The following article I wrote for the 8 June 2009 issue of the Canadian periodical, Christian Courier. Although it does not, admittedly, address the question of precisely what constitutes torture, I assume here that it encompasses methods that are in some fashion disproportionate to the legitimate quest for public security and are thus unjust.
At one time it was a commonplace occurrence to see convicted criminals treated in painful and humiliating ways. Grisly penalties were applied to murderers, pickpockets and heretics, and ordinary people turned out in large numbers to witness these spectacles, apparently learning the hard lesson that, to coin a cliché, crime does not pay. However the English Bill of Rights of 1689, adopted after the previous year’s ouster of King James II, prohibited the application of “cruel and unusual punishments,” in language that would eventually find its way into the US Bill of Rights and Canada’s Charter of Rights and Freedoms, where the word “treatment” was notably added.
What then of pre-trial treatment? What means are permitted in questioning a suspected criminal, that is, someone who has not yet been found guilty of a punishable crime? Since ancient times brutal means have often been employed to elicit a confession or incriminating information from a defendant. Such means are still used throughout the globe, despite the existence, among other similar treaties, of the 1985 United Nations Convention Against Torture, of which Canada and the United States are signatories.
Arguments against torture are based on two types of reasoning, principled and pragmatic. On the principled side, it is argued that human beings have an intrinsic dignity that ought not to be violated through mistreatment, even if it is in the interest of a larger good, for example national security. An argument can also be made that those who engage in torture must suppress their own humanity to bring themselves to commit such an act. In short, torture is unjust.
Those of a more pragmatic bent insist that, even if torture were not morally wrong, its use is not effective, as the victim could easily confess to something he did not do in order to end the ordeal. Even if the suspect is guilty of harbouring information about fellow conspirators that might be crucial to stopping a terrorist act, he could just as easily give false or misleading information to his interrogators, who would not necessarily know the difference.
Nevertheless, the temptation to torture is one that many officials find irresistible when confronted with a threat to the lives of innocent people, much as in wartime a country’s government will be tempted to retaliate in kind against an attack on civilians. There can be no doubt that al-Qaeda and similar organizations have employed unjust means, precisely to entice their opponents to respond in illegal ways and thereby discredit themselves.
Admittedly the United States was in a difficult international position as it sought an effective response to the 9/11 attacks. The Bush administration severely botched the public relations side of this as it needlessly alienated otherwise friendly governments needed to mount an effective multilateral defence.
Moreover, the fact that Washington has claimed to be waging a war on terror was, from the outset, deeply misguided. It is precisely because this “war” has such a nebulous and unattainable aim that the government prosecuting it will tend to lose sight of which means are appropriate in its pursuit. If our aim is to eradicate terror, residual bourgeois sympathies, schoolyard bullying or something similarly unrealistic, any effort to do so will almost inevitably tempt us, in our choice of means, to flirt with the edges of legality and rectitude. Why? Simply because no means whatever will enable us to reach a goal so vague as to lack a reasonable chance of success.
Better to keep a feasible goal before us and to choose methods proper to its accomplishment, avoiding those that corrupt us and transgress the norms of justice.
January 11th, 2010 | 11:34 am | #1
This reminds me of a line I read from Darrell Cole’s essay against torture. The government has the right to bear the sword, but it does not have the right to carve lines into a detainee’s skin for sadistic interrogation purposes.
January 11th, 2010 | 11:41 am | #2
“What then of pre-trial treatment? What means are permitted in questioning a suspected criminal, that is, someone who has not yet been found guilty of a punishable crime? Since ancient times brutal means have often been employed to elicit a confession or incriminating information from a defendant.”
The question at issue is not to extract a confession under duress, but to extract intelligence under duress. This is about counterespionage, not pretrial discovery.
“Even if the suspect is guilty of harbouring information about fellow conspirators that might be crucial to stopping a terrorist act, he could just as easily give false or misleading information to his interrogators, who would not necessarily know the difference.”
It’s no different than a homicide detective who grills a suspect. He then treats what the suspect tells him as a possible lead which he must follow-up to either confirm or disconfirm. If it turns out to be a false lead, he goes back, armed with that information, to grill the suspect again.
“Any effort to do so will almost inevitably tempt us, in our choice of means, to flirt with the edges of legality and rectitude.”
i) Whether or not we’re skirting the edges of legality begs the question of what laws we should have in place. Do we have good laws? Do our laws protect the innocent, or do our laws protect the assailant?
ii) Should we start with questions of legality or questions of morality?
January 11th, 2010 | 1:00 pm | #3
Adam Omelianchuk
“The government has the right to bear the sword, but it does not have the right to carve lines into a detainee’s skin for sadistic interrogation purposes.”
A straw man argument.
January 11th, 2010 | 1:16 pm | #4
I do not believe that the definition of torture can be used to cover any unpleasant means used by government. Imprisonment is unpleasant and it may have lasting psychological effects, but that doesn’t make it torture. We shouldn’t adopt a definition that would exclude legitimate means used by government to enforce the law.
This is the definition found in the UN Convention:
It might be good to consider whether this is an appropriate and workable definition, whether it needs to be modified, or whether it should be scrapped altogether.
January 11th, 2010 | 1:22 pm | #5
Steve Hays: A straw man argument.
Adam Omelianchuk: Hardly.
January 11th, 2010 | 1:27 pm | #6
Steve Hays: It’s no different than a homicide detective who grills a suspect. He then treats what the suspect tells him as a possible lead which he must follow-up to either confirm or disconfirm. If it turns out to be a false lead, he goes back, armed with that information, to grill the suspect again.
