Ten Questions We Should Ask Ourselves About Torture
“Torture is the systematic and deliberate infliction of acute pain by one person on another, or on a third person, in order to accomplish the purpose of the former against the will of the latter.” (Amnesty International)
Torture is morally wrong. It’s also ineffective as a means of obtaining information. It corrodes the torturers, the tortured and the societies in which it takes place. That being the case, why has it taken the entire span of human existence for us to realise this, and why – despite almost universal acceptance of international law prohibiting it – does it still take place across the majority of inhabited space on our planet?
Is it because we are more driven by fear than rational thought? Are we as a species less “civilised” than we like to think? Or more civilised than we think, because we’re the only species that deliberately inflicts pain on our peers for purposes other than territorial dominance and sexual supremacy? Or should we be using the term “evolved” rather than civilised?
I don’t know, and I find the subject of torture as disturbing as anyone else who is confronted with evidence of the appalling cruelty that people inflict upon others. I also have no interest in getting into the kind of debate on the subject beloved of philosophy teachers. I have opinions, but more questions than answers.
So here are ten questions we should perhaps ask ourselves when we make sweeping statements on the subject. To some the answers are obvious. To others less so. Most of them lead to more questions.
The questions use as a reference point the definition of torture I quoted above.
Is it wrong?
It surely depends on what we mean by wrong. Do we mean morally wrong? According to what moral framework? A religious framework? Which religions specifically condemn physical punishment? And which religions specifically sanction it? Undoubtedly some religious scriptures can be interpreted as condoning the infliction of pain on others. I leave it to you to figure out which.
Is it effective?
The most common practical argument against torture is that people will say anything to make the pain stop. I wonder. If the information given under duress can be verified as being false, and discovery of the falsehood will result in the certainty of further punishment, is the argument still valid?
Which is more effective, the fear of torture or the act itself?
Perhaps it depends on the certainty that torture will follow as the result of lack of cooperation. If we know that we are about to be tortured, it is an exceptional (or highly motivated) person who is not prepared to go to any lengths to avoid the consequent pain and suffering. So you could argue that yes, in the majority of cases the threat of torture is very effective. So is the fear of the unknown – not knowing what is about to happen to you. Imagination is a very powerful thing.
Can you torture groups as well as individuals?
I would say undoubtedly yes, even if Amnesty’s definition seems to exclude group torture. The random selection of individuals from a group for execution is a time-honoured practice that was used very effectively by the Nazis in World War 2.
Is it wrong to engage with torturers?
Does it not depend on who’s doing the engaging, and for what purpose? If governments ostracise other governments that knowingly employ torture, there wouldn’t be much international dialogue. What large countries don’t use torture in one form or another, at one time or another? International diplomacy is largely a process of the guilty talking to the guilty.
Would you torture to protect your loved ones?
If the answer is yes, then should you judge governments that torture those who threaten citizens that it is under obligation to protect? Would you condone the use of torture in an extreme situation, for example to prevent a nuclear attack on your city? This is the Cheney justification: “our country was under attack – we used any means necessary to defend it”.
Is war a form of torture?
Was the series of assaults on Gaza a form of torture? Was the bombing of Germany and Japan in World War 2 a form of torture? How about the bombing of Vietnam? Is the threat of war a form of torture, given the terror that it instils in populations?
Is there such a thing as non-violent torture?
Is mental cruelty – withdrawal of love, isolation, sensory deprivation, sleep deprivation, lies, exploitation of personal phobias, bullying, threats of violence – torture? If so, how many of us can honestly say that we have never used torture at some stage in our lives?
Are democracies less likely to torture than autocracies?
That probably depends on your definition of democracy. I can think of a number of countries that call themselves democracies where torture takes place unchecked. So it’s probably the wrong question. Better to ask if torture is less likely in countries that respect the rule of law. Recent history suggests that autocracies are more likely to make laws that enable torture because they can do so without public opposition. On the other hand, in extremis, elected governments are just as capable of using it. Think of the US in Vietnam, Britain in Kenya, France in Algeria. The rule of law is effective only if the law is imposed transparently.
