PAPER TOPIC II
"What's Wrong with Torture?"
Drawing on the reading and your own sound reasoning and good judgment, answer the question and and/or questions on the following pages, think of the most powerful objections to your case that someone might offer, and respond to them.
In defending your position, offer what you believe are the most principled arguments you can make. In thinking of objections to your argument, think of the best possible objections that someone on the other side might be able to come up with, i. e., give yourself a hard time. If you can respond to the other side at its strongest rather than at its weakest point, that can only help to strengthen your own opinion and make it that much more persuasive.
The paper should be between six and seven pages in length, or longer if you wish. Please hand in TWO COPIES, one makred "COPY 1," the other marked, not unsurprisingly, "COPY 2." Papers are due on Monday, April 4th, in class.
What's Wrong with Torture?
Should torture be prohibited? Absolutely? Without exception? Or might there be some situations such as the ticking-bomb case described below where torture might be justified?
It is generally assumed that torture is impermissible, a throwback to a more brutal age. Enlightened societies reject it outright, and regimes suspected of using it risk the wrath of the United States.
I believe this attitude is unwise. There are situations in which torture is not merely permissible but morally mandatory. Moreover, these situations are moving from the realm of imagination to fact.
[The Ticking Bomb]: Suppose a terrorist has hidden an atomic bomb on Manhattan Island which will detonate at noon on July 4 unless ... here follow the usual demands for money and release of his friends from jail. Suppose, further, that he is caught at 10 a.m on the fateful day, but preferring death to failure, won't disclose where the bomb is. What do we do? If we follow due process, wait for his lawyer, arraign him, millions of people will die. If the only way to save those lives is to subject the terrorist to the most excruciating possible pain, what grounds can there be for not doing so? I suggest there are none. In any case, I ask you to face the question with an open mind.
Torturing the terrorist is unconstitutional? Probably. But millions of lives surely outweigh constitutionality. Torture is barbaric? Mass murder is far more barbaric. Indeed, letting millions of innocents die in deference to one who flaunts his guilt is moral cowardice, an unwillingness to dirty one's hands. If you caught the terrorist, could you sleep nights knowing that millions died because you couldn't bring yourself to apply the electrodes?
Once you concede that torture is justified in extreme cases, you have admitted that the decision to use torture is a matter of balancing innocent lives against the means needed to save them. You must now face more realistic cases involving more modest numbers. Someone plants a bomb on a jumbo jet. I He alone can disarm it, and his demands cannot be met (or they can, we refuse to set a precedent by yielding to his threats). Surely we can, we must, do anything to the extortionist to save the passengers. How can we tell 300, or 100, or 10 people who never asked to be put in danger, "I'm sorry you'll have to die in agony, we just couldn't bring ourselves to . . . "
Here are the results of an informal poll about a third, hypothetical, case. Suppose a terrorist group kidnapped a newborn baby from a hospital. I asked four mothers if they would approve of torturing kidnappers if that were necessary to get their own newborns back. All said yes, the most "liberal" adding that she would like to administer it herself.
I am not advocating torture as punishment. Punishment is addressed to deeds irrevocably past. Rather, I am advocating torture as an acceptable measure for preventing future evils. So understood, it is far less objectionable than many extant punishments. Opponents of the death penalty, for example, are forever insisting that executing a murderer will not bring back his victim (as if the purpose of capital punishment were supposed to be resurrection, not deterrence or retribution). But torture, in the cases described, is intended not to bring anyone back but to keep innocents from being dispatched. The most powerful argument against using torture as a punishment or to secure confessions is that such practices disregard the rights of the individual. Well, if the individual is all that important, and he is, it is correspondingly important to protect the rights of individuals threatened by terrorists. If life is so valuable that it must never be taken, the lives of the innocents must be saved even at the price of hurting the one who endangers them.
