rejali 2007:538–42). Indeed, many totalitarian and authoritarian regimes have specifically used torture to terrorize their population, coerce false confessions, deter opponents, and consolidate power. These regimes employ torture as a mechanism for social control, using it to elicit information and intimidate their opposition. Christopher Einolf argues that repressive states came to see every citizen as a potential threat and created extensive networks of spies and informers, making it more likely that citizens who defied or criticized the government would be reported and punished (Einolf 2007:116). Nondemocratic regimes’ lack of accountability meant that they did not face the same pressures to disavow torture as did liberal democracies. However, with the rise of international campaigns against torture and the conditioning of foreign aid on adherence to human rights norms, even these states came to appreciate the value of appearing to conform to international norms prohibiting torture and adopted “clean” torture techniques in order to avoid bad publicity about their human rights practices (Rejali 2007:23–6).
Democratic countries also developed ways of evading public scrutiny of unsavory practices that they officially renounced but privately employed, yet their use of torture has been different from that of nondemocratic countries. Unlike nondemocratic governments, democracies are reluctant to use torture against their own citizens. While democratic governments have used torture extensively in the context of foreign wars and in maintaining control of colonial possessions, as well as against marginalized groups in their own territory, the torture of criminals and political opponents has become very rare in liberal democratic states, regardless of their level of economic development and other variables (Einolf 2007:113). Nonetheless, Einolf cites statistics that the use of torture increased dramatically during the twentieth century and attributes this in part to changes in the intensity and nature of military conduct; he points to the rise in counter-insurgency conflicts and explains that prisoners of war are more likely to be tortured for information in such conflicts than in conventional wars, where common soldiers possess relatively little information of value to the other side (Einolf 2007:114).
Thus, despite their general disavowal of torture, democratic regimes have continued to use torture, as revealed in reports of the French use of torture in Algeria and British practices against Irish dissidents, as well as the Israeli Supreme Court's condemnation of the methods used by Israeli security services to interrogate Palestinians suspected of “hostile terrorist activity” (Millett 1994:74–116). These practices were deliberately hidden from the public since this allowed democratic citizens to imagine that the methods employed by their government were both efficient and moral; as Andrew Linklater explains, “concealment protects moral sensibilities” (quoted in Steele 2010:153). Democratic elites also took advantage of the public's greater willingness to condone the use of torture against noncitizens or marginal citizens such as street children, vagrants, or illegal immigrants, who are often seen as “deserving” rough treatment (Kelly 2009). As Brent Steele explains, if we do not identify – or identify with – the individuals who are subjected to torture, then we can imagine that they are as bad as possible and that they deserve the treatment they receive (Steele 2010:153). Einolf agrees, citing evidence that torture is used “more often against people who are not full members of a society, such as slaves, foreigners, prisoners of war, and members of racial, ethnic, and religious outsider groups” or when the state is perceived to be under severe threat (Einolf 2007:102).
Institutional and Legal Influences on the Practice of Torture
All types of governments respond to violent challenges with repression. Studies have found that governments are significantly more likely to resort to torture when they face threats to their continued rule, especially when they are engaged in civil and international wars (see, for example, Wantchekon and Healy 1999; Einolf 2007). Emilia Powell and Jeffrey Staton cite data that 83 percent of all states that ratified the Convention Against Torture (CAT) engaged in at least minimal treaty violations, while 42 percent of ratifiers – including 30 percent of democracies that ratified the CAT – systematically violated the convention (Powell and Staton 2009:149–50). At the same time, however, not every government responds to terrorist attacks by resorting to torture; in countries where there have been strong public and cross-party support for limited counter-terrorism measures as well as effective political and judicial oversight, terrorist attacks have not caused governments to restrict human rights protections (Piazza and Walsh 2009:128–9).
Domestic institutions therefore influence the likelihood that states will uphold human rights. Democracies have a better record when it comes to respecting physical integrity rights (including freedom from torture as well as lack of extrajudicial killings, disappearances, and political imprisonment), especially where they have effective constitutional guarantees of the right to fair and public trials (Keith, Tate, and Poe 2009:652; Simmons 2009:273–4). Democracies are also more likely to ratify international human rights treaties; when they do, they generally comply with the terms of the treaties. Nondemocratic governments, on the other hand, are more likely to flout the terms of international human rights treaties, even when they have ratified such treaties. Thus, two types of governments are likely to adopt a ban on torture: sincere governments that are genuinely eager to set a pro-rights example and cynical governments that have little intention of actually improving their human rights practices and strategically ratify treaties as a form of “social camouflage” to win international approval or avoid criticism (Simmons 2009:112).
