Ethical arguments regarding torture

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Ethical arguments have arisen regarding torture, and its debated value to society. Despite worldwide condemnation and the existence of treaty provisions that forbid it, some countries still use it. The ethical assertion that torture is a tool is at question.

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[edit] Premise

The basic ethical debate is a matter of deontological versus utilitarian viewpoints. The utilitarian thinker believes the ends can justify the means; the intended outcome of an action is held as the primary factor in determining its merit or morality. The opposite view is the deontological, from Greek "deon" (duty), which proposes general rules and values that are to be respected regardless of outcome.

[edit] History

Historically, torture has been reviled as an idea, yet employed as a tool and defended by its wielders, often in direct contradiction to their own averred beliefs. Judicial torture was a common feature of the legal systems of many countries including all Civil Law countries in Europe until around the French Revolution. This was part of ancient Greek and Roman Law theory that remained valid in Europe. Roman Law assumed, for example, that slaves would not tell the truth in a legal court as they were always vulnerable to threats from their owners. Their testimony could only be of value if it were extracted by a greater fear of torture. Legal scholars were well aware of the problems of false testimony produced by the threat of torture. In theory torture was not meant to produce a confession as such, but rather details of the crime or crime scene which only the guilty party would know.

The Spanish Inquisition is probably the most infamous example, in which torture was used to extract information regarding allegations of heresy. In early modern times under certain conditions, torture was used in England. For example the confession of Marc Smeaton at the trial of Anne Boleyn was presented in written form only, either to hide from the court that Smeaton had been tortured on the rack for four hours, or because Thomas Cromwell was worried that he would recant his confession if cross examined. When Guy Fawkes was arrested for his role in the Gunpowder Plot of 1605 he was tortured until he revealed all he knew about the plot. This was not so much to extract a confession, which was not needed to prove his guilt, but to extract from him the names of his fellow conspirators. By this time torture was not routine in England and a special warrant from King James I was needed before he could be tortured. The wording of the warrant shows some concerns for humanitarian considerations, the severity of the methods of interrogation were to be increased gradually until the interrogators were sure that Fawkes had told all he knew. In the end this did not help Fawkes much as he was broken on the only rack in England, which was in the Tower of London. Torture was abolished in England around 1640 (except peine forte et dure which was abolished in 1772).

The use of torture in Europe came under attack during the Enlightenment. Cesare Beccaria's On Crimes and Punishments (1764) denounced the use of torture as cruel and contrary to reason. The French Revolution abolished the use of torture in France and the French Armies carried abolition to most of the rest of Europe. The last European jurisdictions to abolish legal torture were Portugal (1828) and the canton of Glarus in Switzerland (1848).

Under codified legal systems such as France, torture was superseded with a legal system that is highly dependent on investigating magistrates and the confession remains The Queen of Proofs. Such magistrates are often under pressure to produce results. It is alleged that in many cases police violence towards suspects has been ignored by the magistrates. In the adversarial system of Common Law used throughout the English speaking world, the experience is a different one. As the two parties have to convince a jury whether the defendant in a case is guilty or innocent of a crime, if the defence can persuade a jury that reasonable doubt exists over the credibility of a confession then the jury is likely to disregard the confession. If the defence can show that the confession was made under such duress that most people would make such a confession, then the jury is likely to question the confession's credibility. Usually the more duress that can be shown to have been used by law enforcement by the defence, the less weight most juries will place on confessions. In Britain partly to protect the individual against police brutality and partly to make confessions credible to a jury, all interviews with a suspect are audio taped on a machine which make two simultaneous copies one for the police and one for the defendant. In Northern Ireland, where society is more polarised than in the rest of the United Kingdom, which means that allegations of police brutality are perceived by sections of the community to carry more credence, interviews are video taped.

Since the European Convention on Human Rights was adopted by the Council of Europe in 1950 to date there have been no prosecutions bought to the European Court of Human Rights where the ECHR have ruled that torture took place. It has been alleged that in certain circumstances torture, even though it is illegal, may have been used by some European countries. In "anti-terrorist" campaigns where information is needed for intelligence purposes, and not to obtain a confession for use in court, there is a temptation by the security forces, whether authorised by governments or not, to extract intelligence from alleged terrorists using any means available including the use of torture. Where there is a time component to a crime, for example in a kidnapping case, there is also a temptation for the police to try to extract information by methods which would nullify the use of such information in court.

