Perhaps the most pertinent issue regarding the justification of torture is the ongoing and vibrant debate surrounding the 'tic
For as long as the memory of recorded history reaches, there has been evidence various methods of torture as a means to control populations, extract information or enforce policy. From cutting off hands to thumbscrews or the rack, methods of torture were widely practised and accepted as a norm by states across the globe. It was only with the advent of the enlightenment and eventually culminating in the immediate post-war era following the Second World War that this view of accepting torture changed and many advocated its ban. Through the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), methods of torture were near universally publicly condemned, yet its subversive practise continued in many countries, including the United States in battling communism.1 However, this changed dramatically with the events of September 11th, 2001 and the subsequent War on Terror waged by the Bush Administration. Torture was suddenly advocated as a lesser of two evils, and the only way to extract relevant information from those willing to die for their cause. Yet the definition of torture as set out in the CAT is specifically worded to protect people from being subjected to abuse in order to relinquish information otherwise not willing to give up.2 Thus it becomes a pertinent question as to whether these methods are appropriate when one considers the circumstances required to combat terrorism, and this essay shall attempt to answer this question by looking a various arguments for and against the use of torture in combating terrorism.
The Ticking Bomb
Perhaps the most pertinent issue regarding the justification of torture is the ongoing and vibrant debate surrounding the 'ticking bomb' concept. This is a notion that supposes that authorities have arrested a known terrorist who has knowledge of an imminent attack and how to stop or prevent it. For example, ASIO has Abu Bakar Bashir under surveillance, and legally arrests him just after broadcasting that there is an imminent attack (i.e. within hours) in the Melbourne CBD and that thousands of civilians will die. Would it be justified to use torture to extract the information necessary to prevent the attack and save the civilian lives? Hypothetical cases similar to this where time is of the essence are used as examples of where torture could be justified as the lesser of two evils, and as a trade off of rights. However, this hypothetical example is widely used as a case where torture is excusable, can be seen as misleading as an imaginary case because of several notions. These notions are idealisation and abstraction, whereby idealisation is the 'addition of positive features to an example in order to make the example better than reality' and abstraction is 'the deletion of negative features of reality in order to make the example still better than reality.'3 Combined, these two notions often arise in hypothetical examples to make them better examples, often in advocating a particular view. The ticking bomb is a perfect example of this, as it is the best example where the different sides of the debate on justified torture meet and sometimes agree. The question of morality, particularly with reference to a ticking bomb is a highly philosophical and contentious one, brings even the strongest proponents of torture into debating the justification of torture with reference to this case. The essence of the argument essentially comes down to torture as a means to save life, that is to say that torture can be justified by saving the lives of innocents. This argument is supported by many, including a memo by the United States Justice Department to the White House that centred on the argument that 'necessity and self defence could provide justifications that would eliminate any criminal liability.'4 Moreover, this argument suggests that this form of torture is 'far removed from any of the instances of the barbaric, punitive forms of torture mentioned by the critics.'5 Effectively, a notion of torture as a form of self-defence, with intentions of saving lives and not as a form of punishment or retribution. This is not a crazy or unrealistic proposal, as when one compares the notion of self-defence in most domestic law regimes to the idea of advocating torture as a means of collective self-defence, there are distinct similarities. For as long as the concept of 'nation' has been around, the right of self defence has been accepted as customary law. If there is undoubted evidence of an imminent attack, does a nation not have a right to act in its interests of self-defence in protecting its citizens? If countries and individual security officials such as members of the army or police force are allowed to kill in self-defence or to protect the civilian population, then the difference between torturing and killing is debateable.
Firstly, in the ticking bomb hypothetical, there is always the assumption that the terrorist caught is undoubtedly a terrorist. This is can often be far fetched, as many captured or arrested terrorist suspects are exactly that, suspects. The sheer number of those arrested and detained since the beginning of the 'war on terror' that have been released due to lack of evidence is testament to this.6 In assuming that the person detained is undoubtedly a terrorist is vastly different from reality, and moreover, if enough evidence exists to remove any doubt that the person detained is a terrorist and responsible for an imminent attack, then the probability of the authorities needing to torture the suspect for information is significantly reduced. However, in justifying the torture of a suspect, the guilt or intentions of that particular person must be without a doubt. Many of the proponents of the justification of torture, from Alan Dershowitz to Mirko Bagaric and Julie Clarke require that this be the case. Secondly, the ticking bomb concept immediately assumes that the terrorist has the required information, and is going to give the information swiftly and correctly. It does not take into consideration the realities of interrogation, namely the time involved, and as mentioned previously, the issue surrounding the quality of information supplied. It is assumed that the torture is going to work effectively, and if it doesn't, then the moral justification is instead based on a gamble or calculated guess at best. Essentially what is occurring is that one of the most important human rights is being removed because it is the 'lesser of two evils', yet also on the gamble that torture will wield results more often than not. What if legalised torture does not wield results? Undoubtedly the person being tortured will have a point at which they will give information to stop the pain, but whether that information is either accurate or true is another story altogether. An excellent example of this is Khalid Sheik Mohammed, who told American interrogators everything they wanted to hear, but the intelligence he gave was later totally discredited.7 He merely said what interrogators wanted to hear in order to stop them torturing him. Whilst his involvement in terrorist organizations was not under any real doubt, no doubt this will not always be the case. More importantly, the assumption of guilt does not take into account one of the most important aspects of most legal systems - that is the right of due process. Especially in the ticking bomb situation, culpability is being decided before any attempt at establishing guilt beyond reasonable doubt. Whilst there are undoubtedly cases where guilt is obvious, in indoctrinating the ability to torture in 'extreme' circumstances, the right to a fair trial is being eroded significantly.
