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08H57 - Tuesday 23 December 2014

Torture: a response to devil’s advocates

Tuesday 23 December 2014 - 08H57

 

On December 9th, the Democrat members of US Senate Committee on Intelligence released parts of a report aimed at uncovering the Central Intelligence Agency’s (CIA) practices within the Detention and Interrogation Program. The report was released after five years of data collecting and underlines a wide range of abusive and illegal treatment of detainees through the use of various forms of torture. As controversies are spiking and new fingers are being pointed, it is useful to remember that most of these practices were already known, although not acted upon, and that torture as an Intelligence practice is used all around the world, although it is strictly forbidden under international law.

A poll carried out in the United States by the Washington Post and ABC News reveals that almost all demographic groups in the US do not condemn torture in all circumstances. If we look at the number of countries still using torture (112 according to an Amnesty International report of 2013), it becomes even clearer how arguments in favor of torture, especially since the launch of the “war of terrorism”, have gained legitimacy in the eyes of many if it is carried out in the evasive name of security. At first sight, this might even seem true and justifiable. After all, who wouldn’t want to save innocent lives? These types of arguments, however, can be defused one by one…

 

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1. The Ticking Time Bomb Scenario – “Torture is justified when innocent lives are under immediate threat”

This scenario is probably the most widely used and accepted argument for torture. Marine Le Pen, the leader of the French right-wing party and whose popularity rating lies around 40% amongst the French population, explained it in an interview with BFM TV: « When you have a bomb going tick, tock, tick that’s going to explode in an hour or two and 200-300 civilian victims will be caught up in it, then it can be useful to make someone speak … however one can. »

First of all, the scenario is far from realistic and tries to score points by calling to people’s emotions. It is also an extreme utilitarian argument, in which, even with the risk of the person being innocent, his life or suffering is justifiable for the possible greater good. In reality, it doesn’t have much basis, is entirely hypothetical and relies on unfulfilled premises. Never has there been a situation in which one person knowing where a bomb is placed is being detained. Never has there been a case in which the time span remaining to prevent an attack from happening is actually known. Nor has there been any situation in which the interrogators know for sure that torture is the only way of extracting the information.

Most of the time, information is collected over time, through different people. Secondly, the argument puts a lot of weight on time pressure. This would mean that anything is justifiable if there is time pressure and if important information needs to be released. There would be no limits to what it acceptable. As an article in The Atlantic puts it bluntly, try to replace “torture” by “child rape”. Threatening someone to rape his children might actually make him talk more than the use of torture. Now use the argument of the ticking bomb in this context. Should there really be such an exception to all universally prohibited actions?

2. “The evolution of intelligence services makes it very unlikely to catch the wrong person”

This argument relies on the fact that the processes used within intelligence services, above all through the development of modern technologies and inter-agency co-operation, decrease the risk of detaining the “wrong” people.

This is not only naïve, it is also a dangerous assumption, even in democratic countries. The CIA has clear detention standards (Memorandum of Notification) and according to the recent report, more than 26 out of the 119 detainees were not fulfilling these standards. While some of the wrongfully detained suspects were the result of insufficient or incorrect information, others were tortured as a means of making other detainees talk. According to the report, “these included an ‘intellectually challenged’ man whose CIA detention was used solely as a leverage to get a family member to provide information”. In many other countries, such as Mexico or Egypt, detainees are being tortured because they are political opponents, journalists etc. The governments justify their actions as necessary because of national security and fights against terrorism. It is thus impossible to say that intelligence services will detain the “right” people, because who is seen as terrorists varies from one country to another…and even in democratic countries, the notion can be more than misleading.

3. “Under torture, the terrorist will end up telling the truth” 

True, torture puts the detainee under extreme situations of pain and stress, during which he becomes very vulnerable and dependent. It is often a long process in which the interrogator becomes extremely powerful over the detainee’s emotions and perceptions. Defendants of torture say that this psychological phenomenon, when exercised on a terrorist, will end up with a confession and the disclosure of important information.

Not exactly. Terrorists carry very strong ideologies and convictions. It is what drives them to do what they do and to be part of whatever movement they are part of. They know that they risk torture and have often been prepared for it. Their convictions are often higher than anything, including their own lives (remember suicide-bombers). Thus, torture will likely not have much effect on them and might even strengthen their hatred and determination. In addition to this, a terrorist has no interest of telling the truth, except for immediate alleviation of pain. Should he be released after disclosing correct information, he will probably be punished by his own group. Furthermore, Shane O’Mara, a Professor from Trinity College, Dublin, found that torture techniques such as waterboarding “cause severe, repeated and prolonged stress, which compromises brain tissue supporting memory and executive function.”

Thus, in many instances detainees end up disclosing false information.“Making the captive talk may become the end – not the truth of what the captive is revealing.”, says O’Mara.

