POST WRITTEN BY: C.J. Croll 15′
In what situations may a government take extraordinary means to get information? There are conventions on the use of Torture that summarily prohibit its use. The Convention Against Torture defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted . . . .” Additionally, Article 7 of the International Covenant on Civil and Political Rights prohibits torture and “cruel, inhuman or degrading treatment.” The ICCPR has 167 state parties and its prohibition of torture has crystallized into customary international law.
Governments have argued that there are situations in which extraordinary means may be taken. The Israeli government articulated the ticking time bomb scenario in HCJ 5100/94 Public Committee against Torture v. Israel. The government did not, however, specify who would decide whether the situation was dire enough to justify the use of torture. Further the government of Israel argued that the necessity defense would justify such action, but the Israeli Supreme Court rightfully rejected this proposition.
Should the ticking time bomb situation come to fruition, who would decide that it had? Would it be the individual interrogator, the head of a CIA black site detention center, or would the executive need to make this determination? Whoever would decide would be given immense power. Do we want this power concentrated in a single individual or a handful of individuals? The framers of the Constitution and signers of the Declaration of Independence deplored the centrality of power in such a way.
The argument should be dismissed for two reasons: First, torture should never be permissible. Second, the concentration of power would lead to abuse. Beyond the fundamental distrust for the gross abuse of torture, there should be a fundamental distrust for the concentration of power to decide whether to break international obligations.