However, perhaps the most pertinent issue revolves around an issue raised Professor Henry Shue, in which he comments that 'history does not present us with a government that used torture selectively and judiciously.'8 Governments empowered with such ability to torture do not selectively use such power; it becomes a slippery slope where torture gets used more and more regularly. This is a highly significant point to raise, as it begs the important question in the ticking bomb example of how big must an attack be to justify the use of torture, namely the question of what the trigger point is. Is the potential death of thousands of innocents enough or merely the potential death of a few innocent civilians? The question revolves around where the line gets drawn, for this is central to justifying the morality of the use of torture. It has been attempted in many forums to suggest that the magnitude of harm that could be avoided is a valid reason for the use of torture. Generally, the use of terms from the ICCPR Article 6, relating to the right to life is used in defence of this notion, suggesting that torture should only be confined to situations where the right to life is imperilled.9 This again raises the question of definition, as since torture is non-derogable under international law, which right takes precedence? Does the right to life over-rule the right against torture? More than likely the answer falls again to the issue of quantifying and the numbers of lives potentially lost. If governments wish to use torture to extract information in this example, then at what point does the use of torture become justified? In answering this, there are two factors that must be understood. Firstly, and as mentioned above, if there is enough information available to know how large an impending attack is or where the perpetrator is, then it is also quite likely that torture will not extract significant information that is not already known. Secondly, and as Professor Shue notes, the likelihood of a government only using torture in selective cases is highly unlikely. Once the use of torture is employed in selective cases, the chance of it reoccurring in other cases where an interrogation has stalled becomes more and more likely. Again, where does the line get drawn? Unless there is some form of independent oversight body that ensures that torture is only used in the selective, extreme circumstances, the likelihood of torture being used on a more regular basis is quite possible. Whilst the ticking bomb scenario could be used as the most acceptable situation of the use of torture, there are problems associated with this use that begin with the extreme situation and end with widespread use. No matter what arguments are put forward, there 'is no such thing as a little bit of torture'.10 Another problem with the ticking bomb scenario arises from the abstractions surrounding the case; most relevant of which is the question of whether this is the first instance of torture by the relevant authority. If so, then it is likely that the torturer is not a professional, and not used to carrying out such duties, equating to an unsuccessful attempt at extracting information.
Right To Life over Freedom From Torture
Much of the debate over the justifications for the use of torture lies in the debate over which is the greater right - the right to life or freedom from torture. Both are indoctrinated in the ICCPR as Article 6 and 7 respectively, and both are considered to be non-derogable rights under Article 4. This is often referred to as the 'lesser of two evils' debate, and takes the assumption that since torture exists today, then there should be a debate about whether one right should take precedence over the ...
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Right To Life over Freedom From Torture
Much of the debate over the justifications for the use of torture lies in the debate over which is the greater right - the right to life or freedom from torture. Both are indoctrinated in the ICCPR as Article 6 and 7 respectively, and both are considered to be non-derogable rights under Article 4. This is often referred to as the 'lesser of two evils' debate, and takes the assumption that since torture exists today, then there should be a debate about whether one right should take precedence over the other. President Bush has been quoted as saying freedom from torture is 'an inalienable human right' but interestingly followed this with comments clearly intending that the only victims of torture are those that are 'stand(ing) up for their right to freedom.'11 This is an attempt to remain within the framework of the international law and maintain the perception that torture only occurs in cases where the same people are having their right to life infringed upon. But instead attention should be turned to the notion of torture being justified as being appropriate because the intelligence gathered is going to protect innocent life - thus meaning the right to life is the more important human right and freedom from torture should be pushed aside in order to protect this right. Again this concept is drawn back to a ticking bomb scenario, as it is assumed that torturing known terrorists is going to provide information that saves lives, perhaps in the immediate future, and that this takes precedence above all else. But thus arises an important debate in the uses of torture in combating terrorism, as whilst governments may say one thing, in reality the situation in Abu Ghraib and Guantanamo Bay appears to be vastly different. If governments are so willing to speak out against torture, then an explanation of the human rights abuses as reported by Amnesty International and other international organizations and as seen in the media regarding Abu Ghraib is required. It should not have to be a trade off according to politics, as international law is quite clear on the status of all human rights. The problem, as with many issues in international law, is that many of the documents released are not binding on countries, but must remind countries of their responsibility under international law. An example of this is Human Rights Resolution 2005/80 from the Office of the High Commissioner for Human Rights (OHCHR), which throughout calls for nations to comply with their obligations of all human rights and fundamental freedoms.12 This document is particularly aimed at protecting human rights and fundamental freedoms in combating terrorism, and stresses how 'the respect for human rights, democracy and the rule of law are interrelated and mutually enforcing.'13 Whilst this document does not bind states, it does however give a good indication of the political climate that currently exists. By constantly affirming that the enforcement of human rights in the context of counter-terrorism, it shows an important factor in the role of torture as an appropriate measure to combat terrorism, namely the importance of recognising the long term implications. This is echoed in General Assembly Resolution 288, regarding the UN global terrorism strategy, which specifically implements measures 'to ensure the apprehension and prosecution ... of perpetrators of terrorist acts, in accordance with the relevant provisions of national and international law, in