Are we as individuals capable of torture?
Obviously it depends on the individual. But enough “ordinary people” willingly joined the Nazis in persecuting the Jews in World War 2. The Milgram Experiment, in which participants, prompted by a figure of authority, were prepared to use potentially excruciating doses of electrocution on subjects, suggested that in certain circumstances many people are capable of inflicting pain and suffering.
It’s easy to point the finger at America’s “enhanced” interrogation tactics in the aftermath of 9/11. It’s an open-and-shut case, isn’t it? Morally wrong and possibly criminal.
The reality is that the waters are far muddier. That’s why I offer more questions than answers.
Inevitable, I suppose, that a comment on the “open and shut case” on America should appear at the end of your article. I offer the following article from the Wall Street Journal for further consideration.
John D
By
Michael B. Mukasey
Dec. 16, 2014 6:47 p.m. ET
Considering that the now-abolished Central Intelligence Agency interrogation program adopted in the wake of 9/11 was intended to protect the U.S. from another deadly attack, it is stunning to hear those now criticizing the program issue the solemn reminder that “we are a nation of laws”—while devoting little attention to what was actually in those laws. Odder still, among the critics those who wrote the laws seem to devote the least attention to them.
Take, for example, Sen. Dianne Feinstein, the prime mover behind last week’s release of a more than 500-page “ Executive Summary ” of the report by Democrats on the Senate Select Committee on Intelligence. She attaches her own six-page foreword, beginning with the dutiful assurance on the first page that the “horror” of the television footage of the 9/11 attacks “will remain with me for the rest of my life.” Thus credentialed, Sen. Feinstein proceeds to the task at hand: CIA personnel “decided to initiate a program” of “brutal interrogation techniques in violation of U.S. law, treaty obligations, and our values.” Setting aside for a moment the reference to “our values,” that statement is demonstrably false.
Laws are a technical business in which both terminology and chronology play a part. So if the law that criminalizes torture defines it in a certain way, that definition—and no more—is what it is, punditry and cocktail-party figures of speech notwithstanding. In September 2001, there was but one law that defined torture, making it a crime to act with the intent to cause “severe physical or mental pain or suffering.” Severe physical pain or suffering is not defined. Severe mental pain or suffering is defined as “prolonged mental harm” resulting from any of four causes, including causing severe physical pain or suffering.
So, to take the harshest of the techniques used in the CIA program, and the one that has therefore become emblematic of them all, the central question is whether waterboarding as applied by the CIA to the three terrorists who underwent it would have caused severe physical or mental pain or suffering. The procedure used by the CIA involved placing a detainee on a flat surface with his feet slightly elevated, placing a towel over his face, and pouring water over his nose and mouth repeatedly for periods that did not exceed 40 seconds. If that does not cause severe physical or mental pain or suffering, it is not torture, and those who applied it cannot reasonably be said to have acted with intent to cause such pain or suffering. It was not torture, for at least two reasons. First, Navy SEALs for years have undergone waterboarding of that sort as part of their training, and they report that the procedure does not cause much physical pain at all; their splendid careers show that it also does not cause severe mental pain or suffering as defined in the law. Second, 9/11 mastermind Khalid Sheikh Mohammed, perhaps the worst of the three waterboarded terrorists, eventually came to know the precise limits of the procedure and was seen to count the seconds by tapping his fingers until it was over. Some torture. Arguably, what broke him was sleep deprivation, but in any event he disclosed reams of valuable information. At last report, he is doing just fine.
Our treaty commitments in those post-9/11 days—agreements that also have the force of law—were expressed in a statute that criminalized any “grave breach” of the Geneva Conventions. Because of a later Supreme Court ruling, Article 3 of the Geneva Conventions could be read to protect even unlawful combatants who adhere to no rules of combat and who were never intended to be protected by treaties drafted to promote adherence to the accepted rules of combat. The definitional sections of that law, as amended by the Military Commissions Act of 2006, show that what it makes criminal are egregious acts similar to those already made criminal by the domestic torture statute.