[edit] Criticism

[edit] Proponents

Some scholars have argued that the need for information outweighs the moral and ethical arguments against torture.

Yasmin Alibhai-Brown in an opinion article[1] published in The Independent on 23 May 2005 wrote:

The Harvard law professor Alan Dershowitz argues that in extreme situations, in order to prevent a tragedy, a "torture warrant" should be issued by U.S. courts to use hot needles under the nails, for example. This would make the use open to security, even thought it would be against the Geneva conventions [and other international treaties]. This utilitarian position is both contemptible and persuasive...

Two academics at Deakin University in Victoria, Australia, Professor Mirko Bagaric, a Croatian born Australian based author and lawyer,[2] who is the head of Deakin University's Law School, and a fellow Deakin law lecturer, Julie Clarke, published a paper in the University of San Francisco Law Review arguing that when many lives are in imminent danger, "all forms of harm" may be inflicted on a suspect, even if this might result in "annihilation".The reasoning behind the proposal to legalise torture is that:[3]

as a society we would accept that one person being killed to save thousands is legitimate. ...
Of course, it is far more repugnant to inflict harm on an innocent person than a wrongdoer," said Professor Bagaric, "But in some extreme cases, where it is almost certain someone has information that could prevent many lives being lost and there is no other way to obtain that information, the mere fact that they're not directly involved in creating that threat doesn't mean they can wash their hands of responsibility.

It was observed that Bagaric "was not the author of what he wrote, all he did was reintroducing Alan M. Dershowitz’ thesis, Sharon’s [Israeli] government legal adviser and the theorist of the legal torture".[4]

When reviewing Alan Dershowitz's book, "Why Terrorism Works: Understanding the Threat, Responding to the Challenge" Richard Posner, a judge of the United States Court of Appeals for the Seventh Circuit, wrote

If torture is the only means of obtaining the information necessary to to prevent the detonation of a nuclear bomb in Times Square, torture should be used - and will be used - to obtain the information. ... no one who doubts that this is the case should be in a position of responsibility.

– Richard Posner, The New Republic, September 2002[5][6]

On December 20, 2005, Albert Mohler, president of the Southern Baptist Theological Seminary addressed the problem of whether torture should be used by American military forces in order to gain important information from terrorist suspects. Although he spoke out against any form of legal codification, he did state the following:[7]

Under certain circumstances, most morally sensitive persons would surely allow interrogators to yell at prisoners and to use psychological intimidation, sleep deprivation, and the removal of creature comforts for purposes of obtaining vital information. In increasingly serious cases, most would likely allow some use of pharmaceuticals and more intensive and manipulative psychological techniques. In the most extreme of conceivable cases, most would also allow the use of far more serious mechanisms of coercion – even what we would all agree should be labeled as torture.
...I would argue that we cannot condone torture by codifying a list of exceptional situations in which techniques of torture might be legitimately used. At the same time, I would also argue that we cannot deny that there could exist circumstances in which such uses of torture might be made necessary.

[edit] Opponents

Most experts agree that torture is an unreliable means of obtaining useful information.[8] However many states have used torture not to extract information, but as a means of terrorising their populations or specific communities. Franz Fanon reports the French in Algeria using "preventative torture" on entirely innocent people to stop them doing anything in future.[citation needed] Although claiming to use torture in order to save lives,[citation needed] the French colonial regime killed between 1-1.5 million Algerians in the process.[vague] In most countries torture is illegal, and this being so, outside the normal framework for establishing guilt or innocence. Therefore an abnormally large proportion of torture victims are either innocent (apart from membership of target communities) or of mistaken identity. For example Khalid el-Masri, an innocent German citizen was kidnapped and tortured, having been mistaken for Al-Qaida chief Khalid al-Masri. The Red Cross in Iraq estimated that 80% of detainees at Abu Ghraib were the "wrong people".[citation needed] Toleration of torture and arbitrary detention has been likened to a "cancer of democracy" in a book of the same title by Pierre Vidal-Naquet, which begins to undermine all other aspects of a state's legitimacy.

In response to the article by Professor Bagaric and Mrs Clarke, Amnesty International spokeswoman Nicole Bieske, who is also a lawyer, was stunned by the idea of regulating torture.

