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.
Torture is impermissible both under the International Human Rights Convention and under common article 3 of the Geneva Conventions. Acceptable methods of interrogation are usually defined in Army field manuals. Whether these methods of interrogation are trespassing the limits set by international law, should be a judicial determination. If any question arises in this regard, it should not be left to lower officials to make the call. – I agree with the proposition that unusual circumstances such as the “ticking bomb” may merit a laxer interpretation of the law in terms of what is admissible and what is not. – However, this should be decided by the judges who can assess whether certain actions fall within the boundaries of the law within specific circumstances and fact patterns. – That is what the judicial branch usually does.
I understand your position that torture should never be permissible given its cruel and inhumane nature, but do you think that a situation might arise when the torture is necessary as the Israeli government argued? I definitely agree that such power will be widely abused. However, I also think that there may be a scenario when torture would be necessary. As mentioned in class, one of the differences between torture and punishment is the fact that torture usually stops once the information needed is received. What if the information that the torturer is looking for can save lives that are in danger. We often see cases, in the United States, that deal with police coercion and use of force when cops are trying to extort information to save someone in potential danger. Would you agree that it would be okay to make torture permissible in a situation where other lives are dependent, given that the standard of proof is extremely high? By standard of proof I mean that the person being tortured is in fact capable of providing such information and not just a suspect. With that being said, your article is well written.
C.J., I completely agree that a concentration of power would lead to abuse, especially when something as serious and controversial as torture is involved. That is one of the main reasons I disagree with Alan Dershowitz’s contention that judges should issue torture warrants. In my opinion, that leaves judges with too much discretion.
While I would not go so far as to say that torture should never be permissible, I do agree with your stance that it would be very difficult to determine when a situation is grave enough to permit torture.
I found your post to be very intriguing, especially because I am usually in a position where I would defend human rights in the face of almost everything. This would, of course, include the prohibition of torture. However, I would like to inquire into your reasons. Do you accept the difference between “moderate physical pressure” and “torture,” or “cruel and inhuman treatment” and “torture”? What would you say to those who say that an absolutist approach towards “torture” is “naive and hypocritical”? You state that torture should never be permissible; do you mean it should never be used or that it should never be legally accommodated? If it is the first, I would disagree. As argued by Shue, the ticking bomb hypothetical is almost impossible due to idealization and abstraction. If, however, such an exceptional case were to occur, I agree with you that neither the interrogators or the executive should have the power to decide these issues; it would certainly lead to abuse. While torture should never be legally accommodated, I would argue that it could be deemed permissible by a federal court after all the circumstances and facts of the very exceptional case have been submitted for review. Thus, I would follow Gross’ approach of interrogators acting “extra-legally” in circumstances amounting to a catastrophic case and be ready to accept the legal ramifications of their actions.
first, i totally agree that torture should never be permissible and i want to add that some times the person who being tortured will give wrong information just to make the interrogator stop torturing him
second, i disagree with the torture warrant idea . i feel like we give one person the right to do what he thinks is necessary so, how we can make sure that he will not cross the line.
I agree with your position that if the decision to implement torture were given to an individual or branch of government, an abuse of power would surely result. However, does your stance against torture include an opposition to inhuman treatment as well? I think that the ticking time bomb scenario warrants consideration of the use of such tactics to obtain necessary information. Where can you draw the line between inhuman treatment and torture? Does your definition of these tactics change depending on the situation?
I do not endorse torture, however, in the modern world where terrorists evaporate between national boundaries, it may be necessary and proactive to use torture. “Any act by which severe pain or suffering, whether physical or mental is a broad standard”.
Similar to Olivia’s comment, I would never say torture cannot be permissable. In a true “ticking bomb” situation, America needs to balance the interrogation verse the possible cost in lives. In addition, relying on other nations to act in a proper manor has demonstrated historically to be a poor choice for our country.
The very essence of the ticking time bomb concept is time. I therefore disagree with Kee’s comment stating that torture could be deemed permissible by a federal court after all the circumstances and facts of the case had been submitted for review. As we all know, judicial processes and general processes of review take time and therefore I would argue a consideration of judicial review is not a realistic option in regard to an argument concerning the ticking time bomb.
It is a tough argument either way as it is unethical to torture a terrorist with potential information but it is also unethical to let your moral principle condemn hundreds or thousands to death as a result of missed information. To this I would argue that allowing torture sets a dangerous precedent, which is in no way progressive towards the principles of human rights. Therefore, I agree with C.J’s well-articulated article that no torture should be permissible.
I also agree that concentration of power would lead to abuse. I would add to this point that I think the staff of the executive who would be making these decisions to engage in torture or not are people whose primary goal it is to protect civilians, I.e. military officials or CIA agents, and therefore would not bring an objective stance to the potential question of engaging in torture.
There is no easy solution to this problem because as CJ mentioned, there is obvious abuse potential regardless of who is given the ultimate decision power.
However, I disagree that torture should never be allowed. In the ticking-time bomb scenario, I feel that there must be a cost-benefit analysis to determine how to proceed. If the lives of many people are at stake, it may be necessary to resort to extreme measures to prevent a disaster.
If torture was not used in such a situation, I believe that the public would be outraged that the government did not do its job of protecting its citizens. There can be no happy medium in this situation, so I would err on the side of protecting the masses over the individual.
I agree with you in the part that you said that putting the power on only specific law performance would cause abuse, due to the using the power in a bad way.
and I also think that the torture should not be one of the chooses during the investigation because that would be more than acceptable punishment and I could call it inhuman punishment. Moreover, it could lead to a negative consequence, for example th prisoner may harm himself to get out of his situation.
On the surface your argument appears to be completely in line with obligations under international law. I do, however, feel it necessary to advocate from a national security standpoint: what if we do get intelligence on a potential terrorist attack before it happens? What is the course of action then? I also find it a bit naive to assume we could have found a terrorist as remote and dangerous as bin Laden without the tactics implemented by U.S. interrogators. Would a panel of judges issuing torture warrants have helped in that scenario either? I suppose we will never know but the question remains crucial that if we do torture, we are abusing our power and violating human rights, but if we don’t torture, we subject ourselves to a weak defense of security.
I have always been of the belief that two wrongs do not may a right. Therefore, I am typically against torture of any kind. That being said, I do believe that there are very limited circumstances where torture maybe justified. The ticking time bomb scenario presented is the perfect example of what could constitute a reason to have to go to the extreme lengths of torturing one suspect so that the lives on many innocent people may be saved. This utilitarian based principle is not ideal, but if it is the only way to avoid a larger death toll, then I do think that the ability to choose the lesser evil should be permissible. I agree with Alan Dershowitz, and believe that “torture warrants” should be issued by judges whose job is to be impartial and make difficult decisions. Accountability should always accompany these types of decisions that must not be taken lightly. Torture should always remain the most limited exception, rather than the norm.