Nondemocratic governments are actually more likely to practice torture if they have signed the Convention Against Torture (CAT) than if they have not (Hathaway 2002). James Vreeland explains this initially counterintuitive finding by analyzing the different circumstances facing “open” and “closed” dictatorships. He found that dictatorships with the trappings of competitive party politics are both more likely to sign the CAT and also demonstrate higher rates of torture (2008:69–70). He explains that “closed” dictatorships in which power is concentrated in a single political party, junta, or leader actually face less opposition since defection is invariably punished. Such regimes face little pressure to ratify human rights treaties; moreover, since they rely on fear and intimidation to rule, “even a symbolic gesture against torture could introduce ambiguity over [their] limitations” (Vreeland 2008:78). Dictatorships that allow some competition, on the other hand, face much greater prospects of defection and consequently have higher average rates of torture. At the same time, the greater level of uncertainty that characterizes multiparty dictatorships means that domestic political actors are in a better position to press their government to ratify human rights conventions such as the CAT. Vreeland clarifies that acceding to the CAT does not itself cause an increase in torture and “may even serve to help reduce torture as governments adopt CAT provisions into domestic law” – which is why the domestic opposition in multiparty authoritarian regimes push for accession in the first place (2008:94). Jay Goodliffe and Darren Hawkins also argue that ratification entails a significant commitment insofar as it requires ratifying states to verify policy implementation, and establishes international monitoring and delegates prosecuting authority to other states through universal jurisdiction (2006:359–60).
Emilie Hafner-Burton, on the other hand, argues that “naming and shaming” by human rights NGOs, media sources, and international organizations is often followed by even more acts of torture and disappearances (Hafner-Burton 2008:700–1). This arguably results from the fact that international pressure compels repressive governments to make a variety of improvements in political rights, but doing so exacerbates leaders’ insecurity and prompts them to engage in increased terror to offset these improvements, especially when armed opposition groups or elections threaten their hold on power (Hafner-Burton 2008:712). While Simmons acknowledges that international human rights treaties like the CAT cannot force governments to comply, she insists that these treaties can and do reduce torture in polities that have had some experience with political accountability and in regimes that are highly volatile (Simmons 2009:273).
All in all, both democratic and nondemocratic forms of government engage in ill-treatment and torture, but the existence of liberal democratic institutions reduces the incidence of torture. More particularly, effective judicial institutions seem to protect individuals from torture (Einolf 2007:118; Powell and Staton 2009:162–7). In addition, “both freedom of expression and elections hasten the transition away from the ill-treatment and torture of detainees” once violent dissent is stopped (Moore 2010:423). Yet strong domestic legal systems can make states less inclined to ratify international human rights treaties since this implies significant constraints on their behavior. As a result, electoral and legal constraints make human rights treaty ratification more costly for democracies, as demonstrated by widespread criticism of US failure to live up to its legal obligations in its war on terror.
Torture in the War on Terror
Numerous works have provided detailed analyses and documentary evidence of the Bush administration's incarceration and interrogation policies in the war on terror (e.g., Danner 2004; Hersh 2004; Greenberg and Dratel 2005; Jaffer and Singh 2007; Mayer 2008). Although some have argued that the physical and sexual abuse of prisoners has been standard practice in US prisons for quite some time, others suggest that there was a profound shift in attitudes toward torture following the 9/11 attacks. Justice Richard Goldstone, a former prosecutor of the International Criminal Tribunal for the former Yugoslavia and Rwanda and retired justice of the South Africa Constitutional Court, argues that the US government shifted its traditional stance against torture following the terrorist attacks on September 11, 2001, abandoning its leading role in outlawing torture (Goldstone 2005:344–5). Similarly, Jane Mayer comments that the United States followed strict rules governing the humane treatment of military prisoners throughout most of its history and took the lead role in drafting and ratifying the 1984 Convention Against Torture. However, “the fear flowing from the attacks on September 11” led the Bush administration “to institute a policy of deliberate cruelty that would have been unthinkable on September 10” (Mayer 2008:328).
In her study of the US treatment of prisoners of war from independence to the present, Stephanie Carvin points out that US adherence to the laws of war has always been inconsistent. While the United States has been crucial to the development of laws of war, it has also felt justified in waging savage wars against native populations, especially when they did not fight in the “civilized” manner of European nations (Carvin 2010:59–61). Indeed, Carvin argues that throughout much of US history, the laws of war were invoked to excuse brutal conduct, as “honorable” enemies who followed these laws were deemed to be legitimate combatants and thus entitled to be treated in kind, whereas “dishonorable” enemies who fought dirty wars using unconventional methods were shown little mercy (Carvin 2010:80–2). After World War II, and even more so as a reaction to the war in Vietnam, the US military came to recognize that “major violations of the laws of war are quite costly in terms of resources, manpower and reputation” and generally played by the rules of engagement codified in national and international law (Carvin 2010:135). Even before the attacks of 9/11, however, increasing suspicion toward the idea of international human rights standards and international law had emerged, as crystallized in the arguments of “New Sovereigntists” that international law cannot restrict a sovereign country's actions since the ultimate purpose of the state is to protect its inhabitants – even if this means violating principles of international law (Carvin 2010:140–50).
