The Moral Aspect Of Torture
Introduction
When Khalid Sheikh Mohammed, the operations chief of the al-Qaeda and close associate of Bin Laden, was captured into U. S. custody, it was expected that the information, if any, forced out of him would bring sweeping arrests and any future terrorist plots would be quickly dismantled. However, as retired Marine lieutenant Bill Cowan had said, “Instead what we see is an arrest here, then a few months an arrest there”. There is a great misconception surrounding torture, in which it acts as a shortcut to obtain intelligence in a short amount of time, information of which is necessary to prevent harms in the ‘war on terrorism’. While those that favour the use of torture are aware of its moral wrong, literature attempts to justify using torture based on the problem of the ‘ticking time-bomb’ of which is inherently flawed with artificial aspects that one cannot accurately replicate in real life. With that in mind, this essay aims to side with the argument that torture ought to be morally wrong. But it can be permissible under the duress of supreme emergencies, while at the same time must remain illegal. It will also argue that such permissibility should not be based on the ticking bomb problem as the basis for exceptional use of torture, as there are more costs than benefits in employing the use of torture, and the fear of its institutionalisation.
The paradigm of torture has proved difficult to define as there is a fine line between the concepts of torture, coercion and manipulation, and the techniques employed that would specifically be counted as the act of torture. Yet, the UN Torture Convention defines torture as: “Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from information, punishing him, intimidating or coercing him, when such pain or suffering is inflicted by or at instigation of a public official or other person acting in an official capacity. ”
There have been several instances where torture has successfully resulted in reliable information that was necessary to prevent harms to civilians. One of which, as recounted by The Washington Post, involved the torturing of a terrorist by the Philippine authorities to disclose terrorist plots to drive 11 commercial airlines with thousands of passengers into the Pacific Ocean, and a plot to fly an explosive-filled Cessna into CIA headquarters. But what is it about torture that makes it morally wrong?
A cost vs benefits analysis of torture
According to McMahan (2015), torture can only be morally justified if it is used to gain information and can even be obligatory if such information could prevent an individual from harming innocent civilians. McMahan also asserts killing to be worse than torture, and as a ‘lesser evil’, torture can be morally justified in the prevention of the death of innocent people. While it is commonly assumed for killing to be a greater harm, it is rather simplistic to assert that torture that can also sometimes be permissible as it presumably possesses fewer harms than being killed. The difficulty in weighing the moral consequence between killing and torturing an individual lies in choosing amongst the ‘lesser evil’, in cases where torture does not always work and can sometimes produce unreliable information. When the Israeli General Security Service interrogated 23,000 Palestinians and tortured some between 1987 and 1994, it did not result into the de-escalation of terrorism within the country.
Moreover, if a lesser harm is indeed sometimes permissible, the only misconception is to presume that the only consideration worth noting is the amount of harm done. If just-combat killing is truly a greater harm than torture, then is it possible for torture to be on similar standards as killing in a just-combat? One of the fundamental principles for jus in bello lies in the distinction of combatants and non-combatants, in which violence should not be directed at non-combatants, and that those who were killed had given up their right not to be killed. If the amount of harm done can be restricted for combatants, surely the amount of suffering can be minimised. However, torture fails to establish itself as being a ‘fair fight’, in which the captive has no means of defence and is thus powerless before the torturers.
However, in the case that the victim is an active responsible threat, that does not render him or her as defenceless considering their leverage to inflict assault on the other innocent civilians if not the torturer, by withholding information of the imminent threat. There is also the notion of the torturer’s motivation in which he or she would be greatly inclined to breach rational considerations as to what would be sufficient enough to satisfy the purpose of the interrogation. It is precisely this difficulty of establishing between the guilty and the innocent that makes torture difficult to make permissible, and such uncertainty would allude to it being unexceptionally morally wrong.
