The “War on Terror” has prompted a great deal of discussion about the use of torture as a means of extracting information from those suspected of having perpetrated past acts of violence or planning future ones. Despite the years that have passed since the attacks of September 11, 2001, for both citizens and government officials there is still a strong tension between the competing emotions of anger, revenge and depression; it seems increasingly difficult to adhere to international norms governing a nations moral and legal obligations to protect its citizens from grave danger while continuing to support individual freedoms, while torture has historically been illegal in the U.S. the threat of terrorism coupled with the escalation of violence in Iraq has led to executive and judicial justification for the use of cruel and inhumane treatment. Investigations into the handling of prisoners at Guantanamo Bay and Abu Ghraib have caused both Americans and observers abroad to ask how a country that once promoted human rights could have allowed such abuses to occur and, having done so, whether the U.S. retains any moral authority in the international community. This paper will explore the many issues surrounding the use of torture in the aftermath of September 11th. Interrogational torture shall be explained from the following standpoints: legal, ethical, and effectiveness. The central research question is whether or not torture is an effective means of dealing with threats such as terrorism. More specifically, this paper will attempt to demonstrate that torture is not an effective means of interrogation and thus does not provide useful information. In order to test this hypothesis, several other questions will need to be answered: What is torture? How is torture viewed ethically and legally? What are the arguments for and against torture? What are the ways torture can affect national security?
Introduction
I. America’s current effort against terrorism highlights an enduring legal and ethical dilemma surrounding the use of torture. The need to contain the terrorist threat has led the U.S. and others to indefinitely detain suspected terrorists in prisons at Guantanamo Bay, Cuba, and elsewhere around the world. During their detention, many prisoners have complained of torture at American hands, inciting an emotional domestic debate about whether or not American, or any other nation, should torture or even needs to torture to win an asymmetric war. This situation reflects a classic moral dilemma over the use of torture, which many people find reprehensible, but others argue the decision not to torture may endanger many more lives because terrorist plots to kill will go undiscovered (Greenberg 2006).
Review of the Literature
I. Categories of Torture
In general, there are two categories of torture: punitive and interrogational. For the purpose of this paper “torture” shall refer to interrogational torture. Interrogational torture is for the purpose of extracting information. Here, the assumption is that interrogational torture differs from punitive torture because interrogators use it to recover information considered critical to a higher cause (e.g. to prevent a large number of innocent deaths or for national survival). While punitive torture (torture used to punish or persuade) has no definite termination criteria. There is a fixed end state to interrogational torture; when the interrogator retrieves the required information.
II. Definitions of torture – International Law and Conventions
A. There have been many published definitions of torture before and since its emergence at the forefront of the public conscience after the events of September 11th. “Torture” is a crime
under international law and the laws of most countries. International law allows no justification, no emergency situation that would justify its use. After the approval of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention) by the U.S. Senate, and in light of decades on constitutional interpretation, the same would appear to be true for the U.S. Some of the foundational international law documents on torture are the Geneva Conventions, the International Covenant on Civil and Political Rights, and the United Nations Convention Against Torture (1994). The Geneva Conventions provide broad protections:
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Any person detained, whether a prisoner of war, unprivileged belligerent, terrorist of non-combatant, has at least minimum guarantees “in all circumstances” “at any time and in any place what so ever” under common Article 3. Such rights include the right to be “treated humanely,” freedom from “cruel treatment and torture,” and freedom from “outrages upon personal dignity, in particular, humiliating and degrading treatment,” and minimize human rights to due process in case of trial (CRS Report for Congress 2004).
B. Another meaning of torture is outlined by the description given by the U.S. Senate when it ratified the United Nations Convention Against Torture in 1994. The senate defined torture as follows in U.S. Code 18 Section 2340:
1. The United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting the intentional infliction or threatened infliction of severe physical pain or suffering;
2. The administration or application, or threatened administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
3. The threat of imminent death; or
4. The threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances (U.N. Conventions 1994).
In reviewing the various Conventions and International laws one might believe that torture is banned absolutely, but this perception is false. For example, the Geneva Conventions do not cover all the forms of armed or military action. They deal primarily with armed conflicts between and among nations that became parties to the Conventions and with the occupation of a state party’s territory by the forces of another nation. Thus, Al Qaeda does not in any respect resemble a state, and therefore not a subject of international law. There are many scholars who contend that the September 11th attacks have not driven any wealthy democracy to completely reverse itself and make torture legal, but they have encouraged a bending of the rules and definitions as well as the turning of blind eyes.