This new paradigm was reflected in government policy following the attacks of 9/11. Immediately following the attacks, lawyers in the Office of Legal Counsel in the Justice Department laid out an expansive vision of presidential power, arguing that the President was constitutionally entitled to respond in any way he deemed necessary to meet a terrorist threat. In October, Deputy Assistant Attorney General John Yoo authored a memorandum indicating that legal and constitutional rules governing law enforcement (including the Fourth Amendment's prohibition against unreasonable searches and seizures) did not apply due to the state of armed conflict; furthermore, Yoo argued that the President had the constitutional authority to use armed force against terrorists within the United States (“Memorandum Opinion for the Deputy Counsel to the President,” September 25, 2001; reprinted in Greenberg and Dratel 2005:3–24). Yoo and others within the Office of Legal Counsel advanced a very narrow view of the applicability of international and national law to the war on terror, stipulating that the United States was not legally bound to grant al-Qaeda or Taliban suspects the protections accorded to prisoners of war under the Geneva Conventions (“Application of Treaties and Laws to al Qaeda and Taliban Detainees,” January 9, 2002 and January 22, 2002; “Status of Taliban Forces under Article 4 of the Third Geneva Convention of 1949,” February 7, 2002; reprinted in Greenberg and Dratel 2005:38–117, 136–43). White House General Counsel Alberto Gonzales argued that the war on terror was a new kind of war that “renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions” (quoted in Carvin 2010:153). President Bush agreed with this conclusion, publicly declaring that the Geneva Conventions did not apply, although detainees would be treated humanely “as a matter of policy” even though they were “not legally entitled to such treatment” (Greenberg and Dratel 2005:118). Building on this, the Office of Legal Counsel argued that prisoners deemed enemy combatants – including US citizens arrested on US soil, as the case of Jose Padilla demonstrated – could be imprisoned and tried by the military (Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, “Determination of Enemy Belligerency and Military Detention,” June 8, 2002). Prisoners in Guantánamo were denied the right to habeas petitions (Patrick F. Philbin, Deputy Assistant Attorney General and John Yoo, Deputy Assistant Attorney General, US Department of Justice, Office of Legal Counsel, “Possible Habeas Jurisdiction over Aliens Held in Guantánamo Bay, Cuba,” December 28, 2001; reprinted in Greenberg and Dratel 2005:29–37) and the President was argued to have the unfettered right to transfer prisoners captured in the war on terror to governments without regard for whether they would be tortured (Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, “The President's Power as Commander in Chief to Transfer Captured Terrorists to the Control and Custody of Foreign Nations,” March 13, 2002).
As early as 2002, staff from the Survival, Evasion, Resistance and Escape (SERE) program were enlisted to instruct military personnel at Guantánamo on interrogation techniques. The SERE program, which was designed to train US soldiers and CIA operatives to withstand torture, subjected participants to harsh treatment such as forced nudity, stress positions, isolation, sleep deprivation, sexual humiliation, and exhaustion from exercise. Despite the fact that SERE training was not designed as a means of interrogation, similar techniques were employed at Guantánamo and subsequently in Afghanistan and Iraq (Mayer 2008:157–64). In October 2002, chief counsel to the CIA's counterterrorism center, Jonathan Fredman, consulted with military interrogators at Guantánamo, noting that the Justice Department had approved “significantly harsh” techniques for the CIA, including waterboarding and the manipulation of phobias (Benjamin 2008). Military interrogators were reluctant to adopt higher standards that would call the Justice Department's reasoning into question and began to engage in similar practices, “always shadowed by information and rumors about what the ‘intelligence’ people were doing” (Zelikow 2012:30).
At the same time that the administration insisted that neither the Geneva Conventions nor customary international law applied, it sought to justify its actions in legal terms. Top administration officials and legal advisors also articulated the legal basis for a far-reaching set of permissible interrogation techniques. These included an August 2002 memo written by Deputy Assistant Attorney General John Yoo, which was approved by the Assistant Attorney General, Jay S. Bybee. This memo, which was dubbed the “torture memo” after it was released in 2004, promulgated an extremely narrow view of the ban on torture, concluding that abuse did not rise to the level of torture unless it inflicted pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” For purely mental pain or suffering to constitute torture, it had to result from “extreme acts” and “result in significant psychological harm of significant duration, e.g., lasting for months or even years.” The memo went on to examine a number of techniques such as sensory deprivation that “may amount to cruel, inhuman or degrading treatment,” but insisted that these “do not produce the pain or suffering of the necessary intensity to meet the definition of torture” (“Standards of Conduct for Interrogation under 18 USC §§2340–2340A,” August 1, 2001; reprinted in Greenberg and Dratel 2005:172–217). As such, in the words of Alberto Mora, General Counsel of the Navy, the memo “explicitly held that the application of cruel, inhuman and degrading treatment to the Guantánamo detainees was authorized with few restrictions” (Jaffer and Singh 2007:14–15).
Consistent with this narrow interpretation, detainees were carefully monitored “to ensure that … their suffering never crossed the talismanic legal threshold to ‘severe’ (in which case it might count as torture, and the agents who performed it as serious felons)” (Luban 2009:221). Defense Secretary Donald Rumsfeld authorized a number of approved interrogation techniques in December 2002, including the use of stress positions, forced nudity, sensory deprivation, and manipulation of phobias, with harsher techniques for “exceptionally resistant detainees” permitted only by special request (“Counter-Resistance Techniques,” December 2, 2002; reprinted in Greenberg and Dratel 2005:237). These techniques superseded existing military regulations prohibiting “acts of violence or intimidation, including physical or mental torture, threats, insults, or exposure to inhumane treatment as a means of or aid to interrogation” (Jaffer and Singh 2007:5). In response to objections from some FBI agents and military lawyers about the legality and effectiveness of the techniques employed, a working group commissioned by Secretary Rumsfeld issued a revised list of interrogation techniques in April 2003. These remained controversial, however, as was the report's claim that interrogation techniques prohibited by law could be overruled by the President if he believed they were necessary to prevent attacks upon the United States (“Working Group Report on Detainee Interrogations in the Global War on Terrorism,” April 4, 2003; reprinted in Greenberg and Dratel 2005:286–359). Such a finding rested on the arguments articulated in a March 2003 memo prepared for Department of Defense General Counsel William J. Haynes II by Deputy Assistant Attorney General Yoo. In this memo, Yoo argued against the application of statutes such as the prohibition against torture to the conduct of the military during wartime since this would infringe on the President's commander-in-chief authority; in effect, this suggested that presidential directives can never result in crimes on the grounds that whatever the President orders in his role as commander in chief is lawful (“Military Interrogation of Alien Unlawful Combatants Held Outside the United States,” March 14, 2003:13). Furthermore, Yoo argued that no international treaty can eliminate the government's right to use necessary measures for its self-defense, so that international law prohibiting torture does not apply to some interrogations: “if interrogation methods were inconsistent with the United States' obligations under CAT, but were justified by necessity or self-defense, we would view these actions still as consistent ultimately with international law” (“Military Interrogation of Alien Unlawful Combatants Held Outside the United States,” March 14, 2003:58).