Torture inadvertently manipulates the victim’s autonomy to collude against his or her own helpless self, and it arguably possesses a greater moral stigma than killing, in whereby to torture an individual is an attack on the defenceless. When being at the mercy of another, torture can bring the victim to a form of forced self-betrayal, of which Sussman regards to be similar to rape and abuse. There is a profound asymmetry of dependence and vulnerability between the interrogator and the victim in which the victim is completely vulnerable and exposed, while the torturer is in control. While torture often overlaps with coercion and brainwashing, its distinction lies in that it attempts to manipulate victims from their own vulnerable and disoriented agency. In rare circumstances where torturers succeed in tormenting a captive who had been strongly committed to the organisation and their cause, complying with the torturers would mean the betrayal of his or her ideals and comrades. An important factor in torture is the fear experienced by the captive, in which an unfrightened or unbothered captive would make an unlikely informer. In the Landau Commission, Michael Koubi noted the hierarchy of loyalty when an individual is put under immense stress is in the order of the self, group, family and friends. When put under overbearing pressure, even a dedicated terrorist would act to protect himself at the expense of others, where in late March, a report by Time established that Sheikh Mohammed had “given U. S. interrogators the names and descriptions of about a dozen key al-Qaeda operatives” who were believed to have been plotting attacks on America and several other western countries.
However, how much of the said information can be believed? The basic utilitarian argument is that torture is self-defeatist and inefficient in a way that it does not guarantee reliable intelligence. They argue that any pain or injuries that result from torture may cause victims to suffer psychologically trauma permanently, but so will soldiers of whom will experience worse harms from artillery or aerial bombardments.
There is little evidence to determine that torture would lead to accurate information in a limited amount of time. Plans of interrogation itself may require resistance of 24 hours before it can be carried out. The view that captives will give up the correct information is also questionable as torture tends to lead to physiological and psychological variation in captives that can lead to unpredictability and inconsistency in responses, and it is also possible captives are fed the wrong information by their organisations. Even if the severe pain from torture techniques can coax reveals from captives, much of the useful information can be time-sensitive and to run down on false leads or capturing the wrong, innocent suspects can inevitably waste time. There is plausible expectation that the information obtained from the captive would correspond to how imminent and serious the threat is. Hence, in the time that it takes for the threat to become imminent, developments could take place that would make torture not necessary in the moment. It is crucial that those dealing with torture would have affirmation that the information gathered can indeed prevent the threat from happening. In the case that torture must be employed, it must be made clear that for anyone to contemplate torture would mean that he would sacrifice himself out of morality.
The deontological camp argues that torture can be used defensively. Steinhoff claims that torture can be permissible when ‘there is no morally relevant difference between self-defensive killing of a culpable aggressor and torturing someone who is culpable of a deadly threat that can only be averted only by torturing him’. Here, torture can be conducted when the victim has no means of defence and is powerless before its oppressors. However, it can also be argued that the terrorist in captive may not be powerless if by withholding information of an imminent attack, they are still able to inflict harm upon civilians.
Another viewpoint in this debate is the assertion that individuals have rights of which would be violated when subjected to torture. It is worth noting that an individual forfeits their rights to protection against torture when participating in activities such as terrorism. A memo conveyed by John Yoo, deputy assistant attorney general, assured of President Bush’s determination that through their partaking in terrorism, members of the al-Qaeda were not prisoners of war but instead illegal combatants who will not be entitled to protections under the Geneva Conventions. In planting a bomb or capturing hostages, the terrorist suspect would make themselves morally liable to harm in order to prevent him or her from inflicting further harm on more innocent civilians.
If torture is still permissible regardless if it violates our rights, it can also stand when it does not violate any rights that it be used to obtain information that could definitively prevent any further threats from happening. This would help to limit the scope of torture from misuses. Even though torture can be morally justified in the rare instances where we would not have our rights violated, some form of violation to rights are guaranteed to occur in torture anyway, and thus, we ought to serve the greater good or attempt to reduce the violation to our rights through compliance.
In addition, reflecting on what Cowan had mentioned previously, surely it is time-consuming to transport terrorist suspects from one interrogation facility to another where Mohammed was taken to Chaklala Air Force base in Rawalpindi, and then to Bagram, Afghanistan and finally to an “undisclosed location” by the U. S. forces, as well as to conduct lengthy interrogations. While it was partly successful, in which other known terrorists had been captured as there was a continuing round-up of al-Qaeda leaders, which suggests that there were those willing to talk, it brought concerns to those who campaigned against torture, where it was feared that these successes would lead to the institutionalisation of torture.