particular human rights law.'14 Whilst torture might be effective in extracting information to prevent an attack, the risks of such are far outweighed by the longer-term implications. Torture can lead to revenge attacks, but most importantly its use undermines the long-term aims for combating terrorism, it merely identifies a short-term solution to a problem. Terrorism is an idea, not a physical thing that can war can be waged upon, and torturing people only strengthens the resolve of those committed to the idea. The resolution by the UN General Assembly echoes this, as the importance of maintaining protection of human rights in combating terrorism is fundamental to ensuring the international rule of law and eliminating terrorism. Thus the importance of viewing the right to life versus the freedom from torture, one must appreciate the effects of such a trade off, regardless of what is advocated by the ticking bomb theorists. The ticking bomb scenario has its own problems, and one must not take the approach that it is inevitable or likely, as this will possibly end in the degradation of many other non-derogable rights.
Torture as an Effective Tool
Whilst it can be endlessly debated as to whether or not torture is ethical, under what circumstances it might be ethical and whether freedom from torture is a non-derogable right, essentially the crux of the issue lies in whether or not it is effective as a means of extracting information. However this question is essentially problematic, as within this lies the important interpretation of what constitutes torture. There have been various definitions set forth by various institutions, but for the purposes of this essay as set out above, the definition in Article 1 of the CAT shall be used. This definition shall be used because the political agenda in which it was set out was intended to encompass all forms of abuses towards suspects or internees, particularly with reference to obtaining information. Every person has a desire to avoid pain, and most will do whatever it takes to avoid it, including revealing information that could be detrimental to their cause. There are numerous examples throughout history of information being extracted through torture, from the French in Algiers to the British in Northern Ireland and the apartheid era in South Africa being the most recent and controversial. Whilst there are undoubtedly those whose conviction remains strong through most forms of torture, there eventually will be a weakness or particular method that will wield the information required. An example of this is put forward by Paul Van Vuuren, part of a hit squad snatching activists in South Africa during apartheid told a British journalist 'There are all these movies about Rambo and stuff where they put electricity on his bodies and he's not talking. That's bullshit. There is no-one in the world; I haven't yet seen one guy that don't talk.'15 This highlights a widespread view that any information, at some level, can be extracted through effective torture, and this information can be used to save lives. However, in attempting to justify the use of torture, it cannot be warranted simply because it is effective in extracting information, for whilst the torturer might extract information not yet known, whether and how effective this information will be is another issue entirely. This is essentially the core of the issue surrounding the use of torture, as those advocating its use often look to the fact that everyone has a point at which they will talk, yet many point to the fact that the information gained from such coercive interrogation sessions is often unreliable. Some interrogators even go further stating that in fact the best intelligence is gathered when the captives were treated well. Colonel Jack Jacobs stated on MSNBC in 2005 that when he was in Vietnam 'the best intelligence and (we) had the most success with captors if we gave them cigarettes, medical care, food (and) water. Almost always, you get the best success from treating people properly.'16 American intelligence agencies have long had differing views on the uses of torture, but since September 11 these views have been particularly polarised, as until this time there was a prevailing view in the CIA that torture didn't work, as when compared with intelligence gathered electronically, intelligence gathered through torture was unreliable.17 The view of many in the FBI is typified by agent Jack Cloonan, who in his experience of interrogating suspects, building a rapport with the suspect and ensuring that they are treated properly often results in the best intelligence being gathered, supports this view. In fact he even goes as far as saying that in the counter-argument whereby if the killing of one person through interrogation and if 'I get the information and it saves Washington, D.C., or it saves New York City or Chicago, it's well worth it. The likelihood of that happening is so slim I think it's almost impossible.'18 This in effect means that the ticking bomb scenario as proposed by so many proponents of torture is in fact an unrealistic situation, and more importantly, he argues that when torture is carried out, it brings an element of revenge to those on whom it was carried out on, and the victims of that are 'you, me, the public and our military overseas'.19 So here we come to the crossroads, as it can be evident that both sides have different view on torture as an appropriate method to combat terrorism. Yet perhaps the answer in fact lies in the reality, as almost all people who partake in the debate on the effectiveness of torture, field experts and academics alike, admit that every person undoubtedly has a breaking point. As this lies at the core of the argument of those that advocate the use of torture, and the issue of the reliability of the intelligence is overlooked in favour of a 'quick fix' approach, we can find something of an answer. The value of removing some of our basic human rights it not outweighed by torture if the intelligence gathered in removing these rights is not always effective. This is best used in the example of the Algerian War of Independence in the late 1950s and 1960s, with the French use of torture in attempting to put down the uprising. This was an attempt by the French to maintain their colonial control of the country through systematic torture, both in gathering intelligence and as punitive measures.20 However this system backfired immensely, as whilst the French won the battle for Algiers against the Algerian National Liberation Front (FLN), ultimately public outrage at the repressive nature of the French led to France withdrawing from their former colony. The Algerian people were galvanised in their resistance against their colonial overlords, and were in fact less willing to remain a colony. This is a perfect example of exactly the importance of the uses of torture as an appropriate measure for combating terrorism, as whilst torture in gathering intelligence will undoubtedly lead a suspect to talk, the two vital factors of whether the information is likely to be accurate and even more paramount that torture is never really going to be appropriate as a long term measure to combat terrorism as it is likely to actually be counter-productive.