The legal memoranda prepared by officials in the Bush administration thus sought to establish a set of guidelines for interrogation policies that would allow for a wide range of practices believed necessary to secure actionable intelligence. Interrogators at detention facilities at Guantánamo and in Iraq and Afghanistan began using abusive techniques, believing that such techniques were not only useful but were encouraged by senior officials. From Vice President Dick Cheney's statement in a 2001 press interview that US intelligence personnel would have to “work … sort of the dark side, if you will” to encouragement by the Commander of the US Central Command, Lieutenant General Ricardo S. Sanchez, to “go to the outer limits” and “break” prisoners in order to obtain information, senior officials conveyed the message that abuse was acceptable. In a June 2004 memorandum prepared for the navy inspector general, Navy General Counsel Alberto Mora noted that this created the danger of “force drift”: “once the initial barrier against the use of improper force had been breached … the level of force applied against an uncooperative witness tends to escalate such that, if left unchecked, force levels, to include torture, could be reached” (Mora 2004:4).
Criticism of interrogation practices came from other sources as well. The International Committee of the Red Cross issued a confidential report in February 2004 in which it charged that abuse of Iraqi prisoners by US military intelligence personnel was widespread and in some cases “tantamount to torture.” The report, excerpts of which were published in the Washington Post, included statements by military intelligence officers that harsh and brutal tactics were “part of the process” when trying to “obtain confessions and extract information” (“Report of the International Committee of the Red Cross on the Treatment by the Coalition Forces of Prisoners of War and Other Protected Persons by the Geneva Conventions in Iraq During Arrest, Internment and Interrogation,” February 2004; reprinted in Greenberg and Dratel 2005:383–404). A secret 2004 report prepared by US Army Major General Antonio Taguba detailed various forms of abuse of detainees and other prisoners at Abu Ghraib prison in Baghdad. The report also cited evidence that interrogators from military and civilian intelligence organizations “actively requested” that military police at Abu Ghraib “set the physical and mental conditions for favorable interrogation of witnesses.” The Taguba report also revealed that several prisoners had been detained without registering them with the International Committee of the Red Cross, despite the fact that such “ghost prisoners” constitute an unambiguous breach of international law (“Article 15–6 Investigation of the 800th Military Police Brigade,” March 2004; reprinted in Greenberg and Dratel 2005:405–66; also see Jaffer and Singh 2007:37). A Defense Department “Information Paper” leaked to the press in early April 2004 lists sixty-two allegations of prisoner abuse, including fourteen deaths that could not be attributed to natural causes (“Allegations of Detainee Abuse in Iraq and Afghanistan,” April 2, 2004). These and other documents detail various types of abuses in detention facilities throughout Iraq and Afghanistan, including electrocution, burning, asphyxiation, strangulation, sexual assault, and blunt force injuries.
Despite such reports, generally little attention was paid to administration policies until the publication of shocking photographs of detainee abuse at Abu Ghraib in April 2004. The photographs had a visceral impact, profoundly challenging Americans' self-image. They offered “the actual incontrovertible proof of abuse [and] had a power that no written or oral description could match” (Mayer 2008). As Brent Steele explains, Americans (like citizens of any nation-state) draw intrinsic satisfaction from an aesthetic construction of national identity that makes them appear more attractive to others and to themselves (Steele 2010:2–4). The iconic images in the Abu Ghraib photographs compromised this aesthetic identity and forced Americans to confront the unappealing aspects of their government's use of power. The undeniable evidence in the photographs brought practices to light that had previously been hidden from view, triggering a debate whether the abuses were an aberration or the logical consequence of government policies in the war on terror.