It's astonishing and appalling that somebody would hold this opinion in relation to such a fundamental issue as torture, and to be justifying it on moral as well as pragmatic grounds...[9]

Professor Bagaric and Mrs Clarke submitted the paper to an American law journal because of:

the kind of emotive comments that I've had here in Australia, saying that this view is horrendous, unthinking, and irresponsible.[9]

On the 20th anniversary of the coming into force of the United Nations Convention against Torture, Philip Hensher writes "Civilisation is at once compromised if, in defence of other freedoms, it decides to regress, to accept the possibility of torture as it is seen in the movies."[10]

[edit] Ticking time bomb scenario

Main article: Ticking time bomb scenario

In law enforcement, one perceived argument is the necessity of force to extract information from a suspect when regular interrogation yields no results and time is of the essence, as can be seen in the most frequently cited theoretical example is the "ticking time bomb" scenario, where a known terrorist has planted a nuclear bomb. In such circumstances, it has been argued, that not to use torture would be wrong, and by others that using torture would change society in a manner which would be worse.

The obvious rebuttal to this stance is that no such scenario has ever existed. In addition, those situations resembling such a case were resolved without the need to torture any suspect. Furthermore, it is asked whether torture would be limited to suspects, or whether one could torture the family and friends of this detainee to make him compliant.

  • Supporters cite cases where torture has worked:
In the case of Magnus Gäfgen, who was suspected of kidnapping 11-year-old Jakob von Metzler and arrested in October 2002 by German police. Police surveillance had observed Gäfgen pick up a €1 million ransom demanded from the von Metzler family and proceed to go on a spending spree. After the ransom was paid, the boy was not released. Fearing for the boy's safety Frankfurt's deputy police chief, Wolfgang Daschner, had Gäfgen arrested and when he would not talk threatened to cause Gäfgen severe pain. Gäfgen told police where he had hidden von Metzler's body. In this case torture was threatened, but not used, to extract information that, in other circumstances, could have saved a boy's life. The ethical question is whether this can ever be justified. Wolfgang Daschner felt that in the circumstances it was justified.
  • Opponents cite horror stories of rampant abuse:
German Chancellor Merkel, in an interview on January 9, 2006 in reference to the Metzler case stated "The public debate showed that the overwhelming majority of citizens believed that even in such a case, the end does not justify the means. That is also my position."[11]
In Chile and Argentina in the 1970's and 1980's thousands of people "disappeared" and were tortured or killed or both.

Beyond that, another reason is that torture fails to elicit the expected information because the subject is saying anything interrogators want to hear to stop the ordeal, or worse: the detainee is innocent. By adopting a "the ends justifies the means" approach this would allow nine innocent people to be tortured as long as the tenth offered a full confession.

It has been estimated that as few as two dozen of the 600 detainees at Guantanamo had any potential intelligence value even if it could be obtained from them.[12]

[edit] See also

[edit] References

  • O'Brien, William V. "Law and Morality in Israel's War with the PLO". New York: Routledge. 1991.

[edit] Further reading

[edit] Footnotes

  1. ^ Yasmin Alibhai-Brown: People matter more than holy books Editorial and Opinion (Page 31) in The Independent Monday 23 May 2005. Includes commentary on how some Americans have changed their attitudes to torture.
  2. ^ Mirko Bagaric
  3. ^ Bagaric,Mirko & Clarke Julie;Not Enough Official Torture in the World? The Circumstances in Which Torture Is Morally Justifiable University of San Francisco Law Review, Volume 39, Spring 2005, Number 3, pp. 581-616.
  4. ^ Opinion-editorials decyphered: Torture: the visible part of the iceberg - 20 May 2005
  5. ^ Michael Slackman What's Wrong With Torturing a Qaeda Higher-Up?, New York Times 16 May, 2004
  6. ^ Philip Hensher Hollywood is helping us learn to love torture, The Independent, 26 June 2007
  7. ^ Torture and the War on Terror: We Must Not Add Dirty Rules to Dirty Hands - albertmohler.com
  8. ^ Michael Slackman What's Wrong With Torturing a Qaeda Higher-Up?, New York Times 16 May, 2004
  9. ^ a b Minchin,Liz. Make torture legal, say two academics, The Age 17 May, 2005
  10. ^ Philip Hensher Hollywood is helping us learn to love torture, The Independent, 26 June 2007
  11. ^ Spiegel Interview
  12. ^ U.S. Said to Overstate Value of Guantánamo Detainees

[edit] External links