Legal Comparisons
One particular way of looking at justifying the use of torture is by comparing the use of torture to other areas of legalised practise. The two most relevant examples are laws regulating police shooting in a domestic scenario, and the laws governing armies in times of war and the targeting of civilians. Both of these scenarios have come under scrutiny at some point, yet both are considered legal in both domestic and international law.
Police shootings can be very instrumental in comparing to the use of violence by a state to protect its citizens, as the use of force by police in order to save lives is not questioned or debated in the same manner as torture. Yet the costs of police shootings can be easily compared, as the examples almost always arise in heat of the moment situations where an officer is forced to make a life or death decision (often involving his own life) whereby innocent lives may be saved. However, interesting to note in comparison to the torture debate is that often the lives saved can be very few, not thousands as debated in a ticking bomb scenario. In an armed standoff, the police force taking down a suspect or target may only save the life of one innocent civilian, or in a hostage situation, maybe 10 or 20. Very rarely will a hostage situation involving an armed standoff involve saving thousands of innocents as proposed in many of the hypothetical cases put forward by proponents of the use of torture. Moreover there is little or no debate surrounding questions of morality when a police officer is forced to take down a suspect, which can often end the life of the target. Yet torture does not impede on the right to life, as many people tortured in fact live on, albeit with significant mental scars. In fact governments do not ban police shootings, they regulate them in law, citing the need to protect life. An example of this can be found in fact in the ASIO Legislation Amendment (Terrorism) Act 2003, where the use of force in taking a person into custody an officer must not:
'Do anything that is likely to cause the death of, or grievous bodily harm to, the person unless the officer believes on reasonable grounds that doing that thing is necessary to protect life or prevent serious injury to another person (including the officer)'.21
Additionally, it continues to authorise the use of force if the suspect has been called on to surrender and refuses to do so and the officer believes that there is no other way to take them into custody. As can be evidently seen, not only does this legislation authorise the use of force, but also the responsibility lies entirely with the judgement of the particular officer. More importantly, the use of force is permitted even to prevent serious injury, not just protect life. Yet when discussing the use of torture, and the possibility of protecting life in large numbers, even the above legislation which allows such powers on attempting arrest, does not allow anywhere near such similar powers to such persons in detention.22 There is no public debate in the legislations surrounding the use of force in detaining such suspects, but the mere possibility of using torture once a suspect is detained is viewed as abhorrent in many circles. The only relative example whereby excessive force was used in arrest can be seen in the example of the wrongful shooting of Brazilian man Jean Charles de Menezes on July 22 2005.23 Here is an example whereby an innocent person was the victim of excessive police force who were attempting to prevent an attack on the London underground, and died as a result. In this example, the use of excessive force has been viewed as unnecessary but that the police were still acting in accordance with the law. Whilst debate raged as to whether this was an excessive use of force (the man was shot eight times)24, the more relevant issue appeared to be the fact that Menezes was not a terrorist. If the target was in fact Osman Hussain (a suspect believed responsible for the London Bombings the previous day that Menezes was confused with), then the likelihood of a public outcry over the shooting is no doubt reduced, as sympathy for such a victim is not likely to be great especially with the bombing so fresh in the public's mind. However, the essential issue of morality is not on the same level as torture, as torture raises a question of morality unparalleled in public debate.