The Bush administration responded by denouncing the abuses as the actions of rogue individuals and denying that the US government officially sanctioned torture. A number of academic works and journalist reports criticized US policy, charging that “the torture of prisoners is not an aberration” (Sontag 2004). In its 2008 report, “Inquiry into the Treatment of Detainees in US Custody,” the Senate Armed Services Committee agreed that claims made by top administration officials that detainee abuses could be chalked up to the unauthorized acts of a “few bad apples” were false. As Senator Carl Levin summarized, the committee's investigation showed that “senior officials sought out information on, were aware of training in, and authorized the use of abusive interrogation techniques. Those senior officials bear significant responsibility for creating the legal and operational framework for the abuses.” Critics also denounced the Bush administration's use of “tricky legalisms” to sanction practices that many people – including prominent administration insiders – considered to be torture (Mayer 2008:151). One such critic, former State Department official Philip Zelikow, faulted government lawyers for focusing on a narrow legal analysis that ignored political realities: “instead of framing the question around what should be done, carefully inventorying prior US and foreign experience in detention practices and interrogations and analyzing all the pros and cons, the issue was debated as one of what can be done” (Zelikow 2012:5). Ben Saul advanced a similar criticism of “instrumentalist lawyering” that manipulated legal rules so as to serve the counter-terrorist imperatives of the executive, instrumentally interpreting existing prohibitions “so as to fit one's chosen methods of torture within the contours of permissible conduct” (Saul 2008:9).
Despite some internal disagreements, top Bush administration officials continued to reject recommendations – for example, in the July 2004 report of the 9/11 Commission – that the United States abide by Common Article 3 of the Geneva Conventions, which prohibits cruel, inhuman, and degrading treatment in all types of armed conflict (Zelikow 2012:33–4). Although the administration eventually did accept the “CID” standard of Common Article 3 in the fall of 2005, thanks to media scrutiny of controversial practices including the CIA's use of “black sites” for interrogation as well as congressional pressure to adopt new standards for the treatment of detainees, Zelikow notes that lawyers in the Office of Legal Counsel insisted that existing CIA interrogation practices – including “waterboarding, walling, dousing, stress positions, and cramped confinement” – did not violate the constitutional ban on cruel and unusual punishment (Zelikow 2012:34–9). It was not until the fall of 2006, following considerable internal debate and the Supreme Court's ruling in Hamdan v. Rumsfeld that Common Article 3 must be applied to the US government's treatment of captives, that the administration announced a tightening of interrogation standards.
From Zelikow's point of view, the US government “program of coolly calculated dehumanizing abuse and physical torment to extract information” was a mistake that damaged the stature of the United States and the efficacy of US policies and operations (Zelikow 2012:43–4). Brent Steele argues that US use of torture is ultimately a symptom of the decline of US influence and the vulnerability of power, citing US inability to prevent the dissemination of images that challenge “the beauty of the ‘idea’ that is US power” (Steele 2010:157). In addition, Steele argues that powerful actors become trapped by the need for action; they “must move, do something, ‘demonstrate’ [their] physique, foil more attacks” even if this becomes counterproductive (Steele 2010:158). Steele adds that powerful actors can also become trapped by their own rhetoric, with the amorphous threat of global terror defined so broadly that it cannot possibly be contained (Steele 2010:158).
Since 9/11, there has been considerable debate over state use of torture. Critics of torture charge that it is immoral because it involves the inhumane treatment of human beings, who are treated as means. These critics describe torture as even worse than death since “torturers deprive the tortured of every means of suicide, fearing that the tortured will choose death over further torture if given the chance” (Davis 2005:165; also see Sussman 2005b:15; for a contrasting point of view, see Miller 2008). From this point of view, torture is evil because it intentionally inflicts severe physical suffering.
On the other hand, a number of scholars have argued that individual acts of torture by state officials are warranted in extreme situations. These authors argue that in some cases torture constitutes a lesser evil for a greater good; according to this consequentialist analysis, in order to protect the well-being of large numbers of innocents, it is acceptable to harm individual terrorist suspects (Wynia 2005:4). Decision-makers sometimes have to choose between two evils in what is commonly referred to as the problem of dirty hands. Alan Dershowitz (2004), for example, contends that state officials have to make hard judgments about choices between evils and are often not in the position simply to refuse to act in an evil fashion. Michael Walzer (2004) argues that it is impossible to govern innocently, and that a given action might be a moral wrong and yet considered in utilitarian terms still be the right thing to do. To act with dirty hands you must do something wrong in order to achieve some higher good. Fritz Allhoff, for example, supports the use of torture to prevent future threats from occurring provided there is a reasonable expectation that the suspect has relevant information about a threat that poses a significant and imminent danger and provided that there is a reasonable expectation that information obtained through torture can prevent a significant threat from being realized (Allhoff 2003:127–9). Similarly, Gary E. Jones supports the use of torture in order to save many lives, citing the need to “balance the morality of torturing the terrorist against that of allowing the murder of many innocent persons” (Jones 1980:13).
In addition to the argument that torture secures more human rights than it infringes, justifications for torture often point to an underlying asymmetry of power that necessitates the resort to torture. As Ben Saul explains, modern democratic societies are considered particularly vulnerable to terrorist attacks, leading to the assertion “that the terrorist tactics – the risk of exposure to indiscriminate death at any moment – must be met by measures of a proportionate intensity, including torture where necessary” (Saul 2008:8). In the face of the danger posed by terrorism, the use of torture by democratic institutions can be seen as a type of preemption. Mark Danner cites the logic articulated by a French intelligence officer in Algeria as depicted in the 1965 film Battle of Algiers: “a traditional army can defeat a determined guerrilla foe only through superior intelligence; superior intelligence can be wrested from hardened insurgents in time to make it ‘actionable’ only through the use of ‘extreme interrogation’ – torture; therefore, to have a chance of prevailing in Algeria the French army must torture” (Danner 2004:39). He draws parallels between the “practical” logic of soldiers and intelligence officers charged with gaining intelligence as opposed to the hypocrisy of politicians who ensure they will have plausible deniability so that if and when controversial methods are exposed, the politicians can express mock surprise and distance themselves from the unpleasantness.
