The war on terror that was launched by the United States and its allies following the September 11 terrorist attacks has renewed a judicial
The war on terror that was launched by the United States and its allies following the September 11 terrorist attacks has renewed a judicial, political as well as philosophical debate across the world on whether the use of torture to obtain information from terror suspects can be justified (Evans, 2005; Horwood, 2009; Lasson, 2008). In the United States, there still exists a strong tension, among government officials and the citizens, between the competing emotions of revenge, desperation as well as anger (Lasson, 2008). As a result, it is becoming increasingly difficult to, one on hand, adhere to the international laws that govern a state’s legal and moral obligations to provide protection for its citizens, and on the other hand, to continue to safeguard individual liberties (Lasson, 2008; Horwood, 2009). The gathering of information or intelligence about potential attacks, the identity as well as the whereabouts of terror group leaders is vital parts of the war on terror. To this end, there have been many cases where terror suspects have been various forms of cruel, degrading and inhumane treatment in order for the United States’ homeland security agencies to obtain this information (Horwood, 2009; Lasson, 2008; Evans, 2005). These methods of interrogation that terror suspects are usually subjected to have been found to constitute terror whereby suspects are being systematically abused, in what is commonly referred to as enhanced interrogation techniques, to extract that is allegedly crucial in preventing major terrorist attacks similar to September 11, 2001 (Horwood, 2009; Cohan, 2007; Kearns, 2014). This paper examines whether the use of torture to extract information from terror suspects is justified.
One of the most discussed topics regarding the use of torture is nations across the world, even with the knowledge that torture violates both national and international laws, still engage in the practice given the questions surrounding its efficacy (Kearns, 2014; Horwood, 2009). Rejali (2009), in his extensive analysis of the practice, identified three main why most nations still use torture even though they have laws that prohibit torture. These include the civil discipline model, the national security model as well as the judicial model (Rejali, 2009; Kearns, 2014). The national security model of torture that is used as a response to terror attacks is the most commonly used by countries such as the United States and other nations across the globe (Kearns, 2014; Evans, 2005). After September 11, countries such the US, in trying to justify the use of torture, or enhanced interrogation techniques, have cited the threat of terrorism to national security (Rejali, 2009; Kearns, 2014).
Policymakers as well as scholars have given two claims why nations, more especially democracies, use torture in counterterrorism. These include deterrent torture and interrogational torture (Kearns, 2014; Evans, 2005). While deterrent torture is geared towards discouraging similar terrorist acts, interrogational torture is used to extract necessary information from the terror suspects that are deemed as uncooperative (Crelinsten, 2014; Rejali, 2014; Kearns, 2014). However, as Fiske (2013) argues, there is little empirical support to support these claims (Fiske, 2013). As Evans (2005) points out, there are several positions held by different scholars, parties, and individuals on whether the use of torture can be justified. The moral absolutism position holds that people must do the right things instead of trying to calculate the repercussions of their actions (Evans, 2005; Nye, 2005). The moral absolutism perspective considers torture as an unacceptable practice that should be prohibited because it contravenes the concept of human rights, dignity as well as humanity (Nye, 2005). This position is reflected in various international conventions. For instance, the 1984 Universal Declaration of Human Rights stipulates that no individual should be subjected to any form of torture or inhumane, cruel or degrading punishment or treatment (United Nations High Commissioner for Human Rights, 1984). The 1984 Convention further instructed that there are no exceptional circumstances (like internal political instability and the threat of war among others) would be used to justify the use of torture (Evans, 2005; Nye, 2005). Similarly, the 1949 Geneva Conventions provided for the protection of civilians as well as enemy combatants. Article 5 further stipulates that countries have an obligation to treat unlawful combatants with humanity besides being accorded the rights of a fair trial (International Committee of the Red Cross, 1949). Yet, as Hathaway (2004) argues, torture persists in both democratic as well as despotic regimes across the world (Hathaway, 2004).