III. Torture Memos
Since September 11, 2001, the argument over what constitutes torture has flared. In August 2002, in response to the Central Intelligence Agency’s (CIA) request for clarification on permissible interrogation techniques, Assistant Attorney General Jay S. Bybee provided an inflammatory memo to the President’s office of legal counsel which alarmed the public. It stated that only physical pain “equivalent to that accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death,” or mental pain that resulted in “significant psychological harm of constituted torture.” Also, the memo argued that as a wartime President whose main duty was to protect the American people, he had the power to override both domestic and international law. The public viewed the memo as a self-serving attempt by the Bush administration to narrow the definition of torture in order to allow interrogators some ominous flexibility during interrogations and relieve them of the constraints of the Geneva conventions (Greenberg 2006).
A. Memo Rescinded
In December 2004, Acting Assistant Attorney General Daniel Levin released a reconsideration of the issue which rescinded the 2002 memo in its entirety and publicly reaffirmed America’s subscription to a complete torture ban as stated in the U.N. Convention Against Torture. The 2004 memo clearly stated the U.S. deemed torture “abhorrent both to American law and values and international norms” (Smith and Eggen, 2004). Moreover, many guiding sources contain restrictions outlawing poor treatment in general, for example, in addition to defining torture, the U.N. Convention Against Torture also forbids engaging in “cruel, inhuman, or degrading treatment” (Heymann and Kaygen 2004). Although the U.S. constitution outlaws cruel and unusual punishment, it is generally accepted judicially that this implies a broad moral standard which prohibits unusually cruel treatment.
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President Bush and his colleagues have always maintained that America neither authorizes nor condones torture. But the President has always been vague about the grey area between torture and more moderate pressure. Soon after suspected terrorists were first sent to Guantanamo in January 2002 he said that America’s armed forces would treat the detainees “humanly” in a manner consistent with the Geneva Conventions, but only to the extent appropriate and consistent with military necessity. It was only after the Supreme Court’s ruling in Hamdan v. Rumsfeld (2006) did the Bush administration acknowledge that all detainees, wherever they might be held, were protected by Common Article 3 of the Geneva Conventions, which bans all forms of cruel, inhuman or degrading treatment as well as torture.
IV. Ethical and Moral Considerations
The morality of torture is similar to the morality of capital punishment in the following respects: they are in principle, and probably in practice, certain rare instances in which either would be morally justified. At the same time, morality itself demands that both be categorically banned in law. Torture can be morally framed as a means-versus-ends conflict. Here we ask ourselves is some information so vital, so valuable, that we should consider torture even if it is morally reprehensible. There are those who believe that coercive interrogation is supported as an essential tool under conditions of imminent threat of large scale violence against Americans. But this argument assumes that torture will get the information we want if we could just get around our discomfort of deliberately inflicting pain or suffering on a suspect. In this discussion, torture is scaled against two criteria: human rights and effectiveness.
A. Morality
The question of moral acceptability does not provide easy answers. Those who take a utilitarian approach can justify the use of torture in the face of immediate threat. The notorious hypothetical “ticking time bomb” situation is taken as illustrative of a catastrophic circumstance that may justify torture. Here the person under interrogation knows the location of the bomb set to explode endangering thousands of lives and refuses to divulge the information necessary to remove or defuse the bomb. Many commentators acknowledge that the ticking time bomb scenario is improbable and artificial but believe that it needs addressing because since September 11th leaders have used this situation as a narrative framework and as justification for modifying prohibitions on international law regarding torture as well as a justification for curbing civil liberties more generally (Parry 2004).
From the “means” perspective of ethical formalism, torture is unacceptable. The easy willingness to torture in the pursuit of information is inconsistent with all doctrines of human rights. The U.N. Convention Against Torture rejects torture under any circumstances. The use of torture has implications for one’s perceived moral identity. When we use torture, it tells us as much about ourselves as about the people we use it against. At the core of the issue things become confused because the “good guys” are carrying out the same acts that make the “bad guys” bad. Torture can mobilize our enemies, justifying their violent resistance to the evil of an enemy who uses torture. In the example of interrogation carried out at Abu Ghraib, incidents of torture have provided a justification for violence against the U.S. The policy implication of this is that interrogations should be carefully documented in order to disprove torture accusations. It is crucial that the U.S. does not create an environment that encourages mistreatment in the name of the ends justifying the means, when gathering intelligence about the enemy.