However, at the end of the interrogations, many of the captives had already died, where some even attempted to commit suicide to escape torture, which evidently portrays the psychological repercussions as entailed with torture. The lives of torturers could also be at stake, where after refusing to testify anonymously in a congressional testimony in hopes of taunting members of the al-Qaeda, Cofer Black, a counterterrorism coordinator, received threats in 1995 from members of the al-Qaeda that they had planned to kill him. Therefore, the costs of allowing and conducting torture are greatly outweighed by the gains of its practice.
Ticking time-bomb argument
Accounts of the ticking time-bomb scenario possess three similar characteristics: (1) the lives of a great amount of innocent civilians are threatened, (2) an imminent threat would occur in a short period of time, and (3) a suspected terrorist is who possesses vital information to put an end to the threat is in custody. The ticking bomb argument attempts to morally justify torture in cases where if it is employed, it should be constrained to rare conditions. This argument attempts to minimise the use of torture, while allowing for open, public accountability for when it is used.
While the ticking time-bomb scenario provides the basis of philosophical discussion, it is a rather simplistic take on the rare, exceptional use of torture, and is based on unrealistic assumptions that attempt to prejudge the moral outcome. The problem fails to make explicit the wider moral dilemmas that come with employing torture and its effects in the long-run as we are prompted to contemplate only its immediate consequences. We can observe a form of ‘domino-effect’ from the repercussions of disregarding the norm of prohibiting the practice of torture to its detrimental effects on torturers as well as the judicial system, of which is often overlooked.
The utilitarian camp of the ticking bomb argument establishes torture can be justified on the basis of harms inflicted on the terrorist will be outweighed by the harms that will be prevented from saving the lives of the innocent. Bentham argued that if by torturing one individual would prevent many others from being killed, then it is morally justified to torture said individual. The utilitarian argument is flawed in the sense that it does not observe the grey area between the guilty and the innocent; instead of torturing the terrorist, is it permissible to torture instead the terrorist’s wife who does not possess any of the desired information to prevent harms? This form of single-case utilitarian justification is simplistic in a way there is no limiting threshold.
Another adverse assumption of the ticking bomb scenario, Bufacchi and Arrigo argues, is that it ignores the rigorous preparation involved in torture and the effects it would have upon the state, resulting in greater costs than benefits. In the case that powerful states such as the U. S. would absolve itself from international laws surrounding the use of torture, it is not certain that the norm would persist. In the case that a government that is as hegemonic and influential as the United States would institutionalise the use of torture, others will be tempted to do the same. As a result, if the prohibition on torture can be overlooked in certain cases as the ticking bomb scenario, it is feared that other rights can be just as easily disregarded. Moreover, it is also a common practice of the US government to send terrorist suspects to countries such as Egypt and Jordan. These suspects will then be subjected to interrogation which includes “torture and threats to families – that are illegal in the United States” which then allows them to obtain information from terrorist suspects “in a way that we can’t do on U. S. soil”. This alludes to the fear that the practice will be wide-spread and in conducting torture in elsewhere, those responsible are able to evade responsibility and accountability.
The use of torture is a ‘slippery slope’ in itself, whereby the gap between theory and practice is observed when theoretical limits would not work when put to practice. There is also the fear that torture can escalate from moderate to harsh treatments of prisoners, and from one exceptional use to routine practice of torture. For example, the Landau Commission in 1987 would resort to the legalisation of the use of coercive interrogation of suspected Palestinian terrorists only in ticking bomb circumstances, by allowing the use of “moderate physical pressure” and “non-violent psychological pressure” to interrogate captives. The legalisation of torture was greatly abused and the Supreme Court banned its practice by 1999. Throughout the period of its use, 66 to 85 per cent of the Palestinian suspects received bad treatment, many of which led to torture.