The other important legal situation that can be compared to torture is the ability to kill civilians under the Geneva Conventions of 1949 and the Protocols Additional to them of 1977. Under this international regime, set out in particular in Geneva Convention IV, which is acknowledged as customary law, civilians are afforded protection from indiscriminate attacks and non-combatants are generally protected from attack or reprisals. However, Article 28 specifically states 'The presence of a protected person may not be used to render certain points or areas immune from military operations.'25 This Article clearly gives armies the ability to carry out operations provided that they are militarily justified attacks. Thus whilst the intentions of the Convention is to afford protection measures to those not partaking in the conflict, be they civilians or hors de combat such as wounded soldiers, essentially if a building or area can be justified as a military target then these protections are overruled. Yet only a few Articles later, in Article 31 it is stated that: 'No physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties.'26 Moreover, Article 32 prohibits:
'any measure of such a character as to cause the physical suffering ... of protected persons in their hands. This prohibition applies not only to murder, torture corporal punishment mutilation and medical or scientific experiments ... but also to any other measures of brutality whether applied by civilian or military agents.'27
Interestingly, this Article is applied to both civilian and military personnel who wish to carry out these prohibited actions. In this widely accepted and ratified document outlining the laws of war and occupation, the use of torture is explicitly prohibited, but the use of force against innocent or protected persons is flexible enough to be exempt if militarily just. This is a highly interesting point, as it can be argued, specifically in this day and age, that both a military operation and the use of torture to extract information can be seen as the unalienable national right of self defence. Why should a country be able to kill innocent civilians yet not be allowed to torture? It begs the question again as to whether freedom from torture is a more important right than the right to life, as one is protected in customary international law while the other is able to be derogated from. Perhaps the answer in fact lies in the reality that most countries in fact do not strictly adhere to this notion, something that shall be discussed later on in this essay. Yet more pertinently, it should be recognised that international law essentially deems it appropriate to kill civilians and yet explicitly outlaws the use of torture or even any physical methods to extract information. In analysing why this is the case one must ask why governments would be willing to remove the right to self defence via the extraction of information yet at the same time indoctrinate the ability of armies to have the ability to decide (within reason) whether a target is militarily viable. Surely in the late 1940's the capture of a Soviet physicist with knowledge of the strike capabilities of the atomic weapons in production by the USSR had the same or greater military value than any village containing enemy units in a conventional war. Instead it seems that the question of morality came into play, meaning with the experience of the brutality of the Nazi regime fresh in the mind, it was more simplistic and important to indoctrinate the banning of torture than to get involved in the complexities of attempting to ban methods of warfare. This is not to simplify the difference between the two concepts, but instead an attempt to understand the role behind legalising one concept and outlawing another. Whilst there are vast differences in terms of application, when talking about protecting human rights, why stop at torture and not protect all civilians from being collateral damage in a particular attack? Obviously there are two solutions when answering this, either a complete prohibition on civilian targets that are outweighed by military necessity or a removal of the prohibition of torture. Since torture is not taking life and is (at least in practical intent) an attempt to glean information in order to protect innocent life from an impending attack, then perhaps the solution lies in a more realistic approach to the circumstances that exist in today's world where torture could be deemed appropriate.
Are Other Methods Appropriate?
It has been advocated by some that there are levels of interrogation that do not constitute torture, and that these are appropriate methods of counter-terrorism. However this raises again the issue of what constitutes torture and each particular person's interpretation of such. There are methods such as water boarding (where a prisoner is bound and gagged and has water poured over them to make them think they are drowning)28 and other interrogation tactics approved by the US Department of Defence including 'stress and duress' tactics (such as prolonged hooding, extended food, sleep, sensory or water deprivation and being forced to assume positions intended to cause pain or sexual humiliation)29 that are all banned by international law, yet apparently practised in Abu Ghraib and Guantanamo Bay. These methods undoubtedly constitute torture, but other methods such as the use of truth serums like Sodium Pentothal are not quite so clear. Whilst there are arguments that use of such drugs are still considered a violation of privacy and dignity, it is also argued as being significantly less harmful than the above methods of torture.30 However, when discussing truth serums, firstly it must be established that there is no evidence to suggest such thing as a drug that compels the person administered with to tell the truth; rather it makes the subject more talkative.31 Instead it becomes a question of whether or not administering such a drug constitutes an appropriate measure in combating terrorism.
Since administering a drug intended to elicit information from a suspect after that suspect has previously refused to tell an arresting authority can be seen as forcing a confession from him or her, the evidence submitted is essentially done so under duress and is thus inadmissible in court. However this does not mean that innocent lives cannot be saved or perhaps even enough evidence can be gathered from the given intelligence to indict the suspect and his or her accomplices. Perhaps the core issue surrounds the fact that particularly with Sodium Pentothal, the suspect would maintain awareness throughout the interrogation, though with no ability to censor their responses. This 'waking nightmare' could mean potential for mental pain or suffering as defined in the CAT Article 1 if classified as severe.32 If this is the case, then perhaps the administration or threat of administration of drugs in interrogation, being classified as torture, is therefore not appropriate. Here the key issues as identified in the CAT revolve around the intent and threat to use a truth serum, as these can constitute torture yet coining the actual usage of such a serum torture is dependant on the mental harm caused. Either way, the implications of the usage of such methods that are intended to subject a suspect to relinquish information without being willing can be considered generally inappropriate. However, in saying this, if governments were to possess such a drug that would allow interrogation to proceed without any effects on the mental state, and was done so without threatening or intent to cause severe pain or suffering, then herein lies perhaps the only loophole which could be considered as appropriate in combating terrorism. This method should only be condoned in the elusive ticking bomb scenario, whereby innocent life is undoubtedly at risk, but perhaps this approach is overly idealistic in wishing to have the best of both worlds. Regardless, any usage of methods that do not conform to the CAT Article 1 should not be condoned in any situation, as the longer term repercussions should be considered. More importantly, the usage of any other methods of interrogation considered brutal than in fact it is more conducive to the spread of terrorism and in fact not effective in combating terrorism.