Given the gap between rhetoric and reality, some scholars have called for a more pragmatic approach, arguing that the use of torture should be regulated rather than proscribed. Alan Dershowitz maintains that the better question to ask is whether torture should be allowed to continue “below the radar screen, without political accountability” or whether to require authorization from top political or judicial leaders as a precondition to the infliction of any type of torture; from Dershowitz's perspective, a “realistic” emphasis on accountability would reduce hypocrisy and minimize the occurrence of torture (Dershowitz 2004:259, 266–7). Mirko Bagaric and Julie Clarke take this argument one step further, contending that torture is “an effective means of gathering information” and is “morally permissible where it is the only means available to save innocent lives” (Bagaric and Clarke 2007:4, 12). From Bagaric and Clarke's perspective, those who advocate an absolute ban on torture adopt an inappropriate focus on individual rights, ignoring what is important for the collective. Tibor R. Machan offers a similar argument, insisting that torture is morally justified when the moral right of innocents to live preempts the moral right of the guilty to be exempt from retaliation.
Mark Bowden agrees that torture is justified if it is used to save lives and that the well-being of captives is outweighed by the lives that might be saved by forcing them to talk. “A method that produces life-saving information without doing lasting harm to anyone is not just preferable; it appears to be morally sound” (Bowden 2003:54). Miller also agrees:
For those who hold that killing is not an absolute moral wrong, it is very difficult to see how torture could be an absolute moral wrong, given that killing is sometimes morally worse than torture. In particular, it is difficult to see how torturing (but not killing) the guilty terrorist and saving the lives of thousands could be morally worse than refraining from torturing him and allowing him to murder thousands – torturing the terrorist is a temporary infringement of his autonomy, whereas his detonating of the nuclear device is a permanent violation of the autonomy of thousands.
Allhoff takes this argument further: “torture can be justified, even if it entails rights violations, so long as we find ourselves in such a quandary that rights will end up being broken whether torture occurs or not. In these situations, some rights violation is bound to occur regardless, we might as well either serve the greater good or aim to minimize the overall violation of rights” (2003:126–7).
This raises the question whether torture is effective or not. Bowden cites reports that claim that interrogation of captured terrorist leaders yielded important information and helped foil violent plots, but he also notes that there is no way to corroborate these stories (Bowden 2003:55). Experiments with mind-altering drugs have failed to produce a consistently reliable means of inducing subjects to divulge information that they don't want to. Sensory deprivation and isolation are generally more reliable, but even then, experimental results varied from person to person (Bowden 2003:57–8). Some captives will be more inclined to talk if threatened with death; others will give up and be less inclined to talk (Bowden 2003:60). On the other hand, other studies doubt whether torture allows interrogators to obtain more and better information than other methods. Of 625 instances of torture in France between 1500 and 1750, 67–95 percent of captives never confessed. The German Gestapo couldn't get precise information about the French resistance movement and only 5 percent of 400 airmen in the Vietnam War issued anti-US propaganda despite the widespread use of torture by both governments. In an official statement recommending that the United States should no longer employ “enhanced interrogation techniques,” Director of National Intelligence Dennis C. Blair conceded that such techniques may produce valuable information in some instances, but doubted whether they are necessary to obtain such information: “the bottom line is these techniques have hurt our image around the world, and the damage they have done to our interests far outweighed whatever benefit they gave us and they are not essential to our national security.”
Along similar lines, scholars have advanced a number of objections to the use of torture, citing unintended harms, destruction of political and social institutions, and the radicalization of populations that identify with those tortured. Richard Matthews warns that establishing a utilitarian rationale for torture can all too easily lead to the institutionalization of torture, as the establishment of a utilitarian rationale tends to preclude logical limits on the kinds (and targets) of torture that may be employed; in addition, the need for “practiced” torture in order to ensure methods will be successful compromises many individuals and raises questions about wider impact on public life (Matthews 2006:71–6). Similarly, Henry Shue argues that successful torturers need training but this entails the institutionalization of torture and creation of a torture bureaucracy (Shue 2006:236). He argues further that “to try to leave a constrained loophole for the competent ‘conscientious offender’ is in fact to leave an expanding loophole for a bureaucracy of routinized torture” (Shue 2006:238). “One can imagine rare torture but one cannot institutionalize rare torture – as The Torture Papers show” (Shue 2006:238).
Scholars who are concerned that abusive treatment will become the norm point to cases in which officially sanctioned “aggressive interrogation” techniques deteriorated into a system of routine abuse, citing Israel and the United States as examples. They worry that torture tends to become an entrenched, ever-widening practice; though initially justified as an emergency measure, it tends to become a permanent feature (Sussman 2005b:12). In addition, critics worry that torture tends to be applied to broader groups, taking in more suspects than those approved and leading to harsher methods than were originally authorized (Rejali 2007:24). According to Rejali, “torture breaks down professionalism” – there is no effective guard against an inevitable decay in professionalism due to the fact that torturers are forced to push harder and use more severe methods to overcome some victims’ high threshold for pain and interrogators vie to break the prisoner first, with competitive rivalry between agencies gathering information. This can produce a “narrow professionalism, a kind of tunnel vision in which torture becomes an end unto itself’” (Rejali 2007:455).