B. Effectiveness
In researching the hypothesis that torture is not an effective means of interrogation and thus does not provide useful information, three main themes exist that are prevalent in the literature. Most authors base their arguments on evidence pertaining to at least one of the following areas: legal considerations, ethical considerations, and the effectiveness of torture. Most of the recent scholarly writing on torture has been done by international lawyers and legal scholars. Some of them defend interrogational torture while others do not. Moreover, highly trained philosophers writing about torture are also divided in their opinions. The acquisition of informing through interrogation traditionally has been a central component of military and intelligence operations. The need to extract actionable intelligence has, if anything, become more salient since September 11, 2001. A dispersed and “different kind” of enemy with no flag or uniform, an inadequate understanding of this new foe’s organization and operations, and pressure to disrupt future surprise attacks have made interrogation fundamental to the War on terror. Unlike ordinary police interrogation, interrogation undertaken to acquire intelligence information is not designed primarily to elicit admissions or information that may be used in a conventional prosecution. As noted by Central Intelligence Agency (CIA) interrogation manuals, “Admissions of complicity are not…..ends in themselves but merely preludes to the acquisition of more information” (Levi 2009 p. 1435). The interrogation goal, as reflected in U.S. Army interrogation manuals, it too “obtain the maximum amount of usable information ….in a lawful manner, in a minimum amount of time” (Levi 2009 p. 1436). This simply stated objective expresses well the tension inherent to interrogation between obtaining timely intelligence and observing the legal constraints that are understood to apply.
The effectiveness of torture argument is based on the straightforward logic that individuals, fearing for their personal welfare, will provide whatever information they can in order to avoid harm. But in practice this notion is difficult to sustain for a number of reasons. One of the first questions to address is whether torture is an effective means of dealing with threats such as terrorism. Most people assume that torture is necessary to make hardened terrorists talk. Michael Ignatieff (2004) maintains that “while some abuse and outright torture can be attributed to the sadism of individuals, poor supervision, and so on, it must be the case that other acts of torture occur because interrogators believe, in good faith, that torture is the only way to extract information in a timely fashion” (25). Mark Bowden offers some support for this perspective, describing a number of ways in which torture has compelled suspects to talk. But at the same time, Bowden notes that results vary from person to person; while torture works in some cases, it does not always work (Bowden 2003). Similarly, Stephen Budiansky (2005) also refers to “widespread disdain” among experienced military interrogators for abusive forms of interrogation: “many old hands in the business have pointed out that abusing prisoners is not simply illegal and immoral; it is also remarkably ineffective” (32).
While controversy over the effectiveness of torture continues, the fact that a number of experts criticize the resort to harsh techniques and praise non-coercive methods tends to undermine the case for torture as a more generalized practice. Here Eitan Felner (2004) raises the objection that torture may be necessary in exceptional circumstances when there is no time to use “gentle persuasion.” In “Torture and Terrorism: Painful Lessons from Israel,” Felner looks at this objection in his analysis of the 1987 report by Israel: Commission of Inquiry, which held that coercive interrogation tactics were justified in order to obtain crucial information that could save innocent lives, such as the location of a bomb meant to be used in an act of mass terror against civilians (30-31). Felner points out a number of criticisms of this argument. First, he cites the criticism that the “ticking time bomb” scenario rests on a set of assumptions that are extremely unlikely. It presumes that there is a bomb that will explode if not diffused; the suspect knows where the bomb is at the time; the suspect will provide the correct information only if tortured; and the information will enable us to discover and disarm the bomb in time, and so forth. Felner concludes that given the implausibility that all these conditions would be met the ticking bomb case assumes rather than proves that torture is an effective means to avert a clear and present danger, and as such it fails to provide a pragmatic basis for decision making (Felner 2004).
There are many articles about the actual effectiveness of torture as an interrogation technique and many say that it works, but don’t cite any specific studies to back up these assertions that it does not with case studies and other documentation. Torture has been used almost constantly throughout history. Western legal tradition used torture until its use was banned in the eighteenth century (Langbein 2004). People then, as they do now, often question the effectiveness of using torture for interrogation and what are the lasting effects on the tortured as well as the torturer. Designed to eliminate the requirement for conviction of testimony of two eyewitnesses, torture was used in Europe until the eighteenth century. Torture was intended to be permitted when a half proof (one eyewitness testimony) was established. Evidence obtained by torture was then supposed to be verified. Unfortunately the intentions fell far short of actual practice. In the end, suggestive questions were often used, verification of information was not completed, many innocent persons often appeared guilty, and those who confessed under torture often recanted while in court and then had to be re-tortured. In short, torture did not provide reliable information, and the practice was abandoned (Langbein 2004). The debate of effectiveness continues today. Those against the use of torture say that it is not an effective method for various reasons and cite CIA, FBI, and U.S. military sources for reasons why interrogation does not work. In the words of one senior army interrogator, “Beyond the moral imperative, the competent interrogator avoids torture because it is counter-productive and unreliable….. In my two decades of experience as an interrogator, I know of no competent interrogator that would resort to torture. Not one.” (Bennett 2006). In a recent Statement on Interrogation Practices, twenty army interrogators and interrogation technicians, representing over 200 years of interrogation service and experience from Vietnam to Afghanistan, Guantanamo Bay, and Iraq, unequivocally contradicted the proposition that torture is necessary to win the “war on terror.” According to them, harsh techniques are indicative of inexperience or untrained interrogators and often create anger within the subject leading the interrogator to lose control. They also found that the most effective interrogation techniques do not use torture but rather rely on the subject’s cooperation to obtain the desired information (Bauer 2006).