According to the CIA report, one of the false information released “resulted in the capture and CIA detention of two innocent individuals”. Out of the 39 detainees who are known to have been subjected to torture, seven produced no intelligence at all. Concerning the information used for counterterrorism efforts, John Brennan himself admitted that “the cause and effect relationship between the application of those EITs [Enhanced interrogation techniques] and the ultimate provision of information is unknown and unknowable. »

4. “The Geneva Convention, the Convention Against Torture and the Universal Declaration of Human Rights don’t specifically prohibit the use of torture against terrorists”

While it is true that no specific mention is made of terrorists in these texts, the UDHR does state that “no one shall be subjected to torture”. In addition, the UN Convention Against Torture claims that “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture. » (Article 2.2). This leaves no doubt as to whether terrorism should justify the use of any form of torture. 

5. “Torture serves as a punishment for the guilty person”

Because the chances of a detainee actually being guilty exist, some will argue that because he is a “bad person”, inflicting him harm is justifiable. Not only does it save lives, but it also punishes the criminal. The “it-serves-him-right” argument might be accepted at first sight by those who believe that criminals should be punished to the extreme (and torture can also lead to death).

But what about the innocent detainees mentioned earlier? This will not only result in damaging life-long consequences for the unrightfully detained, but will also put their relatives into a context of fear and suffering – for nothing. Also, justifying the physical punishing of the presumed wrongful person is destructive to society. It perpetuates the mentality that for every crime, there is a fitting punishment.

Hegel pointed out the absurdity of such thinking, and his writings underline the fact that punishment is actually a form of revenge. Torture carried out by a State body implies that the State is carrying out revenge against a criminal who might not even be one. The true role of the State, however, is to make its citizens safe and to make society function in the best way possible. When it carries out sentences against convicted men and women through laws, it does so in a way that it would benefit society – let’s say, either by removing these people from the public space, or making them pay a fine in order to deter them from repeating the action. In the case of torture, if it should be seen as a punishment, it is an unlawful way of exercising revenge against someone, while not benefitting society, rather making it more violent and more blind to reality.

6. “It is the State’s social contract’ to protect its citizens”

This view emphasizes on the State’s role as the citizen’s protector, particularly in instances in which they are unable to protect themselves. People who are considered by the State as a “threat” would thus be excluded from this contract. This implies that terrorists, for instance, do not longer fall under State protection and do not see themselves attributed any civil rights granted by the State. The practical shortcoming of this argument is that international law still applies in this case. Also not to be forgotten is that some rights are considered as universal Human Rights, which are unconditionally inherent to human life. As mentioned above, the UDHR strictly prohibits the use of torture.

7. “Torture acts as a deterrent for others” 

This argument affirms that because of the risk of being subjected to torture, fewer people will engage in terrorist action or be reluctant to disclose information once they are detained. Former American Republican congressman tweeted: “I’m ok torturing terrorists & I want terrorists to know we’ll do anything to them.

The truth, however, is that torture doesn’t work as a threat. It actually reinforces terrorist propaganda and the idea that police and authority forces are not to be respected. Many terrorist groups have the conviction that western governments and mentalities are evil, and this is what motivates them to act against their rules. Exercising torture is not only inefficient; it reinforces the thought that drives terrorists in the first place!

8. “If torture is made legal, it can more easily be controlled” 

Some people argue that if torture would be legal, there could be control exercised over it and the most barbaric forms will be entirely prohibited and eradicated. Alan Dershowitz, an American lawyer, stated “If torture is going to be administered as a last resort […] to save enormous numbers of lives, it ought to be done openly, with accountability, with approval by the president of the United States or by a Supreme Court justice.” Other than the arguable justification of the ticking-bomb scenario, the problem here is how to decide which methods are more acceptable than others and when. Once an interrogator starts infringing the detainee’s human rights, how will he know where to stop? If intelligence agencies are breaking the law now, why would it be otherwise once torture is made legal?

 

Many further political, ethical and philosophical discussions can be originated from these facts. People defending the use of torture in some circumstance will often present themselves as defending the lives of innocent people and the security of the country. This misinformation is problematic with other similar issues, such as death penalty. However, once all the facts are brought to the table, it is very difficult to justify the use of torture in a convincing way. The Convention Against Torture has been signed by 156 countries and ratified by 81, including the US. This means that elected parliaments have voted for this subjection to international law. Why is it that such democratically made decisions are constantly ignored in practice? Hopefully, the day will come when states and individual actors will be made accountable for going against domestic law, international conventions and international criminal law. As John Pilger puts it when asked about the CIA report: “Where are the prosecutions? That’s all that matters now, where are the prosecutions?”

Everything else is missing the point.