Can State Torture Be Justified? Theories, Practicalities and Tortured Logic.

6142150421_b799323b53_oThe use of state torture used to remain incompatible with contemporary Western values, however, the event on September 11th 2001 and the subsequent initiation of the War on Terror began to mystify the boundaries of morality and acceptable state behaviours (Luban, 2010). Whilst universally condemned in international law, justifications for the usage of state torture have cropped up which argue that such behaviour is morally permissible (Luban, 2010). Such arguments normally refer to the consequentialist argument of the “ticking bomb scenario”, whilst those who refute this justification tend to side with a deontological perspective (Kramer, 2014). This essay will argue for the unreserved refutation of any justification for state torture, asserting that there resides a series of fallacies in the ticking bomb scenario which invalidates the argument (Bufacchi and Arrigo, 2009). Siding with deontological reasoning, it will be argued that violating human rights as a means to an end is morally wrong. After outlining what is being referred to by the term “state torture”, this essay will outline the deontological perspective and attempt to refute the ticking bomb argument; these theoretical arguments have a tendency of deriving from a philosophical standpoint, and thus branches of the discipline of philosophy must and will be discussed. Succeeding this, an assortment of the practical arguments will be outlined and discussed. Subsequently, an analysis of the arguments will take place and a justification of this essay’s stance will transpire.

What is State Torture?

If the theoretical and practical arguments surrounding state torture are to be discussed, it would prudent to highlight the definition of the term which will be the subject of this analysis. However, there are a variety of issues trying to define such a term; this is because it remains impossible to define anything which is real, real phenomenon can only be described (Brecher, 2007: 3). In this sense, actions can change in definition without actually changing physically (Brecher, 2007: 3). For example, commonly referred to as coercive interrogation techniques, the United States has institutionalised and approved a number of techniques for usage, in Abu Ghraib and Guantanamo Bay for example, that violate various human rights treatments and amounts to torture under several different definitions (Human Rights Watch, 2004: 10). Some of these techniques include stripping detainees, preventing detainees from sleeping as well as subjecting them to stress positions; they also have been known to use “water boarding” as a technique, strapping down detainees and letting them believe that they might drown (Human Rights Watch, 2004: 10). Such techniques have often been defended as “professional interrogation techniques” which do not amount to torture by certain legal definitions as they fall just short of torture (Brecher, 2007: 3). Historically, the White House has argued that the United States does not engage in any form of state torture, redefining definitions of “prisoners” into “detainee” to elude the legal definition of “torture” (Mestrovic, 2015: 71). This highlights a range of the issues in defining a term such as “state torture”.

Accordingly, a description of the phenomenon of state torture will be given which covers the specific behaviours mentioned in the previous paragraph as a definition cannot theoretically be provided (Brecher, 2007: 3). This description refers to torture as any act which intentionally imposes any form of serious physical or mental pain or suffering for the purpose of obtaining information or a confession, or for punishing a person for an act he or she has or is suspected of having committed, or for such purposes of intimidation and dehumanisation (Brecher, 2007: 5). This description includes a range of behaviours which adequately describes torture. The form of torture to be discussed in this essay is “state torture”, with a specific focus on interrogational torture, which refers to the behaviours described which occur at the hands of state officials.

Theoretical Arguments

Employing the lexicon of philosophical reasoning, deontologists suggests there are two sides to the debate on state torture: “absolutists”, who support the notion that state torture is never morally permissible, and the “consequentialists”, who argue that in some scenarios the use of torture may be justified in distinct circumstances when the anticipated benefits outweigh the costs (Solis, 2016: 649). Consequentialists tend to speak of torture in certain cases as being “morally commendable” and as “a means for fulfilling one’s duty”; such cases tend to resonate with scenarios, such as the ticking-bomb scenario, which appear to necessitate the usage of torture as a means to a utilitarian ends (Solis, 2016: 649). The arguments to be outline represent the contradiction between moral dilemmas which arise between rights and consequences, and more broadly, between absolutism and consequentialism (Cohan, 2007).