Torture has also been criticized for its corrosive effect on professional and bureaucratic authority, encouraging police and military personnel to take short-cuts rather than work on other methods of crime detection and intelligence analysis. This can lead to the growth of an uncontrolled, unaccountable bureaucracy within bureaucracy (Rejali 2007:456–8). It also has a negative impact on medical professionals, eroding medical ethical norms (Wynia 2005:6). Another criticism of torture's harmful effects focuses on its tendency to discourage informants from coming forward (Rejali 2007:458–60). All in all, critics see torture as a counterproductive strategy of political control, which leaves a subject population more alienated and radicalized than cowed (Sussman 2005b:12). Given that torture is not confined to the guilty, it may make innocent victims into enemies.
The main arguments for abolition of torture are based on its inhumanity and injustice. Henry Shue argues that what makes torture, as opposed to some uses of deadly force, morally wrong is the fact that in order to torture someone, the agent must be in a position of complete power – i.e., not in any danger himself. There is no circumstance in which we would have to torture in self-defense. Thus, torture violates a basic principle of just combat: the prohibition against attacking the defenseless. “At least part of the peculiar disgust which torture evokes may be derived from its apparent failure to satisfy even this weak constraint of being a ‘fair fight’” (Shue 1978:130). The victim cannot fight back, has already lost, is defenseless: “It is in this respect of violating the prohibition against assault upon the defenseless, then, that the manner in which torture is conducted is morally more reprehensible than the manner in which killing would occur if the laws of war were honored. In this respect torture sinks below even the well-regulated mutual slaughter of a justly fought war” (Shue 1978:130).
Shue considers the counter-argument that the victim of torture may not be defenseless: while he cannot resist or shield himself against anything the torturer does to him, he may nonetheless be in a position to inflict harm (e.g., by refusing to reveal the location of a bomb). “The victim is not, on this view, utterly helpless in the face of unrestrainable assault as long as he or she holds in reserve an act of compliance which would satisfy the torturer and bring the torture to an end” (Shue 1978:130). Nonetheless, Shue rejects this line of argument, responding first of all that modern torture isn't necessarily aimed at eliciting “ticking bomb” kind of information; “terroristic” torture is used to intimidate people from opposing a regime, in part by punishing opponents and in part by demonstrating the penalty to others to deter them from opposing the regime (Shue 1978:131–2). In this case, victims cannot possibly comply. “Interrogational” torture is different insofar as it is aimed at extracting information; once this is done, there is no more need for torture (as opposed to terroristic torture, which has an incentive to torture as long and as cruelly as possible, even leading to death) (Shue 1978:133). The latter case provides, at least in theory, stronger grounds, but Shue nonetheless rejects it. He argues that the torturer may have the wrong suspect and cannot be certain that the victim actually possesses information that would allow him to surrender. As Shue notes, “systems of torture are notoriously incompetent. The usual situation is captured with icy accuracy by the reputed informal motto of the Saigon police, ‘If they are not guilty, beat them until they are’” (Shue 1978:135). An estimated 70–90 percent of prisoners abused at Abu Ghraib were not terror suspects (Wynia 2005:4). In such cases, victims of torture obviously have no way of complying and thereby ending their torture and are liable to make up false information.
Shue considers justifications for interrogational torture, admitting that it is possible to imagine a hypothetical case in which torture would be permissible, but he goes on to insist that “hard cases make bad law, and … artificial cases make bad ethics. If the example is made sufficiently extraordinary, the conclusion that the torture is permissible is secure. But one cannot easily draw conclusions for ordinary cases from extraordinary ones, and as the situations described become more likely, the conclusion that the torture is permissible becomes more debatable” (Shue 1978:141–2).
At the same time that torture is sometimes justified as an exceptional means to serve a moral cause, the strength of the universal norm against torture and torture's inherent repulsiveness mean that officials generally deny engaging in such practices. Michael Steele notes that images of official torture unmask the unappealing aspects of power, forcing societies to question the identity that they have constructed for themselves. When confronted with evidence such as the images in photographs from Abu Ghraib, American citizens’ sense of national identity was rattled since they want to believe, in the words of Senator John McCain, that their nation “stands for something more in the world – a moral mission, one of freedom and democracy and human rights at home and abroad” (quoted in Foot 2006:144). At the same time, however, depictions of torture have become much more common on television and in the media since 9/11, contributing to a growing sense that torture is a necessary, effective, and justified response to terrorism (Mayer 2008; Steele 2010:154–62). The popular television series 24, which debuted in 2001 and includes frequent, graphic depictions of torture, has been reported to have given US military personnel “lots of ideas” about interrogation models (Sands 2008:73–4; Clucas 2009:178–9; Steele 2010:154). In addition, it has arguably led to greater acceptance of torture on the part of viewers since “in repeatedly portraying torture as necessary, valuable, legally and morally permissible, and the proper remit of the hero … 24 stealthily, seductively convinces us that torture is a serious option, in fact a necessary, mandatory and inevitable right response to suspicion and time pressure and the need for information, and does so in the guise of entertainment” (Clucas 2009:198, 201).
