Is Torture Ever Justified?

excerpted from the book

Tainted Legacy

9/11 and the Ruin of Human Rights

by William Schulz

Thunder's Mouth Press, 2003, paper


... one reason electroshock weapons, such as stun guns, have become more and more popular around the world, including in the United States, is because they leave no marks. One push of the button. No fuss, no mess.

Common as torture is (Amnesty International has documented the torture or ill treatment of prisoners in at least 130 countries), no country has ever acknowledged that its use is official policy.

Indeed, the practice is banned by one human rights convention after another, beginning with the Universal Declaration of Human Rights and including the International Covenant on Civil and Political Rights (ICCPR). The Convention against Torture and Other Cruel, Inhuman, and Degrading Treatment or Punishment (CAT) was adopted by the U.N. General Assembly in 1984 and has been ratified by 129 countries, including the United States in 1994. It defines torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining information . . . or confession:]and the convention makes clear 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 for torture." Torture is, in other words, one of those nonderogable rights that are prohibited absolutely under all circumstances. That is one reason why, under international law, torturers are considered hostis humani generis, enemies of all humanity, and why all countries have jurisdiction to prosecute them, regardless of where the torture took place.

Despite this universal prohibition, the case for using torture under certain circumstances has begun to receive a more and more respectable hearing since September 1 I~ 2001 and not just in countries that have rarely displayed many scruples about the question. Writing in Newsweek shortly after the attacks, for example, Jonathan Alter, a self-identified liberal columnist, admitted that his "thoughts [were] turning to . . . torture" and that, while "we can't legalize physical torture . . ., we need to keep an open mind about certain measures to fight terrorism . . . we'll have to think about transferring some suspects to our less squeamish allies, even if that's hypocritical.'' In January 2002 Bruce Hoffman, director of the Washington office of RAND, contributed a piece to The Atlantic Monthly called "A Nasty Business," in which he reassured readers that he was "never bidden to condone, much less advocate, torture," but then went on to say that "I recall the ruthless enemy that America faces and I wonder about the lengths to which we may yet have to go to vanquish him." The most forthright voice urging a reexamination of our aversion to torture, however, belongs to Professor Alan Dershowitz of Harvard Law School, a longtime champion of civil liberties, who came up with the idea of court-sanctioned "torture warrants' to legitimize behavior he thought inevitable anyhow.

These gentlemen did not have to wait long to see their speculative notions take on the apparent raiment of reality. As early as October 2001, the Washington Post reported that American officials were frustrated by the silence of jailed Al Qaeda suspects and might have to resort to "pressure tactics" or extradition to countries "where security services . . . resort to torture."' Over the next year or so, as growing numbers of terrorist suspects fell into American hands, reports began to leak out that the United States had opted for exactly that. The Christian Science Monitor claimed in July 2002 that the United States was shipping suspects to Egypt, Syria, and Jordan-countries that "use torture, which . . . extracts information more quickly than more benign interrogation methods" and in December 2002 the Post broke a major story describing "stress and duress" techniques employed at the U.S.-occupied Bagram Air Base in Afghanistan. "Stress and duress" included such things as keeping black-hooded prisoners standing or kneeling for hours, forcing them to maintain "awkward, painful positions," and depriving them of sleep with a twenty-four hour bombardment of light. "If you don't violate someone's human rights some of the time," one official said, "you probably aren't doing your job." The Post story also confirmed the earlier reports that prisoners were being transferred or "rendered" to countries in which torture was a common interrogatory practice. 'We don't kick the [expletive] out of them," another official was quoted as saying. "We send them to other countries so that they can kick the [expletive] out of them."

A few months later the New York Times elaborated, describing what "senior American officials'' called "acceptable techniques like sleep and light deprivation and the temporary withholding of food, water, access to sunlight, and medical attention." Two detainees in U.S. custody at Bagram Air Base died of "blunt force injuries" in what a military pathologist listed as homicides and, while those deaths are the subject of an investigation, most of these reports of torture were met initially with perfunctory denials from the Bush administration. President Bush himself assured the U.N. High Commissioner for Human Rights that the "U.S. has not and will not use torture in interrogating prisoners" but said nothing about "acceptable techniques" such as those described by the Times, which the U.S.A. may not regard as torture, and nothing about the transfer of prisoners to other countries. Was it possible that the United States was employing tactics the use of which it had long denounced around the globe and hardly being apologetic about it? Nor was there much of an outcry from the American people. But then in October 2001, 45 percent of Americans had told pollsters that they approved of "the torture of known terrorists if they know details about future terrorist attacks.'' Obviously, Americans' attitudes toward their government's intenhonal use of brutality ha:¢ changed mighhly.

