Law-makers breaking the law: torture as a justified interrogation technique? (0)

Law-makers breaking the law: torture as a justified interrogation technique?
Introduction
It was Jeremy Bentham who thought of a famous method to give ethics a rational basis . He was fed up with the penal laws where offenders met corporate punishment and together with Cesario Beccaria he stood up to torture, corporal punishment, and the death penalty. He resisted against irrational moral emotions as the instigation for ethical conduct, saying only reasonable grounds could justify the moral decisions of individuals and legislators. And now his theory of is the one that is known for justifying torture (Verplaetse, 2008).
Since 9/11 and the following fight against terrorism it became clear that the Bush administration thought of torture as something justifiable while it goes against all possible agreed upon treaties and conventions. One could indeed possibly think of situations that could serve as an exception to the prohibition of torture but these hypothetical situations can hardly relate to real situations.
The ticking bomb argument looks at the hypothetical case where a leader of a state is asked to give their permission to torture a captured rebel leader because he (probably) knows the locations of a few explosives that are spread around the city in different apartment buildings. In case they are not found within 24 hours , they will explode and many will be left dead (Walzer, 1973). Is it justified to torture this person to find out where the bomb is?
This essay will look in to how it has according to the thinkers in the strand of consequentialism / utilitarianism been labelled justifiable to use torture techniques in combating terrorism and will present the reasons for why this controversial behaviour that democratic governments have been proven to conduct and still are being accused of until the current day is irrational and dangerous .
Theoretical justification of torture
The utilitarian view that a political leader should allow torture to rescue civilians’ lives is justified by that this would result in maximum happiness for the greatest number of people. It is said that in case of a moral dilemma there is never the possibility of complete justification. Torture is illegal but if human lives can be saved, it is worth it. This disregards the act itself and only looks at the result ( Driver , 2014).
Hedonism supposes that a decision is ethically correct if the consequence brings maximal satisfaction to the individual . Eudemonism replaces the word satisfaction by happiness. The difference between the two words is that satisfaction usually is short- term and focuses more on the senses. Happiness is something long-term and is more ' part ' of a person than an experience its senses undergo. Utilitarianism believes a certain action should result in maximum happiness for the biggest group of people. The government should always think of the interests of the population. Eudemonism and hedonism are however more focused on the individual. Here , classical utilitarianism1 justifications will be discussed ( Ibid .).
Classic utilitarianism departs from the idea that there are two intrinsic values , pain and happiness. Jeremy Bentham believed that happiness includes wellbeing and absence of pain. It was him who defined that utility holds that the good is what produces most happiness for the most amount of people. "The greatest happiness of the greatest number" was called the "Greatest happiness principle" and was according to him the base for moral and legislation . What was not considered was that people would experience happiness differently as personalities on their own. He did not diversify in levels of happiness.
Bentham developed an algorithm to calculate the amount of happiness a certain action would result in yet said that there is no way that torture can be approved without going against reason and humanity, nor can it be condemned without falling into absurdities and contradictions.
It is not easy to argue about torture as most people find it self-explanatory to condemn it. Bentham was correct in that not all forms of torture can be lumped together without considering the aim of the torture (Twinning, 1973). Even when absolutely condemning the act of torture, it is still important to do this for the right reasons. There are enough legal and ethical grounds to do so. The most evident grounded reason is probably the fact that it harms the dignity of a human being. However, this argument convinces some more than others .
The consequential idea that a small evil is allowed to avoid a bigger evil doesn't uphold any valid norms or values but emphasizes the justness of the outcome . This gives room to place truth and morality aside, because the goal is set and the means to obtain it serve the purpose of the goal. A great flaw that arises here though is what is called the association fallacy. What can happen according to such reasoning is that an incorrect understanding of a situation causes for a certain new behaviour, which makes the original incorrect understanding true. The believer of the original understanding will present the series of events to prove that they were right from the beginning . In the case of torture and the saving of innocent lives, this would mean that the wrong understanding that torture rescues lives leads to the event of torture, because of which lives were saved and thus the original erroneous understanding becomes true. This so to say then proves that torture indeed does save lives. This leads to a self-fulfilling prophecy, prone to become institutionalized on its own (Driver, 2014).
Torture almost always goes paired with the idea that it serves a higher purpose. Foucault elaborates on this, describing the confirmation of absolute sovereign power obtained by torturing criminals in France in the late 18th century . People in power meant to scare the population by showing their ruthlessness, thinking that if the population is afraid, they will be obedient too. By witnessing torture of criminals, also to a certain level agreement was supposed . The fact that such methods are no more, is mostly due to the lack of public discontent. Even if they were criminals, public corporal punishment was found too inhumane (Foucault, 1977).