Slippery Slopes
The inherent problem in any attempt to legalise torture is that is ultimately begs the question of where the line gets drawn. What is deemed appropriate now, will not necessarily be appropriate in ten years time. Although it has been suggested that officials balance the costs and benefits of coercive interrogation in each particular example, inevitably they will underestimate the costs and overestimate the benefits.33 This approach obviously is an attempt to ensure that on the balance of probability, overwhelmingly human rights are respected and protected to ensure that both short term and long term gains are available, but the argument persists that once torture is legalised we won't be able to stop. Why should it only exist in matters of state? Torture could be used in criminal cases to extract information from witnesses who an official might believe holds relevant information, or even further down the slope, torture as a political tool in intimidation tactics. Simply allowing officials to make a cost benefit analysis of each particular case could see the use of coercive interrogation become more and more frequent. As Kara Martinez illustrates with reference to Brazil in the early 1980's;
'When violence is institutionalised and normalised, concepts of morality become increasingly distorted, as units within the repressive regime begin to compete for deadly goals: higher arrest rates; uncovering critical intelligence; quick extraction of confessions; and total annihilation of the enemy.'34
Whilst this is ultimately the end and extreme result, the proliferation of coercive interrogation can lead to widespread removal of human rights in the name of protecting the state, not necessarily just protecting innocent life. By implementing torture as a method to combat terrorism, we are potentially leading ourselves down a path whereby the end result is exactly the opposite of what we are trying to protect. By this notion of a slippery slope, torture is never going to be appropriate in combating terrorism, as the benefits to our society are far outweighed by the potential pitfalls. This is always countered by comments suggesting that the harm prevented must simply be greater than the harm inflicted, but again this argument is overly simplistic; as it never takes into account the implications surrounding each situation - that is the costs are underestimated. The perfect example of this is once again the French in Algeria, as shown by Neil MacMaster:
'Torture, widely referred to as "la gangrene", was seen as a form of cancer that inexorably led to the degeneration of the liberal democratic state, its institutions (particularly the army and the judiciary), its core values and fundamental respect for human rights and dignity.'35
Again, the overwhelming outcry over the use of such tactics by French officials can show just where the end result can be. It is better to retain our values and dignity than to use coercive interrogation to gather intelligence that has regularly been seen as being unreliable.
It is highly important to note that although the slippery slope argument is one of the most common and reoccurring arguments in the debate over the appropriate use of torture, there really is no concrete evidence to suggest that this will result. Whilst the prospect of what might happen can often be enough to deter some from approving the use of coercive interrogation, in reality there are situations that exist whereby the situation does not get out of control. There exists in society several practises that inflict pain on one to save another. Some of these suggested responses to this put forward by Bagaric and Clarke are overly simplistic, such as comparing kidney and bone marrow transplants where one person has excruciating pain inflicted upon them to save another.36 This is a poor example, as quite obviously the difference between transplants and torture lies in the simple notion of willingness of a donor to undergo the painful surgery. They simply cannot be compared, as the willingness of a subject obviously rules out any notion of brutality. However the example of capital punishment does hold ground with countering the slippery slope argument, as clearly the legalising of capital punishment has not spread to a point whereby all human rights are lost and society crumbles as a result, in fact the opposite can be seen where many nations now oppose the use of capital punishment and seek to outlaw it. However, the most pertinent issue raised in opposition to the slippery slope argument is the fact surrounding the current use of torture. Amnesty International has documented reports of torture from 132 countries, including developed nations such as the United States, Canada and France.37 Since torture is already widespread, there is merit to the argument that legalising it would not necessarily increase its occurrence.
Conclusion
There are several sides to the debate surrounding the appropriate use of torture in combating terrorism, however one must look at the different issues within one context - terrorism is not necessarily a fixed thing that can be subjected to defeat by conventional or physical means. Terrorism is an idea, or gathering of ideas, that through ideology is intending to destroy a system to which it is opposed. Therefore we must question whether the use of torture on those suspected of involvement with terrorist movements will be effective in combating and ultimately defeating terrorism. Whilst there are merits to arguments that suggest that torture may be used to defeat incidents of terrorism (provided the situation is right), there are larger issues at play when torture is deemed appropriate. We cannot look at torture through the prism of individual situations, as the indoctrination of freedom from torture in the Convention Against Torture and the International Convention on Civil and Political Rights is intended to afford protection to all individuals under the law, not merely those the authorities wish to protect. Moreover, the importance of the intelligence gathered from such methods is not guaranteed, but there are stronger assurances that deeming torture appropriate will in fact remove the hard work as an international community we have done in protecting all from cruel and barbaric treatment. Thus it is the long term aims of combating terrorism that we must view the appropriate use of torture through, as it is through these lenses that we can ultimately come to a conclusion that allows us to maintain our dignity. If there were stronger guarantees that the intelligence gathered in interrogations was viable and accurate, or there are methods that are able to ensure such without diminishing core human rights, then there is a different debate to be had. Until then torture should never be considered appropriate as a method to combat terrorism, and we should work to ensure such compliance with our governments across the globe.
