Torture and the Ticking Bomb

Bob Brecher

• Publisher: Wiley-Blackwell
• Year: 2017
• ISBN:
  9781119431367
• Edition: 1
• Topic: Philosophy
• Subtopic: Ethics & Moral Philosophy

This timely and passionate book is the first to address itself to Harvard Law Professor Alan Dershowitz's controversial arguments for the limited use of interrogational torture and its legalisation.

• Argues that the respectability Dershowitz's arguments confer on the view that torture is a legitimate weapon in the war on terror needs urgently to be countered
• Takes on the advocates of torture on their own utilitarian grounds
• Timely and passionately written, in an accessible, jargon-free style
• Forms part of the provocative and timely Blackwell Public Philosophy series

Chapter One
Introduction

Suppose there is good reason to think that someone has planted a bomb in a public place. And suppose there is good reason to think that it is going to go off in the next two hours or so, and that it is going to kill and maim dozens of people, maybe hundreds. The question is all too real. Imagine, to bring the example closer to home, that the police or the secret services had known that bombs were shortly to go off some-where in Bali, Madrid, London or Sharm-el-Sheikh in the attacks of 2004 and 2005. But no one knows where the bomb is – except one person, who is already in custody. Naturally they have no intention of revealing where the bomb is. Maybe they have planted it themselves; maybe not. Either way, they remain silent. Should they be tortured to force them to reveal where the bomb is?

Or take an example of the ticking bomb scenario from an actual policy blueprint, hyperbolic though it is:

al-Qaeda has other sleeper cells within the United States that may be planning similar attacks [to 11 September 2001]. Indeed, al-Qaeda plans apparently include efforts to develop and deploy chemical, biological and nuclear weapons of mass destruction. Under these circumstances, a detainee may possess information that could enable the United States to prevent attacks that potentially could equal or surpass the September 11 attacks in their magnitude. Clearly, any harm that might occur during an interrogation would pale to insignificance compared to the harm avoided by preventing such an attack, which could take hundreds or thousands of lives. [1]

Until recently I would have argued that ‘Whatever one might have to say about torture, there appear to be moral reasons for not saying it’. [2] Even to raise the issue, I would probably have thought, is to give publicity to what is so abhorrent as to be beyond discussion. It remains a position I respect. Slavoj Žižek, for instance, insists that ‘essays … which do not advocate torture outright, [but] simply introduce it as a legitimate topic of debate, are even more dangerous than an explicit endorsement of torture’. [3] But in the end, present reality demands a direct response, despite that danger.

Two things in particular have changed my mind. First, the revelations from Abu Ghraib, Guantanamo Bay and elsewhere are a gruesome reminder that, at the beginning of the twenty-first century and official policy notwithstanding, torture remains a weapon in the armoury of “civilized” states. Jennifer Harbury’s exposé of longstanding American collusion in torture is testament enough to that. [4] The hypocrisy of official policy was underscored by growing evidence of the widespread practice of outsourcing the torture of prisoners to countries such as Egypt, Jordan, Morocco and Singapore. “Rendition”, as American newspeak has it, appears to have become standard practice – and one in which European states collude. [5] We have come a very long way in the twenty-five years since Henry Shue, a longstanding campaigner against torture, felt he had to justify raising the issue at all. Second, it has become clear that the United States government’s underwriting of torture since the attacks of 11 September 2001, as a means of conducting its so-called war on terror, has not come out of the blue. It has emerged against a background of academics, largely lawyers, seriously advocating that torture be legally permitted under certain circumstances. The Normalizing discourse provided by legal advocates of interrogational torture is an important source of legitimation for a policy of encouraging such torture, and of what follows in its wake: ‘the hypothetical has wedged us into the position of admitting that torture is sometimes a legitimate tactic’, as a recent writer comments. [6]

That was something new; and something very serious. Of course, torture had been ubiquitous in the second half of the twentieth century, from the Nazis Europe-wide to the French in Algeria, the British in Malaya, Kenya and Northern Ireland, the Americans in Vietnam, the Israelis in the Occupied Territories and dozens of regimes in their own countries. Nonetheless, until very recently there has been more or less unanimous agreement that torture was always wrong, whenever, wherever and for whatever reason it was carried out. Or at least, so it appears. For that agreement, admittedly widespread, was only a qualified agreement: it turns out that almost every writer since the early 1970s who discusses, and as a matter of course condemns, torture nonetheless thinks that it is justifiable in the extreme case, even if in no other (and whatever their view of the realism of such cases).

My initial anger remains, that we should have reached a point where it has become necessary to revisit what for 200 years was rightly taken for granted, namely that torture is quite simply wrong, always, every-where. But that anger requires that I take seriously what Dershowitz and others are saying. How else to refute the arguments than by questioning their often barely argued premises and exploring the likely consequences? As I started, I also found myself increasingly annoyed that – doubtless inadvertently – careless philosophizing about imaginary ticking bomb scenarios had given their argument a starting-point which should never have been conceded. For it is on the basis of unwarranted assumptions about such scenarios that academics are now explicitly advocating interrogational torture, its legalization, or both. To put it bluntly: when a couple of academics can seriously argue that ‘torture is “morally defensible” even if it causes the deaths of innocent people’, and seek American publication for their paper ‘because Americans were “more open to new ideas on human rights” ’, [7] then it is time to get one’s intellectual hands dirty. Richard Jackson is right: ‘There is no starker illustration of western society’s current moral vacuity than the serious public debate about torturing terrorist suspects – not to mention its all-too-common practice by America and its allies’. [8] Challenging that vacuity demands that we confront what feeds it.