Restrictions imposed by the Detainee Treatment Act of 2005 are framed in opaquely general terms—e.g., “cruel, inhuman or degrading treatment or punishment.” Those provisions at their broadest are read to impose limitations on the federal government no broader than those contained in the Due Process Clause of the Fifth Amendment and in the ban on Cruel and Unusual Punishments in the Eighth. The latter is read to apply to treatment imposed as “punishment” on the convicted, and therefore wouldn’t apply to interrogations of detainees for investigative purposes.
As to the Fifth Amendment, the Supreme Court has said that the treatment barred by the Due Process Clause is an abuse of power that “shocks the conscience,” and that “what shocks in the one case is less egregious in the other.” Which is to say that it matters what is at stake—like, say, national security.
Was all this dry and abstruse stuff known to Sen. Feinstein at the time that she presented the CIA report and wrote the six-page aria that constitutes her foreword? Consider that in 2006 she co-sponsored an amendment to the Military Commissions Act that would have classified waterboarding as torture; the amendment was voted down. In 2008 the Senate passed a measure that would have limited interrogators, including those working for the CIA, to the techniques set forth in the Army Field Manual, and thus would have outlawed waterboarding. That bill was vetoed by President George W. Bush .
Insofar as she damns conduct that occurred before the formal CIA program was in place in the summer of 2002, or was otherwise outside the program, that conduct was reviewed in multiple investigations and no criminality found, save for one prosecutable case in which the defendant received a 12-year sentence.
Consider also Sen. Feinstein’s language. Dismissing the conclusion by the Justice Department’s Office of Legal Counsel that the CIA techniques were not torture, she says it “is my personal conclusion that, under any common meaning of the term, CIA detainees were tortured. I also believe that the conditions of confinement and the use of authorized and unauthorized interrogation and conditioning techniques were cruel, inhuman, and degrading.” Which is to say, Sen. Feinstein wins the argument only by defining herself as both the standard setter and the winner. Also, if she is looking for a “common meaning” of torture, how about something like a procedure to which no rational person would submit voluntarily? More journalists have tried the experience of being waterboarded than terrorists were subjected to it. That wouldn’t be the case if, for example, we were talking about needles under the fingernails.
And what of “our values,” which not only she but also Sen. John McCain —a man whose fortitude in the face of real torture by the North Vietnamese gives him nearly unique moral stature—have claimed were violated by the CIA program? Others with credentials similar to Sen. McCain’s, including Medal of Honor recipients and fellow Vietnam prisoners of war Leo Thorsness and Bud Day, believe in the efficacy and morality of waterboarding.
Moreover, and particularly at a time like this, I think it is important that we resist the New Age conceit of seeing each act of our government as an expression of who we are, and each act by its officials as an expression of who they are. Brave and serious men and women, faced with the most terrifying attack in American history, and—along with the rest of us—fearful of more, devised and executed a program to get intelligence from captured terrorists who refused to cooperate. Former CIA directors and deputy directors have recently described in these pages how that program succeeded. Theirs was an act of national self-preservation, not of national self-expression.
As for the views of Sens. Feinstein and McCain and others about what is legal or illegal, this nation of laws is governed by what is in those laws, not by what at any given moment is in the minds and mouths of those who enact them.
Mr. Mukasey served as U.S. attorney general (2007-09) and as a U.S. district judge for the Southern District of New York (1988-2006).
Hi John. You’ve just set the record for the longest comment on a 59steps post! Actually I think you misunderstood my drift. If you read the last two sentences, I thought I made it clear that the case against the CIA was not open and shut, and that in fact the waters are very muddy indeed – which is why I hesitate to pass judgement. As I said: more questions than answers…. S
Hi, Steve. I did catch your drift, but I suspected the normal reader would not. There is a case to be made ethically and morally against certain forms of “enhanced interrogation”, but I thought it would be wise to display Mukasey’s effort to explain the legal perspective.