Adam: Actually, it is very different. A detective “grilling” a suspect is not the same as torturing a suspect. Torture is thought to be an aid to investigating–to getting truth from the detainee–it is not the process of investigation itself.
January 11th, 2010 | 1:44 pm | #7
Adam Omelianchuk
“Actually, it is very different. A detective ‘grilling’ a suspect is not the same as torturing a suspect. Torture is thought to be an aid to investigating–to getting truth from the detainee–it is not the process of investigation itself.”
You’ve abandoned your own argument. You originally objected to “torture” because it’s ineffective in yielding reliable information.
This assumes that an interrogator (or his superiors) simply takes the information at face value, rather than attempted to do any fact-checking.
To the contrary, information from a terrorist is no different that information from a criminal suspect. In both cases they may feed the interrogator misinformation. In both cases the interrogator will treat that information as a possible lead which may or may not turn out to be a false lead.
January 11th, 2010 | 1:48 pm | #8
Adam Omelianchuk:
“Hardly.”
It’s a straw man argument for you to compare, let us say, a CIA interrogator who uses sleep deprivation on a terrorist to extract information regarding a terrorist plot to a torturer who is takes a butcher knife to a victim for sadistic pleasure. Not only is your comparison grossly inaccurate, but it’s downright defamatory.
Why do you think it’s morally permissible for you, as a professing Christian, to misrepresent the opposing position with scurrlious comparisons?
January 11th, 2010 | 1:54 pm | #9
Actually, I haven’t abandoned my own argument at all, and it is you have undermined your own. My argument is that torture and grilling a suspect (or lawful means of extracting information) are two different things.
You are thinking that information extracted from a suspect via lawful means and torture are in the same epistemic place. So why is torture necessary at all? The argument for torture rests on a dubious premise that it will lead to reliable information, for when the suspect is put under its duress the suspect will be more willing to tell the truth. Information extracted from a detainee or a suspect via torture is thought to be more reliable, and therefore torture is necessary for the state to do in order to protect its citizens.
But you do not think this is the case, for information extracted under lawful methods of interrogation is of the same epistemic quality as that of information extracted via torture.
Why torture then? For sadistic pleasure?
January 11th, 2010 | 1:58 pm | #10
Adam: Why do you think it’s morally permissible for you, as a professing Christian, to misrepresent the opposing position with scurrlious comparisons?
Steve: You commit the fallacy of the complex question because you do not understand the context of my remarks at all.
Reflecting on David’s post that contained remarks about cruel and unusual punishments I was reminded of Darrell Cole’s essay about the just and unjust use of the sword. That is the issue, and there is no straw man being made, because there is no argument being made. I am only recalling a point made by a Just War ethicist about the unjust nature of torture.
January 11th, 2010 | 2:57 pm | #11
Suppose that you had reasonable grounds to suspect that one of the apostles – Judas in particular – would directly or indirectly attempt to kill Jesus within 24 hours. Further suppose that you were legally motivated to prevent all murders, including that of Jesus.
Assuming that Judas refused to answer uncoerced questioning, what manner of coercive interrogation – compliant with Christian morality/doctrine – would have be permissible to employ on Judas?
January 11th, 2010 | 3:19 pm | #12
Adam Omelianchuk
“You are thinking that information extracted from a suspect via lawful means and torture are in the same epistemic place. So why is torture necessary at all?”
“Torture” is your tendentious word, not mine. Don’t impute your assumptions to me.
“The argument for torture rests on a dubious premise that it will lead to reliable information, for when the suspect is put under its duress the suspect will be more willing to tell the truth.”
It rests, on part, on the premise that absent an adequate motivation, he may have no incentive to say anything at all.
“Information extracted from a detainee or a suspect via torture is thought to be more reliable, and therefore torture is necessary for the state to do in order to protect its citizens.”
i) There’s no prior assumption regarding its reliability or unreliability. But we can only check out the reliability of what he says, not what he refuses to say.
ii) At the same time, he does have an incentive to tell the truth if he thinks that lying will result in renewed interrogation.
“But you do not think this is the case, for information extracted under lawful methods of interrogation is of the same epistemic quality as that of information extracted via torture.”
i) To the contrary, it could well be the case that more coercive techniques applied to criminal suspects would sometimes yield very useful information.
ii) However, as I pointed out to Joe Carter, there are tradeoffs in dealing with domestic and foreign terrorists.
Citizens have, or ought to have, greater rights because they have greater responsibilities. They buy into the system. There are general benefits for all. But that also comes at a cost.
Take the presumption of innocence in a criminal trial. That’s a classic tradeoff.
It’s justifiable under the terms of a social contract.
iii) That’s quite different than dealing with foreign terrorists.
January 11th, 2010 | 5:40 pm | #13
steve hays,
The Presumption of Innocence specifically applies to “alien unlawful enemy combatants” because of the Military Commissions Act of 2006 (MCA). [note that it was passed when Republicans had majorities in the Senate and House] This is how the Heritage Foundation describes it:
Modeled after the Uniform Code of Military Justice (UCMJ) – the code that the U.S. military uses to try soldiers, sailors, airmen, and Marines – the MCA provides unprecedented rights to alien unlawful enemy combatants at trial. The MCA balances U.S. international law obligations and the national security of the U.S. while the conflict continues.
The MCA provides alien unlawful enemy combatants virtually the same due process and rights that are provided by the United Nations in their war crimes tribunals…
January 20th, 2010 | 1:22 pm | #14
“ii) Should we start with questions of legality or questions of morality?”
It seems to me that we should be like Jesus, and not like the pharisees. That is, we should start with morality and not legality.
regards,
#John
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