Torture is a highly controversial practice that is surrounded by a complex ethical dilemma. The use of torture as an interrogation technique is as old as humankind.
After the end of World War II, several countries, including France, Spain, and the United States, began working on the Universal Declaration of Human Rights prohibiting the use of torture. The treaty was proclaimed by the United Nations (UN) General Assembly in Paris on December 10, 1948, General Assembly Resolution 217 A (III). In 1984, 36 years later, the UN adopted the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Convention against Torture (CAT) was ratified by the United States and many other countries. The convention prohibits both torture of suspects within the borders of the United States and the transportation of suspects to other countries who have not ratified the treaty for the purpose of torturing them.
However, the United States only signed CAT under the condition that psychological torture would be excluded. The United States also implemented domestic antitorture legislation as part of the U.S. Code, with the exclusion of psychological torture. After the 9/11 attacks on the United States, President George W. Bush signed off on the use of “harsh interrogation techniques” to obtain information from terrorist suspects about the 9/11 attacks and future attacks. This led to a renewed debate on the definition of torture, the moral justification of torture, the effectiveness of torture, and implications for American prisoners of war (POWs).
What Constitutes Torture?
Section 2340 of the U.S. Code defines torture as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering … upon another person within his custody or physical control.” The statute defines severe mental pain or suffering as “the prolonged mental harm caused by or resulting from” (1) “the intentional infliction or threatened infliction of severe physical pain or suffering”; (2) “the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality”; (3) “the threat of imminent death”; or (4) “the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.
The UN Convention against Torture of 1984 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 him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”
The problem with both definitions is their workability, because they are arguably incomplete and vague. For years there have been questions about which specific methods of interrogation should be considered torture. For example, common torture practices, such as forcing the victim to remain in a stress position for an extended period of time, may not cause organ failure or death, but many people would consider them to be torture because they cause physical and often psychological pain.
Depending on the answer to this question, the United States’ use of “enhanced interrogation techniques” such as sleep deprivation, holding suspects in stress positions, 20-hour interrogations, and waterboarding may be in violation of the UN Convention against Torture and the U.S. Code 18 § 2340. Some of the most often used methods are psychological torture, such as sensory deprivation, sensory bombardment (noise), sexual humiliation, temperature extremes, use of dogs to scare detainees, mock executions, and watching others being tortured. Ultimately, the question of what exactly torture is depends on who one asks. If one asks the detainees who were being interrogated, they would likely classify it as torture. In fact, several previous detainees have filed lawsuits for violations of the Geneva Conventions.
Moral Justification of Torture in Cases of Emergency
The purpose of torture is typically to get a confession and extract information about a certain event, people, or operation of enemy forces. Advocates of torture claim that under extraordinary circumstances torture is justified because it keeps people safe. The most often used rationale for using torture is that the suffering of a few will potentially benefit many people. If a detainee reveals a planned terrorism strike in the course of the interrogation, then wouldn’t the suffering of that one individual be worth the saving of potentially hundreds or thousands of lives? This is the core ethical dilemma of the practice of torture. Commonly, the assumption is that the routine use of torture is not justified, but in cases of emergencies it can be justified. The 9/11 attacks and the threat of future attacks were generally perceived as an emergency situation. Proponents of the emergency justification state that torture is justified when it is used on persons who are known to be guilty and for the purpose of getting information. This, of course, assumes that it is possible to determine with certainty who is guilty and has pertinent information.
Strict opponents of torture argue that torture is never morally justified regardless of the circumstances. Consequentialists would counter that this is a naïve stance and that the lives of thousands is more important than the suffering of a few. This argument could certainly also be made by other countries and terrorist groups who have American POWs. Many people think that the emergency justification is a slippery slope that could expose innocent people to torture and erode POWs’ rights, including the rights of American POWs. Military personnel captured in a current or future war may be tortured using a similar emergency justification as was used by the United States.
Current Torture Debate in the United States
After the end of the Cold War the United States and many other countries worked on an international treaty that would prevent the torture of POWs and other citizens. In 1994, the United States ratified the UN Convention against Torture. The issue of torture received little attention until the 9/11 attacks on the United States and the invasion of Iraq and Afghanistan. Abu Ghraib prison and the Guantanamo Bay detention camp became synonymous with torture and misconduct by the United States.
Abu Ghraib prison, 20 miles west of Baghdad, became the focus of attention across the world when pictures of American military personnel torturing Iraqi prisoners were released in the media. Under Iraqi leader Saddam Hussein, Abu Ghraib prison was notorious for its vile living conditions, torture, and executions. After the Americans took over the prison complex it was used to house and interrogate terrorist suspects. The bad reputation of Abu Ghraib continued under American administration. In 2006, the media released dozens of pictures of prisoner abuses from Abu Ghraib, including physical abuse. The outrage over the human rights violations led to an investigation of the events at the prison. Several military officers were sentenced to jail and dishonorably discharged. Many observers, however, criticized the United States for only punishing the officers and not the persons who gave the orders to use “harsh interrogation methods.” This type of selective prosecution cast an unfavorable light on the United States and the country’s sincerity with regard to its stance against torture.