There are scholars who hold a utilitarian position regarding the justification of the use of terror. According to this perspective, people in authority who allow the deaths of innocent citizens, instead of choosing to torture the complicit or guilty individuals, assume greater moral guilt (Elshtain, 2004; Evans, 2005). According to the utilitarian argument, the rights of a few individuals must be sacrificed not only to save the lives of the innocent citizens but also thwarts any threats to national security (Elshtain, 2004). As a consequence, the torture of terror suspects is justified as a necessary method to obtain vital information that would be used to prevent potential terror attacks and saving the lives of innocent people (Evans, 2005; Elshtain, 2004). According to Evans (2005), this line of argument or justification is often used in extreme cases, also referred to as the ticking bomb scenarios, to justify the use of torture on a complicit or guilty individual or individuals as a way of preventing the death of hundreds or even thousands of individuals (Posner, 2004; Evans, 2005; Elshtain, 2004). But, as Evans (2005) further explains, even though both the utilitarian and absolutist perspectives try to provide an explanation the justification of torture or lack of, there exists significant ambivalence towards the use of torture to extract information from terror suspects in the United States (Evans, 2005). US policymakers as well as the public, on one hand, do not argue in support of the legitimization of the use of torture. On the other hand, the American government categorically denies engaging in the practice of torturing terror suspects and that whatever cases that the media might have uncovered are not a reflection of official policy (Evans, 2005).
The war on terror and torture
Rejali (2009) holds that the main aim of terrorism is to spread within the members of the society as a means of achieving certain religious and/or political goals (Rejali, 2009; Booth, 2004). As a result, terrorist groups target the civilians and are a threat to the life and security of the civilian population. It is the duty of the state to provide protection to its citizens from such threats in addition to safeguarding against the violation of human rights. It is for these reasons that national security and the right to life are central to the war on terror (Hoffman, 2004).
However, even though there is a general consensus about the significance of preventing terror attacks as well as protecting innocent civilians from terrorist attacks, the methods being deployed by the US security agencies to obtain vital information about terror activities remain highly questionable. For instance, according to Hoffman (2004), the United States has been repeatedly faced accusations of violating international laws as well as human rights standards due to its reliance on information extraction tactics that are both morally and legally questionable (Hoffman, 2004).
Some of these tactics or methods include detention without proper trial as well as the use of physical torture during the interrogation of terror suspects. In addition, there is documented evidence from the reports of various human rights organizations, statements by the victims as well as United States intelligence officers, and the International Committee of the Red Cross that American security agencies regularly employed the use of torture as an interrogation technique to extract information from prisoners not only at Abu Ghraib but also Bagram Air Base and Guantanamo Bay. For instance, the interrogation sessions of terror suspects detained in Guantanamo Bay and Abu Ghraib included various forms of torture such as exposure to extreme cold and heat, being deprived of food, water and sleep, waterboarding, sexual degradation among many other forms of inhumane treatment that amount to torture (International Committee of the Red Cross, 2007).
While Article 1 of the United Nations Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (C.A.T) broadly defines torture as any act through which suffering or severe pain is inflicted on an individual with the intentions of obtaining information or a confession (Evans, 2005), Cohan (2009) argues that part of the debate on the whether torture to obtain information from terrorists and terror suspects can be justified stems from the disagreements on what constitutes terror as well as the undefined boundaries of the torture concept (Cohan, 2009). As a result, there is a debate on whether keeping terror suspects kneeling or in a standing position, deprivation of sleep with a bombardment of lights round the clock as has been the case in Guantanamo Bay constitutes torture (Cohan, 2009; Kearns, 2014). On the same note, there are those who argue that certain techniques of interrogation such as exposing a terror suspect to loud noise, putting hoods on terror suspects during detention as well as being made to stand on tiptoes, while degrading and inhumane, cannot be held to constitute torture (Cohan, 2007; Lasson, 2008; Horwood, 2009).