Bibliography
Articles/Books/Reports
Amnesty International, Torture Worldwide: An Affront to Human Dignity, (2000), New York: Amnesty International Publications
Bagaric, Mirko, and Clarke, Julie, 'Not Enough Official Torture in the World? The Circumstances in Which Torture Is Morally Justifiable', (2005) 39 University of San Francisco Law Review 581.
Bagaric, Mirko, and Clarke, Julie, 'Tortured Responses (A Reply to Our Critics): Physically Persuading Suspects Is Morally Preferable to Allowing the Innocent to Be Murdered' (2006) 40 University of San Francisco Law Review 703.
Barry, John T., and White, Welsh S., 'Interrogating Suspected Terrorists: Should Torture Be an Option?' (2002) 63 University of Pittsburgh Law Review, 743.
Keller, Linda M., 'Is Truth Serum Torture?' (2005) 20 American University Law Review 521.
MacMaster, Neil, 'From Algiers to Abu Ghraib' (2004) 46 Race & Class 1.
Maran, Rita, Torture: The Role of Ideology in the French-Algerian War, (1989) New York.
Martinez, Kara, 'Structures of Violence: The Proliferation of Atrocity Environments Under the Brazilian Military Government and the Bush Administration' (2005) 5 Human Right. & Human Welfare 293.
Posner, Eric A., and Vermeule, Adrian, 'Should Coercive Interrogation Be Legal?' (2006) 104 Michigan Law Review 67.
Shue, Henry, 'Torture in Dreamland: Disposing of the Ticking Bomb', (2006) 37 Case Western Reserve Journal of International Law 231.
Legislation
ASIO Legislation Amendment (Terrorism) Act 2003 (Cth) sub-s 34JB amending Australian Security Intelligence Organization Act1979 (Cth).
Treaties
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 Dec. 1984, 1465 U.N.T.S. 85
Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War opened for signature 12 August 1949, 75 UNTS 50, art 28 (entry into force 21 October 1950)
Other Sources
ABC Television, 'Torture', 4 Corners, 5 June 2007 http://www.abc.net.au/4corners/content/2007/s1941988.htm, at 7 June 2007.
'Police Shot Brazilian eight times' BBC News Online, Monday 25 July 2005, http://news.bbc.co.uk/1/hi/uk/4713753.stm, at 22 June 2007.
BBC Two Television, 'The truth about torture', We Have Ways of Making You Talk, 5 April 2005 http://news.bbc.co.uk/1/hi/magazine/4412065.stm, at 18 June 2007.
Esposito, Rich, Sauer, Maddy, and Walter, Vic, 'History of An Interrogation Technique: Water Boarding', ABC News America, 29 November 2005, http://abcnews.go.com/WNT/Investigation/story?id=1356870, at 19 June 2007.
Hajjar, Lisa, 'Our Heart of Darkness', Amnesty USA, Summer 2004, http://www.amnestyusa.org/amnestynow/darkness.html, at 19 June 2007.
Martelle, Scott, 'The Truth About Truth Serum: It may make for loose lips but not necessarily elicit honest answers' LA Times, (Los Angeles) 5 November 2001.
MSNBC TV, 'Is Torture an effective anti-terror tactic?', MSNBC Live, 7 November 2005, http://www.msnbc.msn.com/id/9958544/, at 20 June 2007.
McCoy, Alfred, The Hidden History of CIA Torture: America's Road to Abu Ghraib, http://www.globalresearch.ca/articles/MCC409A.html, at 15 June 2007.
PBS Television, 'Debating Torture' Newshour with Jim Lehrer, 2 December 2005, http://www.pbs.org/newshour/bb/military/july-dec05/torture_12-02.html, at 20 June 2007.
Priest, Dana and Smith, R. Jeffrey, 'Memo Offered Justification for Use of Torture', Washington Post, (Washington DC), 8 June 2004, http://www.washingtonpost.com/wp-dyn/articles/A23373-2004Jun7.html, at 19 June 2007.
Protection of human rights and fundamental freedoms while countering terrorism, OHCHR Res 2005/80, UN OHCHR 60th Meeting (2005).
Resolution: The United Nations Global Counter-Terrorism Strategy, GA Res 60/288, UNGA 60th Session, UN Doc A/RES/60/288, (2006).
US Department of State, 'Bush Calls Freedom From Torture "Inalienable Human Right"' (Press Release, 26 June 2005), http://usinfo.state.gov/dhr/Archive/2005/Jun/27-499670.html, at 18 June 2007.
Alfred McCoy, The Hidden History of CIA Torture: America's Road to Abu Ghraib, http://www.globalresearch.ca/articles/MCC409A.html, at 15 June 2007.