That was because Americans were frightened and the government had led them to believe that the applicahon of "stress and duress" was one important way it could help to make them safer. It was not, presumably, that the suspects were being tortured for gratuitous or sadistic reasons or to make a political point, or for revenge or to set an example that would discourage other terrorists from following the terrorist path-all motivations that have prompted other instances of torture around the world. It was purely, or so American officials claimed, to extract intelligence in order to ward off future attacks.

The situation, then, was a variation on the classic philosophical scenario-the case of the ticking bomb. Dershowitz had premised his arguments for torture warrants on the same hypothetical: suppose the authorities are holding a suspect who knows where a ticking bomb is located, a bomb that will kill hundreds or thousands of people if it explodes. Would they be justified in torturing the suspect to procure the information and thereby save innocent lives? Virtually every "introduction to ethics" class takes up the same question, a question that holds enormous fascination, command, and now perhaps direct relevance for large numbers of people. Indeed, if we human rights advocates cannot respond adequately to this challenge, the hope that we can persuade governments to stop using torture and citizens to stop encouraging them will be utterly futile.

" I want no prisoners," demanded American Gen. Jacob Smith of his soldiers. "I wish you to kill and burn, the more you kill and burn the better it will please me."

The French were notorious for using torture against the National Liberation Front (FLN) during the Algerian war. Bruce Hoffman admits that the "sheer brutality" of their torture "alienated the native Algerian Muslim community. Hitherto mostly passive or apathetic, that community was now driven into the arms of the FLN, swelling the organization's ranks and increasing its popular support." If Israel's experience is any guide, the fact that the authorities may be able to prevent one deadly incident through torture or ill treatment of a suspect is no guarantee of an end to the cycle of violence. Indeed, such treatment may even help perpetuate it. As Dr. Ruchamas Marton, the founder of Israel's Physicians for Human Rights puts it, those subjected to torture "are broken after the experience.... Their families . . . want to take revenge.'' Or they themselves do. One Palestinian teenager tortured at the Gush Etzion police station in 2001 declared that, though he had been arrested for throwing stones at settlers' cars, the degradation he had experienced in prison had made him want to become a suicide bomber.

Those 45 percent of Americans who reported in October 2001 that they approved of torture were approving of the "torture of known terrorists if the terrorists know details about future terrorist attacks [emphasis added]." But how do we know for sure who is a "known terrorist" or that they "know details"? Isn't that exactly what the torture is presumably designed to find out? The reason torture is such a risky proposition is exactly because it is so difficult to tell ahead of time who is a terrorist and who is not; who has the information and who does not; who will give the information accurately and who will deceive; who will respond to torture and who will endure it as a religious discipline.

What if there is only a 50 percent chance the suspect has the information we seek? Is torture justified then? What if it is only a 10 percent chance? The fact is that many people suspected of being terrorists turn out not to be, as our experience with the 1,100-some detainees taken into custody after September 11 has proved so well. What if those innocent people had been manhandled even more than they were? What more surefire way could we imagine to foster resentment in the communities from which they came-the very communities whose citizens are potentially the source of exactly the kind of inside information about terrorist operatives that we need to stop terrorism in the first place?

Many experts on interrogation believe that torture is one of the least effective ways to gain accurate information from suspects. A 1963 C.I.A. training manual observed that "interrogatees who have withstood pain are more difficult to handle by other methods. The effect has not been to repress the subject but to restore his confidence and maturity." On the other hand, if the torture victim "cracks," he is likely to say anything to make the pain stop. Insists Eric Haney, a former interrogator for the United States A my, "Torture just makes the person tell you what they think that you want to know so you'll stop hurting them." The French were unabashed in their employment of torture in Algeria, even though the names of the terrorists yielded up by its victims were, as they themselves later admitted, "not always necessarily the right name." Abdul Hakim Murad, the terrorist who talked in the Philippines, provided information about the airliners, but he also claimed to be responsible for the bombing of the Federal building in Oklahoma City. Many of the false code orange terrorist alerts the United States has experienced in the past two years have been prompted by bad information passed on by detainees under harsh questioning.

And then there is another slippery slope. For if it is legitimate to torture a terrorist to obtain crucial information to save hundreds of lives, is it also morally defensible to torture the terrorist's wife or children? How about his aged mother? How about his whole family? Where do we stop? At what point do we truly give up our souls?

In 1999 the United States issued its required report to the United | Nations Committee Against Torture. "Torture is prohibited by law throughout the United States," that report said.

It is categorically denounced as a matter of policy and as a tool of state authority. Every act constituting torture under the [Convention Against Torture] constitutes a criminal offense under the law of the United States. No official of the government . . ., civilian or military, is authorized to commit or to instruct anyone else to commit torture. Nor may any official condone or tolerate torture in any form. No exceptional circumstances may be invoked as a justification of torture.

Tainted Legacy

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