So has the US public become more accepting of the use of torture? Empirical data are contradictory. Recent public opinion polls conducted by the Pew Research Center suggest that most US citizens are willing to condone the use of torture as a way of gaining important information from suspected terrorists, even if only sometimes or rarely. In contrast, Paul Gronke and Darius Rejali studied US attitudes toward torture between 2001 and 2009 and found that a majority of people were opposed to the use of torture throughout most of this period (Gronke and Rejali 2010:437). Rosemary Foot offers an explanation for these conflicting tendencies, pointing to different ideas about the kind of reputation that the United States should cultivate. On the one hand, some believe that the United States should act as a responsible sovereign, defending and upholding human rights; on the other hand, others emphasize that the United States needs to be an effective sovereign in order to deal with threats like terrorism (Foot 2006:137–8). Whereas the former reacted with disgust and dismay over the use of torture, the latter interpreted US willingness to resort to harsh interrogation methods as a sign of mastery over the enemy (Foot 2006:138).
Steven Lukes worries that inhibitions against violating basic rights have been corroded by a fear of terrorism, undermining the idea of human dignity that he insists should lead democracies to absolutely ban torture (2007:14–15). Rosemary Foot agrees that US actions in the global war on terror have set a troubling precedent for human rights, as the United States has upgraded ties with rights-abusing states and encouraged a number of other governments to emulate its “unrestrained” precedent (Foot 2006:139–40). At the same time, however, she argues that the normative prohibition against the use of torture continues to have “residual constraints” on behavior; although states may seek to reinterpret the anti-torture norm, they cannot simply cast it aside (Foot 2006:140, 144).
While human rights nongovernmental organizations and UN bodies seek greater compliance with the prohibition against torture, scholars generally agree that the most effective constraint on the use of torture is the existence of effective liberal democratic institutions (Moore 2010:422–3). Yet even though torture challenges the way that we like to think of ourselves and want others to think of us, democratic publics are inclined to look the other way so long as politicians do not openly acknowledge their use of dirty actions like torture. While the Obama administration has repudiated the use of torture and released additional documents detailing the use of so-called “enhanced interrogation techniques,” it has stopped short of releasing the torture photos and has decided against investigating the lawfulness of the Bush administration's treatment of detainees. Although disagreements remain over the precise definition of torture, its justifiability, and the effectiveness of international treaties prohibiting torture, most scholars agree that “the impressive worldwide prohibition of torture must be honored rather than co-opted by legal sleight of hand” since torture cannot be justified on moral grounds and is not necessary for security (Miller 2005:41).
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Links to Digital Materials
American Civil Liberties Union. At http://www.aclu.org/national-security/torture, accessed November 2012. The ACLU website includes thousands of searchable documents related to torture as well as a link to its 2009 “Torture Report,” which compiled government documents, investigations, press reports, witness statements, and other publications in order to give a full account of the Bush administration's use of torture. The website also provides information on individuals in the administration who designed and approved the abuse of prisoners, calling for them to be held accountable.
American Torture. At http://www.americantorture.com/documents.html, accessed November 2012. Michael Otterman, the author of American Torture: From the Cold War to Abu Ghraib and Beyond (2007), created this companion website that includes declassified documents that chart US involvement in torture from the early Cold War onward, including declassified documents on coercive interrogation techniques developed by the CIA in the 1950s, training manuals for Latin American military officers, torture memos of the Bush administration, and related documents from Guantánamo and Iraq.
Amnesty International. At http://www.amnesty.org/en, accessed November 2012. AI has documented torture for decades and regularly posts information on its website about torture practices in countries throughout the world, including annual reports on the state of human rights around the globe.
Center for Constitutional Rights. At http://ccrjustice.org/international-law-and-accountability, accessed November 2012. The Center for Constitutional Rights focuses on promoting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights and its website contains extensive information and criticism of immigration sweeps, ghost detentions, extraordinary rendition, and other programs that deny individuals their right to due process. The website also includes descriptions of cases that have been brought against foreign officials and corporations for human rights abuses in US courts, as well as cases against US officials in foreign courts under the principle of universal jurisdiction.
Human Rights Watch. At http://www.hrw.org/topic/torture, accessed November 2012. This nongovernmental organization grew out of the 1978 Helsinki Watch to become a leading defender of human rights. HRW investigates human rights violations, including torture, in countries throughout the world and publishes investigative reports of country practices as well as annual reviews of human rights practices around the globe.
National Security Archive. At http://www.gwu.edu/~nsarchiv/, accessed November 2012. This nongovernmental organization, founded in 1985 by journalists and scholars to check rising government secrecy and based at George Washington University's Gelman Library, has a massive archive of declassified US documents. The award-winning archive includes tens of thousands of documents released through Freedom of Information and declassification requests, which has produced what one review called a “state-of-the-art index to history.”
World Organization Against Torture (Organisation Mondiale Contre la Torture, OMCT). At http://www.omct.org/, accessed November 2012. The OMCT is a coalition of international nongovernmental organizations dedicated to ending torture, summary executions, enforced disappearances, and all other cruel, inhuman, or degrading treatment. The OMCT website contains information about grave human rights violations and campaigns to protect victims and pressure governments to respect international human rights norms and prosecute the alleged perpetrators of human rights violations. The website also contains links to annual reports on the work of human rights defenders.