Torture can be a means of punishment on its own, however, the public character of it however serves an additional purpose. The aim of punishment according to utilitarianism as such is prevention . The punishment thus focuses on the future. In this, Bentham diversifies between general and individual prevention. General prevention is sought by announcing the punishment and by implementing it. In other words, as mentioned before , the implementation of the punishment always has to serve as a purpose. The punishment therefore has a deterring effect . This will demonstrate the power of the punisher. The power position needn't only be confirmed towards the subject but also to the potential subjects as well. It applies to the entire population.
Considering that the utilitarian purpose of punishment is to avoid future crimes, it means that it is not done out of hate towards the person itself. When looking at media imagery from prisons as Guantanamo Bay for example, it can be seen that the purpose of torture there is not simply to avoid future crimes, which takes away all justification, imagining it was there in the first place.
Individual prevention can come to stand in 3 different ways; firstly by neutralizing the wrongdoer. This means that it will be made impossible for that person to commit any more crimes. Secondly, that person can be resocialized. In this way, the desire to commit crimes is taken away by moral reformation . Thirdly, the culprit can be deterred, where it is possible that the desire to commit crimes still exists but the fear of doing so would be too great because the possibility by a certain punishment is too intimidating (Twinning, 1973).
The punishment has to be accompanied by as much disadvantage as advantage. It also has to correspond to the preventive considerations. The severity of the punishment must be proportional to the damage the crime caused (Ibid.).
Alan Dershowitz' (2002) vision states that the simple cost -efficiency analysis for resorting to illegal torture seems overbalanced: it is certainly better to inflict illegal pain to one guilty terrorist who is illegally holding back important information that could help us avoid a terrorist act than to allow a big amount of innocent people to die. Pain is a lesser and repairable damage than death; and the lives of a thousand innocent people have to be valued higher than the integrity of the body of one guilty person.
Public humiliation of an opponent often leads to controversy though as the person humiliated will desire to restore his honour and the most direct way to this is taking revenge on the person who humiliated him. The more public the humiliation was, the stronger the need for restoration of their pride shall be. If someone is humiliated because of their belonging to a certain group, then in many cases the pride of the entire group is hurt . The effect of humiliation is extra strong when it is inflicted by means that are damaging to the identity of the group (Twinning, 1973).
Why torture is never justifiable
Retribution
The consequences of challenging a person suspected of being part of an organized and violent terrorist network can bring exactly the opposite of maximum happiness, or exactly the opposite of minimum pain and suffering. In the end of last year , Senate Intelligence Chairman Dianne Feinstein released the executive summary of the committee’s five-year review of the CIA’s detention and interrogation program . Also in this, the US Senate has recognized that “there are those who will seize upon the report and say “see what Americans did,” and they will try to use it to justify evil actions or to incite more violence“ (Feinstein, 2014).
Wasting valuable time
It is important to note that utilitarians only categorized things as either good or bad. If a consequence of an act brings maximum happiness to the greatest number of people, it is good, which however doesn't mean the act automatically should be considered as inherently good. The criterion for justification of an act according to utilitarianism said that an act is only good if there is no possible alternative that would have led to a bigger sum of wellbeing in the world (Driver, 2014). What the presumption does not consider is that in case the person who is being tortured does not provide information that helps to save lives (due to innocence, inaccuracy, outside of the timeframe that existed for a crisis resolution, …), it simply becomes an act of punishment, which in turn is not justifiable. Not having tortured the person who could not provide any information would have left the world in a bigger sum of wellbeing in the first place.
Psychological deterioration
Michael Walzer (2007) stated that politicians sometimes have to (be able to) make decisions for which they will feel guilty of causing moral wrongdoing. That is part of their responsibility. Afterwards, the politician should not be unpunished either, but needs to pay a fine or undergo a punishment, one that he himself chooses. Political leaders have to, when necessary , be clever enough to know when they have to break the law. Because they believe in that law, they should also feel guilty for breaking it. This vision is based on the consequentialist reasoning that the honouring of individual rights in such emergency situations are subjected to the saving of people's lives. In case of serious threat where the fundamental values of a society are at stake and slavery or mass murder threaten it, all means are morally justified to save society of this.
He does however not consider the effects it has on the government staff who are put into positions as such. In the theory, this concerns a few members of staff seen as collateral damage for the sake of acting upon assumption. This however serves no purpose and rather voids their efforts, which makes the destabilization of their health in theory having occurred unjustly (which it would be in the first place as well, of course ).
