Torture has always been with us and will be so for as long as there is war, crime, sadism, or a feeling that something will be served by degrading others. What has changed since 9/11 is that its existence is now admitted and even defended. Now the so-called War on Terror has started a debate in the US over whether torture should be practiced as a matter of national policy (14-DEC-04).
Inside the American administration are those who hold that those suspected of terrorism should be subject to intense pain and psychological terror in order to extract information that might lead to apprehending those about to commit an act of terrorism, or in the jargon pinpoint the location of a “ticking bomb”.
There are two basic arguments for torture and how it can be made constitutional or at least would not be anti-constitutional despite the fact that the US has signed international treaties outlawing torture. The first, argument and probably the one that has gained most currency is that proposed by Harvard law professor, Alan Dershowitz, Professor Dershowitz is one of those people whose name is often appended with, “the human rights lawyer” or “the civil liberties lawyer”. In his now famous Los Angeles Times op-ed piece a few years ago he suggests that if torture exists it should be authorized by law and should only be done after a judge has issued a torture warrant in each case. It should be said that Prof Dershowitz is against torture.
He has offered some highly improbably hypotheses. Consider this one: A kidnapped child has been buried in a box with only two hours of oxygen left. The kidnapper refuses to divulge the child’s whereabouts, so should we consider torture? He actually does not answer the question himself, but if we examine this hypothetical within the terms Dershowitz suggests. Would it not take time to get a judge to give a torture warrant, which could only be granted under very strict conditions? Would it then take time to inflict the torture to get the information? Has not two hours elapsed already?
But leaving aside hypothetical cases Dershowitz argues that “no doubt that if an actual ticking bomb situation were to arise, our law enforcement authorities would torture,” then, he says, “the real debate is whether such torture should take place outside of our legal system or within it.” The answer to this question is clear for Dershowitz: “If we are to have torture, it should be authorized by law” because “democracy requires accountability and transparency.”
He also argues that contrary to popular belief torture is not unconstitutional. So there you have it, a liberal society is one governed by the rule of law, anything outside that is illiberal and even a return to a Hobbesian state of nature. However, if you can stretch the rule of law to cover even abandonment of those values upon which liberal society is based, there is no need to worry because the rule of law has been maintained. In Dershowitz’s world law and morality have nothing in common.
The second argument is probably more scary, because if its provenance, right at the centre of the Bush administration. This argument says that as the US is at war the President has extra powers and can override treaties and laws made by congress.
According to Anthony Lewis in the New York Review of Books: “Reading through the memoranda written by Bush administration lawyers on how prisoners of the ‘war on terror’ can be treated is a strange experience. The memos read like the advice of a mob lawyer to a mafia don on how to skirt the law and stay out of prison.
Avoiding prosecution is literally a theme of the memoranda. Americans who put physical pressure on captives can escape punishment if they can show that they did not have an “intent” to cause “severe physical or mental pain or suffering.” And “a defendant could negate a showing of specific intent…by showing that he had acted in good faith that his conduct would not amount to the acts prohibited by the statute’.”
Lawyers appointed to the Department of Defense and other government departments engaged in the most amazing legal gymnastics and searched for ways over, under and around the law and the US Constitution. One memorandum stated: “In order to respect the President´s inherent constitutional authority to manage a military campaign… (the prohibition against torture) must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority… Congress may no more regulate the President´s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield…. Any effort by Congress to regulate the interrogation of unlawful combatants [terrorists] would violate the Constitution´s sole vesting of the Commander-in-Chief authority in the President.’
Memos seek ways to avoid the Geneva Conventions by suggesting that the Convention deals with states and al-Qaeda is not a state. The Bush administration has argued that the US base at Guantanamo Bay in Cuba, where prisoners are being held, is part of the US as it is within the special naval and maritime jurisdiction of the US. It has also argued in a case before the Supreme Court that Guantanamo is under Cuban sovereignty and therefore outside the jurisdiction of the US courts.
At the same time it is looking increasingly obvious that the torture that went on at Abu Ghraib was part of a strategy rather than individual soldiers taking it into their own hands torture and humiliate prisoners.
Again as Anthony Lewis said: “The assertion in the various legal memoranda that the President can order the torture of prisoners despite statutes and treaties forbidding it, was another reach for presidential hegemony. The basic premise of the American constitutional system is that those who hold power are subject to the law. As John Adams first said, the United States is meant to be a government of laws, not men. For that Bush´s lawyers seem ready to substitute something like the divine right of kings.” Which means, of course, that the new American empire is trying to create its own emperor.
All these arguments are taking place in an environment devoid of morals; it is as if the War on Terror is the first post modern war where value judgments and morality have no place, where only a pragmatism rules and where the only imperative is do it if we can get away with it.
The view is that they can get away with it. Despite misgivings from the military, field manuals that outline what is permitted when interrogating prisoners have been changed, seemingly on the orders of Donald Rumsfeld. It will be interesting to see if those changes were reflected in the “techniques” used at Abu Ghraib, for instance. These manuals have not been made public.
The evidence against the Bush administration and its use and condoning of the use of torture is mounting. Lawyers such as Alan Dorshowitz have, unwittingly it must be said, created an atmosphere where the discussion on the use of torture has become respectable. Lawyers have tried to ensure that while the US is at war the president can order the use of torture without this undermining the constitution and the result is the recent leaked Red Cross report, which has accused the Bush administration of intentional physical and psychological torture of prisoners being held at Guantanamo Bay. In that report, which was reported first in the New York Times, doctors joined lawyers as another professional group with flexible ethics as they liaised with the interrogators. One report said that the prisoners were subjected to a regime of Abu Ghraib-style torture and sexual humiliation.
Can there be any argument for allowing torture and is Alan Dershowitz correct to say that as it will take place anyway why not at least make it subject to some sort of control? No, his argument is fallacious. If torture is illegal, then by definition it operates outside the law. So if a torture warrant is created, obviously torture with warrant would be within the law. Why one wants to bring torture within the law is difficult to ascertain, because all that would do is make legal torture legal, with illegal torture remaining outside the law.
There is also the reason for torture. If it is for the very rare case of the “ticking bomb” then there remains the question of the nature of the information gained from a “suspect” giving information under threat of their finger nails being pulled out. Do we not already know of many cases where hard interrogation, not going as far as torture, can lead suspects to admit to anything or give whatever information they believe will end the ordeal however short term.
But why has torture become a respectable topic to discuss? Could it be the nature of the enemy? Could it be that the ideals of the Enlightenment that so informed the constitutions of Europe and US as well as the very concept of human rights cannot be applied when facing an enemy that is seen as irrational, medieval and fundamentalist.
Could it be that the new enemies of the United States are seen as so completely outside the pale of rationality that the only defense left to liberal society is to throw off its liberalism and descend into barbarism in order to defend itself, which, of course, begs the question; what are we defending?
Michael Foley is a journalist & academic who at the Dublin Institute of Technology and is a regular contributor to Index on Censorship.
The forthcoming issue of Index on Censorship – Issue 1/05: Facing up to Torture, includes articles by Stan Cohen, Caroline Moorehead, Andrew Graham-Yool and others on the threat institutionalised torture poses to free expression.
