Should the use of torture be reserved for the most extreme cases involving suspected terrorists?
The writings of the philosopher, Jeremy Bentham are at times invoked to present the ‘ticking bomb’ argument as a moral justification for the use of torture on a terrorist. Davies posits the argument in the following way :
”given variously specified conditions, the police or state intelligence services would be morally justified in inflicting extreme physical pain on a terrorist whom they believed to be withholding information about the location of a bomb that was shortly to go off in a crowded city” (Davies 2012, p.1)
Such a ‘thought experiment’ directly challenges the ‘absolutist assumptions about the immorality of torture’ (Davies 2012, p.1).
Wouldn’t the infliction of horrendous pain or even death upon a terrorist and perhaps his or her family to extract information that might possibly save hundreds or thousands of human lives be morally justifiable;
conversely, would the greater evil be to respect the human rights of one at the expense of saving thousands of lives?
These binary oppositions fail to address the uncertainties that underpin the justifications for the use of torture. For instance, whether the infliction of severe enough pain on the body of a terrorist guarantees that his or her victims will be saved;
Would such interrogational torture be justified by a ”útilitarian calculation” (Davies 2012, p.1) that satisfies the fundamental Benthamite axiom that is ”the measure of right and wrong’: ‘the greatest happiness of the greatest number?” (Burns 2005, p.46).
Do certain recognizable evils, such as torture, possess the potential for becoming justifiable in a world in which ‘moral shades of gray’ exist?; such a potentiality contingent upon a State’s assessment of what is predicted to be the achievement of a future happiness of society.
As Bentham argues:
”For the purpose of rescuing from torture these hundred innocents, should any scruple be made of applying equal or superior torture, to extract the requisite information from the mouth of one criminal, who having it in his power to make known the place where at this time the enormity was practicing or about to be practiced, should refuse to do so?
To say nothing of wisdom, Could any pretence be made so much as to the praise of blind and vulgar humanity, by the man who to save one criminal, should determine to abandon a hundred innocent persons to the same fate?” (quoted in Davies 2012, p.4)
The Italian theorist, Beccaria, however, opposed the use torture. He argued:
”The result of torture…is a matter of calculation, and depends on the constitution, which differs in every individual, and it is in proportion to his strength and sensibility; so that to discover truth by this method, is a problem which may be better solved by a mathematician than by a judge, and may be thus stated:
The force of the muscles and the sensibility of the nerves of an innocent person being given, it is required to find the degree of pain necessary to make him confess himself guilty of a given crime” (Beccaria, C. (1995). Of torture. In R. Bellamy (Ed.) & R. Davies)
Beccaria proceeded to question the reliability of confessions obtained by the infliction of immense pain on a victim of torture by asking whether ”pain should be the test of truth, as if truth resided in the muscles and fibres of a wretch in torture. By this method the robust will escape, and the feeble be condemned” (Beccaria, C. (1995). Of torture. In R. Bellamy (Ed.) & R. Davies) . He argued that:
”Every act of the will is invariably in proportion to the force of the impression on our senses. The impression of pain, then, may increase to such a degree, that, occupying the mind entirely, it will compel the sufferer to use the shortest method of freeing himself from torment.
His answer, therefore, will be an effect as necessary as that of fire or boiling water, and he will accuse himself of crimes of which he is innocent: so that the very means employed to distinguish the innocent from the guilty will most effectually destroy all difference between them.” ( Beccaria, C. (1995). Of torture. In R. Bellamy (Ed.) & R. Davies) .
Perhaps if one probes deeper into the underlying reasons for the use of torture by States such as the US against detainees in Guantanamo, one discovers a risk and security culture; one that weaves a meta-narrative of what is perceived by state powers to be an existential threat to the citizens of a state.
Part of the justification presented by states for the use of torture could be the perception woven into such state narratives that such suspected terrorists or political dissidents who align themselves with a political party that opposes a government are to be ‘morally excluded’ from the majority in society and are therefore ‘eligible targets of various forms of harm’ (Opotow).
Former President of the US, George Bush , for instance, vetoed legislation in March, 2008 extending the torture torture ban applicable the CIA . He justified his actions by arguing:
”Because the danger remains, we need to ensure our intelligence officials have all they need to stop the terrorists . . . this is no time for Congress to abandon practices that have a proven track record of keeping America safe.” ( Wisnewski, Jeremy, and R. D. Emerick. 2009, p.120)
The reality of the continuing use of torture even by states that are signatories of the UN Convention Against Torture 1984 is that such state violence continues to be legitimized due in part to the definitional problems faced with the use of the term ‘torture.’
The British Criminologist, Stan Cohen, alludes to the semantic battles fought in various domestic and international courts by those states who deny that their techniques involving detention, interrogation and sensory deprivation of detainees amount to torture.
Additionally, Rene Bruin notes that ‘the obligation on non-refoulement under Art3 of the ECHR and Art7 of the ICCPR and Art3 of the Convention Against Torture is absolute.’
Yet there are liberal democracies that continue to promote ‘a torture culture’ ( Luban, quoted in Opotow), underpinned by the consequentialist idea that the end justifies the means.
The sober reality is that such violation of human rights ‘remain as indelible stains’ and ‘do not disappear from public conscience over time.’ ( Opotow) .
As John Le Carre cautions, ‘don’t imagine you’ll be unscathed by the methods you use… the end may justify the means ..but there is a price tag to pay, and the price tends to be oneself.’ ( quoted in Opotow)
References
Opotow, Susan, Peace and Conflict: Journal of Peace Psychology, Vol 13(4), Nov, 2007. Special Issue: Torture is for amateurs: A meeting of psychologists and military interrogators. pp. 457-461.
Rene Bruin; Kees Wouters (2003))Terrorism and the Non-derogability of Non-Refoulement, 15 Int’l J. Refugee L. 5 .
Jeremy Davies, The Fire-Raisers: Bentham and Torture 19: Interdisciplinary Studies in the Long Nineteenth Century, 15 (2012)
Wisnewski, Jeremy, and R. D. Emerick. The Ethics of Torture, Bloomsbury Publishing Plc, 2009.
Beccaria, C. (1995). Of torture. In R. Bellamy (Ed.) & R. Davies (Trans.), Beccaria: ‘On Crimes and Punishments’ and Other Writings (Cambridge Texts in the History of Political Thought, pp. 39-44). Cambridge: Cambridge University Press
Essays on Human Rights , Law and International Relations 