Moreover, the institutionalisation of torture could lead to tantamount effects on the judicial system, in which countries such as the U. S. that would secretly send captives to be interrogated in countries that allow the use of torture in order to obtain useful information, of which cannot be used in court. For example, Zacarias Maoussaoui who was put to trial for having connections to the 9/11 attacks had been stalled for four years, and the sentence of Mounir Motassadeq was overturned as the evidence that was allowed against him proved too weak. It is also dangerously expansive in instances where information obtained not only cover imminent attacks but also of future attacks that could happen the next day, week and/or year. From then on, torture based on a wide range of instances would be deemed as permissible. Meanwhile, torturers experience nearly as much pain as their victims where those recruited would have to undergo a series of ‘de-sensitising’ training that could entail psychological and other multiplied consequences. Majority of those dealing with torture recruited are young, poor or uneducated low-rank soldiers of whom will be held apprehended for simply obeying orders from above, and those truly responsible will not be accountable. When it was made known that the U. S. government employed the use of torture, President Bush instead vowed to bring the “wrongdoers” to justice. Kant argued that torture not only violates the autonomy of the rational agent itself, but that the pain from torture takes the victim “from the inside”, and can lead to the annihilation of the victim himself.
Torture warrants
Dershowitz argues that, in order to regulate and sanction the practice of torture to only extreme situations, states should issue torture warrants and that it is better for it to be carried out in the open to allow those who ordered and perpetrated torture to be accountable. The use of torture in liberal democracies, in particular, is anti-democratic and anti-liberal in a way that undermines its values and ideals where decisions to torture are not collectively made and that the act itself violates the rights and dignity of the victim.
However, Ignatieff claimed that torture should remain abhorrent in liberal democracies and that it should never be and that in regulating the use of torture, as it invites any attempts to legitimise the use of torture and wide-spread use. Dershowitz has also failed to take into account the time constraints in the ticking time-bomb problem that contradicts the accountability intended from obtaining torture warrants from judges. Particularly in the case that destruction is imminent, it would be counterproductive to lose time to necessitate a warrant, putting on-going operations, and lives of those involved and of the innocent civilians at risk.
Also, legalising torture does not provide the means to monitor interrogations as well as how the abusers of torture will evade the risk that comes with being trained to practice and the limits to being able to use their skills. As Twining and Twining argued, “institutionalised torture may lead to the creation of a guilt of professional torturers whose continued existence will constitute a serious threat to society”. While coercive interrogation did not immediately stop when the Israeli Supreme Court banned its use, interrogators who used the aggressive methods by then knew that they would break the law and be held responsible, and this ban acted as a deterrent and limited the use of coercion. Therefore, anyone who has dealt with torture must be able to convince others in a trial that the necessary conditions for a permissible act were satisfied.
Conclusion
To conclude, this essay has argued that torture is morally wrong whereby in every uncertainty, it weakens the case to justify torture as obligatory and permissible, as the cost of putting torture into practice outweighs the benefits. The difficulty to replicate instances of the ticking time-bomb problem in real life also makes it an unrealistic metaphor to use in resorting to torture, in whereby it is difficult to establish that torture can be employed in almost every emergency situation without a string of consequences that would ensue. The belief that torture can produce accurate and reliable information is greatly flawed in the sense that it does not allow us to distinguish between the guilty and the innocent. The institutionalisation of torture through the implementation of torture warrants and allowing its use in rare, exceptional cases could lead to a ‘slippery slope’ between theory and practice, in whereby it would lead to wider consequences. It is also doubtful that information gathered from torture would be effectively used in a reputable trial, which would inevitably lead to having key suspects overturned and acquitted.
While torture should always be morally wrong and illegal, it is difficult to always determine the lesser of two evils in instances of immediate emergencies. Hence, torture should and can be permissible in supreme emergencies with just intentions, but it is important for the abuser to resort to torture as the last resort, and that he or she should be aware of the implications that entails from taking part in torture, in whereby, he or she should be put to trial to explain their motive in justifying their use of torture. While torture can sometimes be the only choice, it is uncertain for us to be sure that it does not become commonplace, and not simply a tool for gaining crucial, life-saving information, as it is also difficult to determine when and where to draw the line, and if torture can be used to prevent harm inflicted upon victims of an imminent attack, surely it can also be used to prevent attacks in the unforeseeable future.
