Is Torture Ever Justified?
excerpted from the book
9/11 and the Ruin of Human
by William Schulz
Thunder's Mouth Press, 2003,
... 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
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
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.