2 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 Dec. 1984, 1465 U.N.T.S. 85
3 Henry Shue, 'Torture in Dreamland: Disposing of the Ticking Bomb', (2006) 37 Case Western Reserve Journal of International Law 231, 231.
4 Dana Priest and R. Jeffrey Smith, 'Memo Offered Justification for Use of Torture', Washington Post, (Washington DC), 8 June 2004, http://www.washingtonpost.com/wp-dyn/articles/A23373-2004Jun7.html, at 19 June 2007.
5 Mirko Bagaric and Julie Clarke, 'Tortured Responses (A Reply to Our Critics): Physically Persuading Suspects Is Morally Preferable to Allowing the Innocent to Be Murdered' (2006) 40 University of San Francisco Law Review 703, 707.
6 ABC Television, 'Torture', 4 Corners, 5 June 2007 http://www.abc.net.au/4corners/content/2007/s1941988.htm, at 7 June 2007.
7 Ibid.
8 See Henry Shue, above n 3.
9 Mirko Bagaric and Julie Clarke, 'Not Enough Official Torture in the World? The Circumstances in Which Torture Is Morally Justifiable', (2005) 39 University of San Francisco Law Review 581, 584.
0 ABC Television, 'Torture', above n 6.
1 US Department of State, 'Bush Calls Freedom From Torture "Inalienable Human Right"' (Press Release, 26 June 2005), http://usinfo.state.gov/dhr/Archive/2005/Jun/27-499670.html, at 18 June 2007.
2 Protection of human rights and fundamental freedoms while countering terrorism, OHCHR Res 2005/80, UN OHCHR 60th Meeting (2005).
3 Ibid.
4Resolution: The United Nations Global Counter-Terrorism Strategy, GA Res 60/288, UNGA 60th Session, UN Doc A/RES/60/288, (2006).
5 BBC Two Television, 'The truth about torture', We Have Ways of Making You Talk, 5 April 2005 http://news.bbc.co.uk/1/hi/magazine/4412065.stm, at 18 June 2007.
6 MSNBC TV, 'Is Torture an effective anti-terror tactic?', MSNBC Live, 7 November 2005, http://www.msnbc.msn.com/id/9958544/, at 20 June 2007.
7 ABC Television, 'Torture', above n 6.
8 PBS Television, 'Debating Torture' Newshour with Jim Lehrer, 2 December 2005, http://www.pbs.org/newshour/bb/military/july-dec05/torture_12-02.html, at 20 June 2007.
9 Ibid.
20 See Rita Maran, Torture: The Role of Ideology in the French-Algerian War, (1989) New York.
21 ASIO Legislation Amendment (Terrorism) Act 2003 (Cth) sub-s 34JB amending Australian Security Intelligence Organization Act1979 (Cth).
22 Ibid. sub-s 34J.
23 'Police Shot Brazilian eight times' BBC News Online, Monday 25 July 2005, http://news.bbc.co.uk/1/hi/uk/4713753.stm, at 22 June 2007.
24 Ibid.
25 Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War opened for signature 12 August 1949, 75 UNTS 50, art 28 (entry into force 21 October 1950) (Geneva Convention)
26 Geneva Convention, opened for signature 12 August 1949, 75 UNTS 50, art 31 (entry into force 21 October 1950)
27 Geneva Convention, opened for signature 12 August 1949, 75 UNTS 50, art 32 (entry into force 21 October 1950)
28 Maddy Sauer, Vic Walter and Rich Esposito, 'History of An Interrogation Technique: Water Boarding', ABC News America, 29 November 2005, http://abcnews.go.com/WNT/Investigation/story?id=1356870, at 19 June 2007.
29 Lisa Hajjar, 'Our Heart of Darkness', Amnesty USA, Summer 2004, http://www.amnestyusa.org/amnestynow/darkness.html, at 19 June 2007.
30 John T. Barry and Welsh S. White, 'Interrogating Suspected Terrorists: Should Torture Be an Option?' (2002) 63 University of Pittsburgh Law Review, 743, 768.
31 Scott Martelle, 'The Truth About Truth Serum: It may make for loose lips but not necessarily elicit honest answers' LA Times, (Los Angeles) 5 November 2001.
32 Linda M. Keller, 'Is Truth Serum Torture?' (2005) 20 American University Law Review 521, 570.
33 Eric A Posner and Adrian Vermeule, 'Should Coercive Interrogation Be Legal?' (2006) 104 Michigan Law Review 671, 677.
34 Kara Martinez, 'Structures of Violence: The Proliferation of Atrocity Environments Under the Brazilian Military Government and the Bush Administration' (2005) 5 Human Right. & Human Welfare 293, 298
35 Neil MacMaster, 'From Algiers to Abu Ghraib' (2004) 46 Race & Class 1, 2
36 Bagaric and Clarke, above n 5.
37 Amnesty International, Torture Worldwide: An Affront to Human Dignity, (2000), New York: Amnesty International Publications
Morgan Squires 18131980