However, the treatment of detainees in the Abu Ghraib prison, whereby Iraqi prisoners were sexually humiliated, as well as other enhanced interrogation techniques used by US security agencies in Guantanamo Bay constitute torture (Cohan, 2007). For instance, according to various reports, several prisoners in Abu Ghraib prison were stripped naked, hooded and sexually mocked by female guards. Similar accounts indicated that terror suspects detained at Bagram detention center in Afghanistan were subjected to various forms of torture such as being kicked and punched, deprived of sleep as well as being forced to stand in difficult positions such as tiptoeing for hours on end. As a result, several detainees died due to these degrading, cruel and inhumane acts of torture suffered at the hands of the US Special security forces (Lasson, 2008; Cohan, 2007). As Kearns (2014) further explains, the routinized and widespread use of torture on terror suspects as well the consistent use of various methods are an indication that torture incidents perpetrated by the United States security agencies are not an exception of rogue individual behavior but an actual interrogation strategy to obtain allegedly crucial information from the detained terror suspects as well as terrorists (Kearns, 2014; Hoffman, 2004; Rejali, 2009).
The United States Department of Justice memorandum
In 2002, the US Department of Justice, following widespread criticism for authorizing as well as justifying the torture of terror suspects, issued a memorandum that sought to redefine and interpret what constitutes torture under 18 U.S.C 2340-2340A that concerns psychological and physical torture (Cohan, 2007; Kearns, 2014). The memorandum stipulated that for physical pain to be considered as torture, it must be equivalent in intensity to the pain that usually accompanies severe physical injury such as the bodily functions impairment, organ failure or even death (Cohan, 2007). In other words, for physical or mental suffering to amount to torture, it must be as a result of physical or psychological pain for prolonged durations (Horwood, 2009; Hoffman, 2004). Similarly, the 2002 memorandum argued that if a national security agent inflicts pain or suffering on an enemy combatant during an interrogation session, although it might be a violation of section 2340A, such an agent would be deemed to have acted in such a manner to prevent possible future attacks from terrorist groups, more specifically the Al Qaeda terrorist group (Cohan, 2007). In addition, if the agent’s intention is to extract information and is fully aware that his/her actions will cause severe pain to the detainee, the agent cannot be deemed to have violated the statute (Lasson, 2008; Cohan, 2007).
As Cohan (2007) further explains, the 2002 memorandum was partly informed by the English High Court opinion regarding Ireland v. the United Kingdom that stated that degrading or inhuman treatment or punishment, though inadequate, was a necessary condition to determine torture (Cohan, 2007). Some of the techniques of detainee interrogation necessitated the issuance of the memorandum by the Office of Legal Counsel include the deprivation of food, water, and sleep, exposing terror suspects to continuous noises, the use of hoods during interrogation as well as forcing detainees to remain standing in uncomfortable positions for hours (Cohan, 2007; Hoffman, 2004). The memorandum was superseded by another memorandum in 2004, issued by the Department of Justice that sought to diminish the extreme stance taken in the 2002 memorandum. The 2004 memorandum also sought to reaffirm that torture is a cruel act besides disagreeing with the earlier stance that only extremely high degrees of suffering or physical pain would constitute torture (Hoffman, 2004; Cohan, 2007).
The ticking bomb scenario
It is important to note that the fight against terror involves the gathering of information on global terrorist networks whose members have in most cases managed to infiltrate the civilian population. As a result, the extraction of information from these terror suspects is of utmost importance as it is one of the key strategies of counterterrorism. Since security agencies and officers are under immense pressure to obtain valuable information on terror groups’ activities as well as possible terror attacks, there often arises the pressure to use objectionable means to extract this information (Hoffman, 2004; Rejali, 2009). The ticking time bomb scenario is used to refer to an emergency situation where the use of torture is supposedly necessary to extract information from a terror suspect to help in determining the location of a ticking bomb (Bellamy, 2006). In such a case, as Evans (2005) argues, the use of torture can be deemed as the committing of a lesser evil so as to prevent a greater evil that would, in most cases, help to protect the lives of innocent civilians (Evans, 2005). Those who use the ticking bomb scenario to justify the use of torture in interrogating terror suspects argue that if an imminent danger or threat can be averted through the infliction of physical or psychological harm, and that if the protected interests outweigh those that have to be violated, then the use of torture as an interrogation technique is justifiable (Posner, 2004). This argument, as Cohan (2007) argues, is founded on the basic cost-benefit concept that holds that the use of torture can be morally justified in instances when greater evil is avoided by the use of the lesser evil (Cohan, 2007).