 

The primary argument to unconditionally refute the justifications for torture resides in the philosophical domain on deontology. Concerned with moral duty and obligation, deontologists refutes the usage of torture under all circumstances due to how it violates victim’s rights (Buha, 2010: 306). This perspective rejects the basis of consequentialism as actions should not be weighed by their consequences, but by the morality of the act in itself (Ginbar, 2008: 10). Incompatibly with this perspective, torture involves the barbaric and inhumane treatment of individuals which is inherently degrading and cruel, consequently they argue that torture is morally impermissible (Sussman, 2005: 13). This behaviour involves the permanent fracturing of an individual’s psychology, subjecting them to profound mental damage which leaves lasting effects on those who are subject to this treatment (Sussman, 2005: 13). Deontologists argue that if there is any value to our “human rights” laws then an individual should not be subjected to torture, even in extreme circumstances (Cohan, 2007). Under deontological logic, if an action violates an individual’s rights it should be strictly forbidden, regardless of consequentialist arguments (Buha, 2010: 321). The absolute prohibition, exemplified throughout deontological moral theory emphasises humanity and dignity on behalf of the torture victim, and is a stance adopted by Amnesty International (Amnesty International, 1973). This position tends to assume a rigid, abstract, moral principle which should not be violated under any circumstances (Solis, 2016). Any attempt to violate these rights and subject individuals to deliberate pain as a means to an end is unacceptable.

 

The ticking-bomb scenario represents the most well-known argument which is used to warrant national policy on state torture (Spino and Cummins, 2014: 543). Deriving from a philosophical standpoint, the ticking-bomb scenario is used to justify state torture through an appeal to the notion that its employment is for the greater good, a stance typically taken by utilitarianism, a form of consequentialism (Brecher, 2007: 9). The typical scenario which this justification describes suggests that a terrorist has planted a bomb that will detonate in a location which will kill or injure hundreds or thousands of people; in this situation, all other methods of investigation which might have prevented the bomb from going off have failed and the state have custody of the terrorist (Spino and Cummins, 2014: 543). The only option which remains which might reveal vital information to prevent the terror attack is to torture the terrorist for the information (Spino and Cummins, 2014: 543). In this situation, the ticking-bomb argument suggests that is it justifiable to torture the terrorist if it has the potential to gain intelligence which may prevent the loss of hundreds or thousands of lives (Spino and Cummins, 2014: 544). This argument appeals to a consequentialist stance which determines whether an action is permissible by the consequences of the action or inaction to take place (Solis, 2016).

Dershowitz’s elaboration of this scenario represents the most sophisticated justification for the legalisation of state torture (Brecher, 2007: 14). Reminding us of the philosophical predicament where the lesser of two evils must be chosen, Derschowitz argues that an individual is likely to choose a course of action which minimalises suffering in a particular situation (Brecher, 2007: 14). In a situation which resembles variants of the ticking bomb scenario, Derschowitz advocates the action which results in the least amount of harm occurring (Addicott, 2004); in these situations, utilising state torture may be the action which reduces the most amount of harm from occurring and is thus just (Brecher, 2007: 14). Whilst critics may argue that in these situations torture does not always work, Derschowitz subsequently argues that it is impossible to avoid making a morally controversial decision through the denial that empirical evidence shows that sometimes torture works (Derschowitz, 2002: 137). He argues that there are a number of instances where torture has produced truthful information which has consequently prevented harm to civilians (Derschowitz, 2002). Referring to a case in 1995 in the Philippines, he refers to the utilisation of torture as a means to successfully withdraw information from a terrorist which subsequently foiled plots to assassinate the pope and crash eleven commercial airliners (Derschowitz, 2002: 137). Deriving from consequentialist logic, Derschowitz maintains that it is important to acknowledge that, despite its controversial stigma, torture does in fact work sometimes and can in fact prevent the loss of innocent lives (Lamb, 2013). In these situations, he argues that state officials ought to torture if they believe that it could avert great harm, as the consequences of torturing outweigh the consequences of choosing not to torture (Lamb, 2013).

However, there are a variety of theoretical issues which reside in the ticking bomb scenario. Most pressingly, the argument follows a deductive line of reasoning which draws fallacious conclusions (Bufacchi and Arrigo, 2006: 360). This criticism is made based off of the controversial set of premises which the conclusions of the ticking-bomb scenario are based on, it is often cited that such premises are very unlikely to materialise (Bufacchi and Arrigo, 2006: 360). The ticking bomb scenario suggests that if a terrorist has been captured and holds vital information to preventing the detonation of a ticking bomb, that terrorist ought to be tortured as they will reveal the information necessary to disarm the bomb before time runs out (Bufacchi and Arrigo, 2006: 360). In reality, the chances of one terrorist being captured who possesses key information to prevent a terror plot is relatively improbable (McCoy, 2006: 192). Furthermore, the theory rests on the assumption that the capture of the terrorist occurs after the terror plot is realised, yet before the bomb’s detonation; in addition to this, it is assumed that the interrogators will somehow gain sufficient enough knowledge to actually prevent the terror attack from manifesting (McCoy, 2006: 192). From an empirical standpoint, it is contentious that the premises of the consequentialist reasoning will inevitably lead to the bomb being disarmed prior to its detonation in any real-world situation (Association for the Prevention of Torture, 2007: 5). The theory assumes an unlikely cluster of events and circumstances which will, almost never, transpire in real life (McCoy, 2006: 192).