What is Torture?

Should we try to define torture? No: we should not be looking for a definition. That is not because the idea of torture is in some way particularly recalcitrant. Rather, it is because it is impossible to define real things, such as tables, rivers, kindness or unhappiness, since, as part of the real world, they can change without becoming something else. For instance, you cannot define this particular book. You cannot specify exactly what makes it the book it is: it remains the book it is even if you tear out a couple of pages or add some notes. Real things, like this book, or like torture, can be only described; they cannot be specified exactly, that is to say, defined. It is only our own inventions, our ideas – or at least some of them – which can be defined, or specified exactly: a metre, a triangle, legal guilt, a metaphor. [9] Unlike with real things, if you take anything away from one of these, or add anything to it, it would be something different. It is in part the widespread assumption that torture needs to be unambiguously defined before we can say anything about it that enables American – and other – governments to get away with trying ‘to avoid admitting to apparent cases of torture by simply denying that they qualify as torture at all’: [10]

The White House Counsel said that President Bush ‘has given no order or directive that would immunize from prosecution anyone engaged in conduct that constitutes torture. All interrogation techniques actually authorized have been carefully vetted, are lawful, and do not constitute torture’. [11]

But would not a clear definition of torture help rule it out? Again, no. Trying to define torture is not only mistaken, it is counter-productive. Consider the infamous Bybee memorandum, for example, which allows those who advocate the use of torture under other names to manipulate definitions so as to pretend to themselves, and to persuade others, that torture is not torture. Thus Bybee would have it that inflicting severe pain does not amount to torture unless it attains a ‘level that would ordinarily be associated with a sufficiently serious physical condition or injury such as death, organ failure, or serious impairment of body functions’; [12] while ‘Porter Goss, the CIA director, defended waterboarding [repeated near-drowning] in March 2005 testimony before the Senate as a “professional interrogation technique” ’. [13] By definition, then, anything just short of that is not torture – and thus not ruled out, whether legally or morally. Thus, while torture by the American occupying forces in Iraq is rife, those responsible are able to hide behind the fact that ‘harsh interrogation’ [14] appears definitionally not to be torture. And it is all too easy to think that ‘harsh interrogation’ is not torture because, as with white noise or drugs some decades ago, it does not fall within a particular definition of torture.

The United Nations’ own Convention Against Torture (1984) is problematic in just this way. It defines torture as the intentional infliction of ‘severe pain or suffering, whether physical or mental … by or at the instigation or with the consent or acquiescence of a public official or other person acting in an official capacity’, and explicitly excludes any ‘pain or suffering arising only from, inherent in or incidental to lawful sanction’. [15] Under this definition, if interrogational torture were made legal – if torture warrants were made a lawful sanction in certain cases of withholding information – then it would no longer count as torture, since it was ‘inherent in … lawful sanction’! [16]

Torture cannot and need not be defined. It is not that “I know it when I see it” (although I might); but that, just as in debates about pornography and abortion, there are bound to be borderline cases, and these borderlines are bound to change over time, as new technology is developed. The point is that there are cases which indubitably count, even if there are others which remain unclear or undecidable. Images of young children being sodomized by an adult or an animal, for example, obviously constitute pornography. A newborn child is clearly not a foetus, even if the borderline between foetus and child remains controversial. It is attention to actual practice that removes the temptation to define: an Abu Ghraib guard accused of torture could not sincerely claim that ‘I am shocked – shocked! – to find that “waterboarding” or squeezing prisoners’ genitals or setting dogs on them is regarded as torture’. [17] What I propose, therefore, is a description of torture, taken from Christopher Tindale (though he himself regards it as a definition) and based on the United Nations General Assembly’s Convention Against Torture (1984):

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from that person or a third person information or confession, punishing that person for an act committed or suspected to have been committed, or intimidating or dehumanizing that person or other persons. [18]

That seems to me adequately to describe torture. Any act like that is sufficient to count as torture. By contrast, what is necessary for an act to count as torture is liable to change. Once invented, waterboarding is always enough to constitute an act of torture. New methods, however, are also always liable to be invented, so that what is needed for an act to constitute torture cannot be specified in advance.

Dershowitz on Interrogational Torture

Let me now focus on the proposal to legalize interrogational torture. Its leading advocate is Alan Dershowitz, a civil rights lawyer of some thirty years’ standing. Initially presented in various American newspapers and on a number of websites, and then brought together in chapter 4 of Why Terrorism Works, [19] his arguments are the most prominent. Certainly, his advocacy of the legal institutionalization of torture in cases ‘When torture is the least evil of terrible options’ [20] is the most notorious and most comprehensive elaboration of what is often cal...