This argument is further supported by the defenders of torture as an interrogation tactic. Bellamy (2006) explains that in instances where the interests of the majority are protected, the use of torture is not justifiable but also morally essential. Derived from the negative complicity theory, proponents of torture hold that if an individual can prevent harm of many by engaging in a few wrongful acts, the individual has the moral responsibility to act so or else he/she should be considered as complicit, and as a result, responsible for the many wrongs (Bellamy, 2006). However, even though the ticking bomb scenario has been used by various security agencies to justify the use of torture in the war on terror, it offers a weak base to build the argument on (Cohan, 2007; Evans, 2005). Bellamy (2006), for instance, points out that the ticking bomb scenario, a purely hypothetical scenario, its applicability in real life situations remains largely questionable mainly due to the fact that its conclusions are drawn from misleading as well as unlikely assumptions (Bellamy, 2006). Further, it is based on the erroneous assumption that torture is the only effective means of obtaining vital information from terror suspects. On the contrary, there is empirical evidence that shows that in most instances, legal techniques of interrogation were successful in extracting necessary information in addition to showing that torture techniques did not necessarily lead to the yielding of additional information from the terror suspects (Kearns, 2014; Bellamy, 2006). Evidently, according to Cohan (2007), the use of torture is neither the only effective or efficient method of gathering information or intelligence from terrorists and terror suspects (Cohan, 2007; Bellamy, 2006; Posner, 2004).
Additionally, the use of torture in interrogation has led to questions of the reliability of the information gathered. This is due to the fact that torture leads to false information or confessions by the terror suspects so that the violent treatment or punishment they are undergoing can stop (Bellamy, 2006). There have been various victims’ statements that have shown that some of them were tortured to confess to being involved or privy to information relating to the activities of terrorist groups. This brings to question the reliability or validity of the information that the terror suspects offer when they are put under duress or extreme pain/suffering, and if such information is useful in the prevention of further terrorist activities (Bellamy, 2006; Evans, 2005; Cohan, 2007). On a similar note, Bellamy (2006) argues that confessions are only useful in the war on terror if they are provided early enough to prevent terror attacks. This is due to the fact most of the confessions coerced out of most terror suspects is usually useless since, once the terror groups get information that one of their members has been arrested, there is a high probability that they will change their plans or even the location of their operations (Bellamy, 2006). It is also important to state that, it is not guaranteed that most members of terrorist groups have undergone specialized training, and as a result, are unlikely to yield to torture techniques to provide timely information (Cohan, 2007; Hoffman, 2004).
While there are who strongly hold that some enemies such as Al Qaeda are conditioned to violence and hostility, and as a consequence, can only be stopped through the use of extreme measures such as physical as well as psychological torture, such an argument only seeks to emphasise the reciprocity principle that would hamper the efforts of the United States to obtain intelligence from detainees (Evans, 2005). This essay recommends that the US security agencies must strive to show its commitment to the protection of fundamental human rights and that intelligence on terror activities should be extracted through humane and legal means. As Evans (2005) further states, America’s willingness to abide by international conventions has a direct effect on the willingness of other nations to follow them due to its position as a policy leader (Evans, 2005). This will not only help in protecting the integrity of the US security forces but also help to safeguard America’s moral standing in the war against terrorist groups such as Al Qaeda that have no international obligations or sensibilities (Evans, 2005). The US cannot hope to emerge victorious on its war against terror unless it uses just means. This paper also recommends that all senior homeland security officials who approve or tolerate the torture of detainees should be held accountable in order to send a clear message that future abuse of detainees in the name of extracting information will not be permitted (Evans, 2005).
This paper has examined some of the arguments for and against the use of torture by the US security agencies to extract information from terror suspects, and whether acts of torture can be justified. While supporters of the use of torture as an interrogation technique hold that it would help in ‘softening’ the suspects to provide timely information especially in the ticking bomb scenario, this argument has been found to be weak since there is empirical evidence to show that some of the information extracted is usually unreliable. While it is true that security agencies must choose the lesser evil for the protection of millions of innocent lives, they must not resort to torture with impunity. After all, as Bellamy (2006) argues, there are other equally effective legal methods of extracting information from terror suspects. As such, there is no moral or ethical justification for the use of torture in the war on terror.