A consequentialist fallacy also arises within the concept of the ticking-bomb scenario; ultimately the argument fails as a consequentialist justification because it fails to account for the wider social consequences of state-sponsored torture (Bufacchi and Arrigo, 2006). There is a variety of empirical evidence which highlights the systematic disadvantages of the institutionalisation and legalisation of torture (Skerker, 2010: 200). For instance, it has been noted that the legalisation of state torture will consequently reinforce its normalisation, which may result in this technique, state torture, being used increasingly as a means to an end (Kramer, 2014). This exponential utilisation of torture has been noted as an occurrence when it has been used once; for instance, U.S. Army interrogator Lagouranis spoke of how coercive interrogation techniques were used on two confirmed insurgents initially, yet within weeks interrogators were using these techniques on all detainees, many of who were innocent (Skerker, 2010: 201). The harm brought about through the legalisation of state torture, once taking these repercussions into account, is enough to make the social costs of legalising state torture higher than the supposed benefits; as the entirety of any consequentialist argument rests on this positive and negative analysis, ignoring a range of social consequences which require attention ultimately fails to provide a consequentialist justification (Bufacchi and Arrigo, 2006). As such, this fallacy suggests that the utilisation of such techniques ultimately contributes to social regression through their inhumane usage.

Outlining the fallacies and limitations of the ticking-bomb scenario, this essay consequently unveils how state torture is an unjust practice. The consequentialist “ticking-bomb” argument has the unconvincing effect of creating doubt about the absolute prohibition of torture (Association for the Prevention of Torture, 2007: 2). Operating through the manipulation of emotional reactions, argument creates a strong emotional image which allows the behaviour to be perceived as morally permissible as it is seen to be for the greater good (Association for the Prevention of Torture, 2007: 2). The stakes proposed by the ticking-bomb scenario represent an inflated sense of the benefits which arise from the torture of individuals which are unlikely to manifest in any reality (Association for the Prevention of Torture, 2007: 3). These fallacies create a coherent argument which can be used to reject the validity of the ticking bomb scenario.

 

Practical Arguments

One of the practical issues of how torture is used by the state relates to when they choose to interrogate a suspect for information which they are believed to hold. The US government admitted that over 90% of those they have subjected to interrogation techniques had no intelligence to give (Mestrovic, 2015: 70). Mestrovic builds on this logic using the analogy of a sports drink irrigating crops, arguing that sports drinks will not nurture crops, just as prisoners who have no intelligence to give will not disclose any true information, regardless of how much they are tortured or abused (Mestrovic, 2015). The statistic indicates that there is an inconceivable level of failure in the way these techniques have been exercised. Furthermore, there are no reliable means to identify whether a potential perpetrator has any relevant information to disclose (Association for the Prevention of Torture, 2007: 7). Consequently, if the empirical success of such techniques in practice remains so inadequate, is it not justified to ban the practice? The human and political costs of torturing the wrong person in these circumstances cannot be constructed to be necessary evils. Such evidence and questions more than rationalise the conclusion that state torture cannot be justified.

Research has identified that, practically, torture is an effective means for obtaining reliable information (Costanzo and Gerrity, 2009); this proves vastly more problematic when the information of torture is used to promote various causes. Historically, physical and psychological torture has led to the manufacturing of various confessions and information by victims of state torture (Otterman, 2007). These fabrications can be produced for numerous reasons, for example, they may be produced in an attempt to satisfy interrogators and to bring an end to the pain and suffering which these individuals are subject to (Otterman, 2007). An example of this lies in the build up to the Iraq War. During the build up to this war, the claim that “we’ve learned that Iraq has trained Al Qaeda members in bomb making and poisons and gases”, by the President of the U.S., was used to raise support for the Iraq War (Otterman, 2007). Whilst this claim was repeated within the media, the information came from the interrogation of al-Libi at a CIA black site, where he was subject to new coercive SERE techniques, to produce information (Otterman, 2007: 193). Whilst the Defense Intelligence Agency predicted that it was likely that al-Libi was deliberately misleading the CIA, it was not until after the invasion of Iraq that, when interrogators confronted al-Libi with new evidence, he subsequently recounted a different story to his original (Otterman, 2007). Consequently, it can be determined that torture is not a reliable means of extracting accurate information from potential suspects; explaining why it has been highly quoted that coercion is not compatible with the truth (McCoy, 2006). Furthermore, wars and causes have been supported as a consequence of faulty information, rendering the negative social repercussions of using state torture as distinctly high.