Guantanamo Bay continues to spark much debate on the torture issue. In 2002 the United States began to move terrorist suspects to Guantanamo Bay with the main purpose of getting information about the 9/11 and future terrorist attacks. The harsh interrogation techniques used there have consistently received critiques from international human rights organizations, such as Amnesty International and the Red Cross, but also within the United States. The argument that the great threat of terrorist attacks justifies possible violations of the Geneva Conventions and the UN Convention against Torture has been widely rejected by the international community.
The U.S. Supreme Court has also weighed in on the issue. In Hamdan v. Rumsfeld (2006) the court ruled that the U.S. government could not set up military commissions to try detainees held at Guantanamo Bay because it violated the Geneva Conventions and the U.S. Code of Military Justice. The U.S. government argued that terrorists from al Qaeda and the Taliban were not protected by the Geneva Conventions and the UN Convention against Torture “because the Taliban did not exercise full control over the territory and people, was not recognized by the international community, and was not capable of fulfilling its international obligations”.
The court disagreed, arguing that the assessment by the government “finds no support in the structure of the Conventions themselves, which are triggered by the place of the conflict, and not by what particular group a fighter is associated with.” The court further held that detainees could only be denied POW status and treatment following a determination by a competent tribunal, and that the presidential determination and the “combatant status review tribunals” were not sufficient for these purposes. As a result, it was held that the trial of the detainees before a military commission could not proceed until such a determination had taken place.
Is Torture Cruel and Unusual Punishment?
Some people have proposed that torture is prohibited under the Eighth Amendment because it constitutes cruel and unusual punishment. This issue was brought up during the debate about the treatment of detainees at Guantanamo Bay. The question was whether “harsh interrogation methods,” such as waterboarding, should be ruled unconstitutional by the U.S. courts. In 2009, four former Guantanamo detainees sued the U.S. government for torture and religious abuse. The lawsuit was dismissed by a U.S. appeals court, which argued that officials at Guantanamo Bay had immunity from prosecution. The four former detainees appealed the ruling to the U.S. Supreme Court, but the court declined to hear the case, without giving an explanation. However, one of the justices, Antonin Scalia, did take a stance on the issue.
In an interview with the BBC, Scalia stated that torture is not prohibited by the Eighth Amendment because it is not a punishment; suspects are not tortured to punish them but to extract information. In his interview Scalia was asked specifically about detainees in the United States, such as terrorist detainees at Guantanamo Bay. He claimed that torture would only be unconstitutional if it was used as a punishment, but in the case of the terrorist detainees that is not the case. The Constitution is silent on the issue of whether torture may be used for the purpose of interrogating suspects.
Opponents of torture take the stance that torture is cruel and unusual punishment because detainees are experiencing the torture as punishment for their behavior. The debate on whether “harsh interrogation techniques” constitute torture and whether these techniques may be morally justified and even necessary under emergency circumstances will continue in the United States. It is not likely that the Supreme Court or Congress will make a decision on this issue in the near future.
Does Torture Work?
One of the most controversial questions is whether the use of torture actually obtains reliable information about the enemy. As in the question of what exactly is torture, there are many different opinions on the question of the effectiveness of torture. For instance, one of the top Federal Bureau of Investigation (FBI) interrogators, Ali Soufan, testified before Congress that harsh interrogation techniques do not lead to useful information about the enemy because the information provided by the interrogated person is unreliable. A tortured person may simply tell the interrogator what he or she thinks the interrogator wants to hear. Also, they may or may not have the desired information and provide wrong leads that take up manpower and financial resources. Soufan stated that it would be more effective to use the informed interrogation approach in which the interrogator has up-front knowledge about the suspect that is used to build a relationship with the suspect to get reliable information.
Critics state that this approach is too soft and suspects are likely to manipulate the interrogator. Proponents of “harsh interrogation techniques,” including the Central Intelligence Agency (CIA), state that their methods have led to useful information. For instance, the CIA claims it has received information from Khalid Sheikh Mohammed, the mastermind of the 9/11 attacks, about Osama Bin Laden which eventually led the United States to his place of hiding. Mohammed was waterboarded 183 times in March 2003. Critics, however, argue that Mohammed did not reveal any information while being waterboarded. They maintain that he did not reveal information until 2006, when the waterboarding had long stopped and he was interrogated via a noncoercive persuasion technique.
Another critique of torture is that there is a high potential that innocent people are being tortured or that the detainee really does not have the desired information. It is unknown how much and what type of information a suspect has. Thus, torturing the suspect is based on the speculation that he or she has the desired information. The detainee cannot stop the torture by giving up the desired information because they do not have information.
They may simply make up information, resulting in a waste of time and resources. The issue of torture is endlessly debatable, and the United States appears to have taken the stance that under emergency circumstances the ends justify the means. Most of Europe and other countries disagree with this approach, but not without debate within their own countries.
Bibliography:
- Borelli, Silvia. “Casting Light on the Legal Black Hole: International Law and Detentions Abroad in the ‘War on Terror.’” International Review of the Red Cross, v.87.857 (2005).
- Brecher, Bob. Torture and the Ticking Bomb. Oxford: Blackwell, 2008.
- Danner, Mark. Torture and Truth: America, Abu Ghraib and the War on Terror. New York: New York Review Books, 2004.
- Garcia, Michael J. “The U.N. Convention against Torture: Overview of U.S. Implementation Policy Concerning the Removal of Aliens.” Congressional Research Service Report for Congress, (2009). http://www.fas.org/sgp/crs/intel/RL32276.pdf (Accessed October 2013).
- Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
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