Should a government then always act according to law or is it justified to in case of emergency set the laws aside? Is it possible to choose between two evils?
Unlawfulness
In a constitutional state there are rules the executive power needs to follow and that can sometimes make fighting terrorism inconvenient. Methods perceived as effective are not legitimate. Utilitarian thinkers believe this can be disregarded as to avoid a greater evil, authorities inevitably have to break the law. Michael Ignatieff (2004) states that governments needn't follow national and international law as precisely in case violating this law will avoid bigger crimes.
“Sticking too firmly to the rule of law simply allows terrorists too much leeway to exploit our freedoms. Abandoning the rule of law altogether betrays our most valued institutions . To defeat evil, we may have to traffic in evils: indefinite detention of subjects, coercive interrogations, targeted assassinations, even pre-emptive war. These are evils because each strays from national and International law and because they kill people or deprive them of freedom without due process . They can be justified only because they prevent greater evil.” (Ignatieff, 2004)
Terrorism pressures a democratic system greatly indeed. As under international law, torture is in any case prohibited though, there is no grounds for the application of this method whatsoever. As per the United Nations Universal Declaration of Human Rights, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. This does not leave any room for interpretation . Governments however face the issue that the normal way of doing things in law and order is a very long process, but terrorist threat asks for a quick decision. It should be possible to speed up the legislative power in times of crisis so important decisions can be made faster. A utilitarian intention is morally just. Negative utilitarians would state that by disobeying law when combating terrorism, the purpose was to minimize suffering for the greatest number.
Undermining of state credibility
One of the most important characteristics of a democracy however is the separation of powers. If the executive power takes matters into their own hands , this notion is cast aside. It exempts the legislative and judicial branch of power. It seems that the believers of utilitarianism do not consider the long term consequences of such utilitarian handling. It can undermine the legitimacy of the state if a democratic government doesn't abide by its own laws. Illegal actions can also damage the credibility and reputation of a government.
No solid ground for accusations
Ignatieff (2004) claims that a state sometimes has to resort to force, secrecy, and violation of laws, if this can avoid or counter terrorism. "To defeat evil, we may have to traffic in evils: indefinite detention of suspects, coercive interrogations, targeted assassinations, even pre-emptive war". He emphasizes that these crimes can only be justified if they help avoid a bigger crime. This can be seen as a utilitarian argument. The lesser evils can be justified by beating a greater evil. If that result brings the maximum happiness for the greatest number, the act is justified according to utilitarian belief . One could be imprisoning/torturing/punishing an innocent person as whatever assumption is made about the possibility of the captured person’s value , it remains an assumption, based on subjective thinking in a critical situation. This brings up the following important notion of the effectiveness of torture.
Witches in the middle ages are probably the best example to explain that torture does not lead to reliable confessions. By belief that people could be possessed by the devil , these people were heavily tortured until they admitted to it. A known example of this is how the suspect's arms and legs were tied and then thrown into the water. If the person sank, they were innocent. This was seen as god's judgment. Because of the conviction that witches were possessed by the devil, torture was justified. Because of it, nearly all admitted to being possessed and therefore also others were blamed of witchcraft. In places where there was more torture, there were also more convictions . Torture with the aim to obtain information is therefore of no use for many reasons. There has to be an existing idea of the kind of information someone is suspected of possessing. The person tortured will of course confirm these suspicions if it relieves the pain. This of course says nothing about the truthfulness of the confession. Torture thus simply confirms existing expectations and contributes nothing to the truth.
The prohibition of self-incrimination exists mainly because of the belief that the truth should not come forth from self-incrimination. Force often even has the opposite effect to finding the truth. Hobbes (v. 1995) said that "what is confessed in such a situation tends only to relieve the pain of he who is being tortured, not to provide information to the torturers". The idea of this was that no one can be forced to damage themselves. Given the fact that everyone will want to avoid pain, it is an irrational thought that torture can lead to truthful confessions.
Disproportionate judgment
In the process between an accusation and a conviction, it is important to look for facts that can give grounds to the accusation as well as facts that disprove the accusation. In science it is no different, when verifying and falsifying a hypothesis. If there is not enough evidence to make a solid accusation, this cannot lead to conviction. The extorting of a confession or manipulating research data can not change this. The right to remain silent and the right of representation also find their grounds in the prohibition of self-incrimination. These rights are at the base of a fair trial . A fair trial can be seen as an objective establishment of truth. Doing this by means of forcing confessions cannot be seen as objectively valid and can thus not be considered as evidence in a fair trial. How much importance utilitarians would see in this is disputable, as by stating that torture is acceptable in certain circumstances, they also could argue an unfair trial is acceptable in certain circumstances.