Another pertinent issue remains to be the regulation of such practices. In 2003, the world was exposed to the images of prisoner abuse which occurred at Abu Ghraib prison in Iraq, depicting the cruel, humiliating and dehumanising treatment imposed on detainees (Costanzo and Gerrity, 2009: 180). In some of these images, military personnel were grinning and posing with thumbs up signs, displaying signs of sadistic pleasure at the abuse taking place (Costanzo and Gerrity, 2009: 180). The seven individuals involved in this controversy were court-martialled from the crimes of “dereliction of duty”, “maltreatment” and “conspiracy” (Mestrovic, 2015: 70). Furthermore, in 2005 it was exposed that this abuse has been known to take place in more than one military prison and that the American government resorts to the practice of extraordinary rendition in a variety ghost detention centres in countries with poor human rights laws (Greenberg, 2006: 1). Where one finds the institutionalisation of these techniques, it has been noted that interrogators regularly breach the limitations of these approved techniques (Rejali, 2009: 11). Furthermore, this creates a slippery slope to the routinisation of these breaches, which results in a series of human rights violations (Rejali, 2009; 11). It remains clear from this that there are a variety of issues when it comes to regulating such practices which, if they cannot be addressed, renders state torture as an unjust practice.

 

In considering the practical implications of justifying state torture, there remains the pertinent problem of the legal definition (Amnesty International, 1973). Whilst torture is universally condemned in international law, it still remains a part of international conflicts (Costanzo and Gerrity, 2009). Despite claims from the White House that the United States does not engage in torture, there are a variety of black sites across the globe, such as Guantanamo Bay, which routinely engages in a variety of acts which under various definitions would be considered as torture (Mestrovic, 2015: 71). However, through a manipulation and reconstruction of the definition of torture; various lawyers have reconstructed the concept of “prisoner” into that of “detainee” and thereby argue that no torture has occurred here (Mestrovic, 2015: 71). This exhibits the limitations of state definitions and the law, as there remains a legal grey area on the continuum of what counts as torture, and it is within this grey area which modern states insist on operating within, evading the label of “torture” (Amnesty International, 1973).

Building on this argument, Derschowitz outlines that if the behaviour outlined by state torture remains to be so recalcitrant and that if torture is here to stay in society, is it not better to legalise and institutionalise such practices? (Brecher, 2007: 15). Dershowitz subsequently argues that such practices should be regulated by a judicial warrant in order to prevent abuses of power and maltreatment, such as those seen in Abu Ghraib prison (Luban, 2010: 1426). This practical argument renders questions such as the one this essay seeks to answer as somewhat redundant; regardless of the perceived immorality of torture and its illegalisation, the behaviour still occurs (Costanzo and Gerrity, 2009). In response, this essay advocates that whilst these behaviours may remain in society, this does not mean we should treat them as if they were morally permissible.

Personal Stance:

Considering the literature addressed in this essay, I personally align with deontological reasoning to support a moral absolutist perspective on torture at the hands of anyone, including the state. Unconvinced by the ticking-bomb scenario, I believe attempts to justify state torture are emblematic of social regression as it involves violating human rights as a means to an ends. Whilst I can sympathise to some extent with consequentialist reasoning, I believe the profound effects of torture on the individual are drastically underrated as are the wider social consequences of legalising state torture. In response to Dershowitz’s assertion that if state torture is here to remain, should it not be legalised in order to be regulated (Brecher, 2007: 15), I claim that even if it is here to remain, that it should be not treated as if the behaviour were morally permissible and just.

 

Conclusion:

In conclusion, this essay has argued for the unconditional refutation of any attempt to justify torture at the hands of the state, constructing the practice as a moral and legal abomination (Waldron, 2012). A variety of concepts have been deployed to expose the fallacies of the ticking-bomb scenario and, in turn, argue for the absolutist rejection of torture on moral grounds. Furthermore, a variety of practical issues reside within the practice of torture techniques which only serves to add to the controversy of the argument for torture.  Consequently, there serves to be no convincing justification which releases a country from its moral and legal obligation to refrain from utilising torture (Costanzo and Gerrity, 2009: 181). Siding with deontological reasoning, an absolute moral prohibition on state torture must be recognised which sees such activities as a violation of human rights (Waldron, 2012).

 

 

 

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