Some scholars that question the “effectiveness” of torture often are referring to it in the strategic sense. To torture a suspect once who consequently reveals like-saving information which then is exploited successfully describes an instance in which torture is tactically effective. But in the context of asymmetric warfare, such as the current war on terror, effectiveness refers to the degree torture lessens the asymmetric threat or gives to those threatened a strategic advantage over time. There are some scholars who propose it is important to consider the long-term view when determining effectiveness, since the dynamic political consequences of torture last years, decades, or longer. These scholars offer two viewpoints to support this definition. First is the idea of strategic incentive, whereby a nation’s behavior during asymmetric conflict to some degree determines how its enemies will behave. Heather MacDonald best conveys this point when she outlines that the consequences of torture, and hence torture policies, are strategic in nature. She claims “were the U.S. to announce that terrorists would be protected under the Geneva Conventions, it would destroy any incentive our ruthless enemies have to comply with the laws of war” (Greenberg 2006 p. 95). Affecting terrorists will to comply with the laws of war is a strategic effect since it refers to their general behavior over a long period of time and in broad terms. The incentive or disincentive effect she describes will be apparent to the U.S. as it fights terrorists around the globe for years to come.
Philip Heymann and Juliette Kayyem (2004) also describe how the implications of torture are strategic. They write “unless the person who is tortured is then killed torture creates martyrs who are living recruiters of new terrorists. Torture violates a historic understanding of how prisoners are to be treated and defies treaties and statues: Here, Heymann and Kayyan are referring to the strategic nature of the consequences of torture. They maintain that those consequences will inevitable determine its enduring effectiveness or ineffectiveness. It is important to define the effectiveness of torture in strategic terms because torture yields long-term consequences for states that are beyond the immediate context (2).
Since September 11th the scholarly proponents of a legally sanctioned system of coercive interrogation appear, without detailed analysis, to be convinced that it is an effective means of gathering intelligence. For example, Bagaric and Clarke (2005) claim: “The main benefit of torture is that it is an excellent means of gathering information” (581). In their analysis of the possible drawbacks and benefits of coercive interrogation, Posner and Vermeule (2005) cite evidence that they argue “strongly suggests that coercive interrogation saves lives” (2). Likewise, Alan Dershowitz (2002) claims that torture “sometimes works, even if it does not always work” and that “there are numerous instances in which torture has produced self-proving, truthful information that was necessary to prevent harm to civilians” (137). By contrast others have argued that it is ineffective. For example, in a recent article and without detailed analysis of evidence, Harold Koh (2005) stated, “To be sure, there is abundant evidence that torture is not effective either as an interrogation tactic or an information extracting device” (641).
Conclusion
Torture is almost universally considered legally and morally unacceptable, and it is strategically detrimental to the nations who use it. Although there have been many definitions of torture, it has proven difficult to define as it is to police. There is a constant debate over whether or not torture can yield the critical intelligence information required to fight an asymmetric war. Although it may have plausibly aided tactical victories in the past against insurgents, the application of torture has also held negative strategic consequences that affect a state’s political and moral status. The problems associated with torture and coercive interrogations that have been discussed in this paper suggest that scholarly and judicial claims regarding its effectiveness must be treated with caution. Much of the discussion in this area tends to draw on limited sources, often without detailed analysis. There are two conclusions that can be drawn from this analysis. First, coercion does sometimes work. There are enough examples of coercive interrogation apparently leading to the disclosure of life-saving information that it is simply not credible to argue that it never works. Second, despite the fact that it does sometimes produce life-saving information, there are also serious and inherent problems with the use of torture. The consequences in terms of the worldwide reaction and the damage done to our moral standing are incalculable. For these reasons, many scholars maintain that torture is neither an effective means of interrogation or an effective strategic tool in asymmetric warfare and we must take every reasonable measure we can to undo the damage torture has done.
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