Regardless, if one wishes to publicly trial a person after they have been tortured, in the eyes of the general public the laws will have to be adhered to and thus grounded evidence must have been obtained by then in order to be able to present it. Failing to do so and deciding to take action behind closed doors would then just be an extension of the lawlessness one has until that moment abided by and if notions could have been stretched to an extent, it now would simply become an outlaw-act.
After the events of 9/11, the US government refused to allow some prisoners to testify in criminal court, which stalled the case and led to the sentence to be overturned because of a lack of evidence against who was commonly believed to be an actual terrorist.
Disproportionate reasoning
Joshua Dratel points to the fact that the life-saving argument of consequentialism can be applied to all situations. Criminals or drugdealers aren't tortured either, although that could as well provide information that could save lives. Deontologists state that a morally evil act will remain morally evil, whether the consequences are positive or negative. Even if torture would be the answer to obtain necessary information on extreme situations of emergency, it will never, according to this ethical standpoint be morally acceptable. Furthermore deontology believes it is never acceptable to use other people as a means rather than a goal ( Greenberg , 2005).
Conclusion
It can be concluded that it is not sensible to form government policy based on utilitarian reasoning for torture serving the common good as the end doesn't always justify the means. Besides the fact that in order to uphold the legitimacy of a democratic government, it is important to abide by the separation of powers to avoid abuse of power internally. This should always be at the base of a democratic state. Furthermore the flaws of the assumption-based justification have been presented, showing that it is not possible to determine the truthful knowledge that could according to the theory give justification to torture, nor that it is possible to obtain truthful results by applying torture. The implications of the continuance of such practices form a widespread threat for society in general, legitimizing it for wider use, in turn deteriorating the norms and values that citizens saw as part of the democracy they were born to, and possibly calling out further conflict.
Works cited
Dershowitz, A. (2002). Why terrorism works: Understanding the threat, responding to the challenge . New Haven : Yale University Press.
Driver, J. (2014). The History of Utilitarianism. The Stanford Encyclopedia of Philosophy . Edward N. Zalta (ed.), http://plato.stanford.edu/archives/win2014/entries/utilitarianism-history .
Feinstein, D. (2014, December 9). Feinstein Remarks on CIA Report. Retrieved May 20, 2015, from http://www.feinstein.senate.gov/public/index.cfm/press-releases?ContentRecord_id=d2677a34-2d91-4583-92a4-391f68ceae46
Foucault, M. (1977). Discipline and punish: The birth of the prison . New York : Pantheon Books .
Greenberg, K. (2005). The torture papers: The road to Abu Ghraib. New York: Cambridge University Press.
Hobbes, T. (1995). Leviathan (J. Huggins, Ed.). Nashville: Thomas Nelson .
Ignatieff, M. (2004). The lesser evil: Political ethics in an age of terror . Princeton: Princeton University Press.
Morgan , R. (2000). The Utilitarian Justification of Torture: Denial, Desert and Disinformation. Punishment & Society, 2(2), 181-196. doi:10.1177/14624740022227944
Smit , W. (2011, January 16). Voorbij harde ondervragingstechnieken. De heropleving van martelpraktijken in de strijd tegen het terrorisme. Retrieved May 21, 2015, from http://www.army-chaplaincy.be/befr/2013/02/02/voorbij-harde-ondervragingstechnieken-de-heropleving-van-martelpraktijken-in-de-strijd-tegen-het-terrorisme/
Twinning, W. (1973). Bentham on Torture. Northern Ireland Legal Quarterly, 24(3), pp. 308-320
Verplaetse, J. (2008). Het morele instinct: Over de natuurlijke oorsprong van onze moraal . Amsterdam : Nieuwezijds.
Walzer, M. (1973) Political Action: The Problem of Dirty Hands. Philosophy and Public Affairs 2(2), pp. 160-180
Walzer, M. (2007). On Fighting Terrorism Justly. International Relations , 21(4), 480-484. doi:10.1177/0047117807083073
1 Although utilitarianism is divided into 4 different sub types , only act-utilitarianism is considered here as the other possible option , rule-utilitarianism, does not provide exceptions to rules and if it would, then it would automatically have shifted to act-utilitarianism as the fact that the exceptions were admitted to, would mean they did so to contribute to the maximizing of happiness.
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