Better precedents for torture are assassination and pre-emptive attack. No Allied leader would have flinched at assassinating Hitler, had that been possible. (The Allies did assassinate Heydrich.) Americans would be angered to learn that Roosevelt could have had Hitler killed in 1943, thereby shortening the war and saving millions of lives, but refused on moral grounds. Similarly, if nation A learns that nation B is about to launch an unprovoked attack, A has a right to save itself by destroying B's military capability first. In the same way, if the police can by torture save those who would otherwise die at the hands of kidnappers or terrorists, they must.
Idealism:There is an important difference between terrorists and their victims that should mute talk of the terrorists' "rights." The terrorist's victims are at risk unintentionally, not having asked to be endangered. But the terrorist knowingly initiated his actions. Unlike his victims, he volunteered for the risks of his deed. By threatening to kill for profit or idealism, he renounces civilized standards, and he can have no complaint if civilization tries to thwart him by whatever means necessary.
Just as torture is justified only to save lives (not extort confessions or incantations), it is justifiably administered only to those known to hold innocent lives in their hands. Ah, but how call the authorities ever be sure they have the right malefactor? Isn't there a danger of error and abuse? won't "WE" turn into "THEM?" Questions like these are disingenuous in a world in which terrorists proclaim themselves and perform for television. The name of their game is public recognition. After all, you can't very well intimidate a government into releasing your freedom fighters unless you announce that it is your group that has seized its embassy. "Clear guilt" is difficult to define, but when 40 million people see a group of masked gunmen seize an airplane on the evening news, there is not much question about who the perpetrators are. There will be hard cases where the situation is murkier. Nonetheless, a line demarcating the legitimate use of torture can be drawn. Torture only the obviously guilty, and only for the sake of saving innocents, and the line between "US" and "THEM" will remain clear.
There is little danger that the Western democracies will lose their way if they choose to inflict pain as one way of preserving order. Paralysis in the face of evil is the greater danger. Some day soon a terrorist will threaten tens of thousands of lives, and torture will be the only way to save them. We had better start thinking about this. - Michael Levin, "The Case for Torture," Op-Ed
But "extreme situations such as the ticking bomb case," to adapt a bit of conventional wisdom, "may only encourage poor and sloppy moral thinking or worse, ill-considered legal opinions."
What's wrong with torture?
And why might we - as a people - seek its absolute ban even in such extreme situations? "Freedom from torture, cruel, inhuman or degrading treatment is an absolute right, covered and protected in a range of international, regional, and national instruments," among them the UN's Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Drawing on the ticking bomb case, make an argument for or against an absolute ban on torture, think of three powerful objections to your argument and respond to them.
Then, consider the following:
The FBI's frustration over its inability to get material witnesses to talk has raised a disturbing question rarely debated in this country: When, if ever, is it justified to resort to unconventional techniques such as truth serum, moderate physical pressure and outright torture?
The constitutional answer to this question may surprise people who are not familiar with the current U.S. Supreme Court interpretation of the 5th Amendment privilege against self-incrimination: Any interrogation technique, including the use of truth serum or even torture, is not prohibited. All that is prohibited is the introduction into evidence of the fruits of such techniques in a criminal trial against the person on whom the techniques were used. But the evidence could be used against that suspect in a non-criminal case--such as a deportation hearing--or against someone else.
If a suspect is given "use immunity"--a judicial decree announcing in advance that nothing the defendant says (or its fruits) can be used against him in a criminal case--he can be compelled to answer all proper questions. The issue then becomes what sorts of pressures can constitutionally be used to implement that compulsion. We know that he can be imprisoned until he talks. But what if imprisonment is insufficient to compel him to do what he has a legal obligation to do? Can other techniques of compulsion be attempted?
Let's start with truth serum. What right would be violated if an immunized suspect who refused to comply with his legal obligation to answer questions truthfully were compelled to submit to an injection that made him do so?
Not his privilege against self-incrimination, since he has no such privilege now that he has been given immunity.
What about his right of bodily integrity? The involuntariness of the injection itself does not pose a constitutional barrier. No less a civil libertarian than Justice William J. Brennan rendered a decision that permitted an allegedly drunken driver to be involuntarily injected to remove blood for alcohol testing. Certainly there can be no constitutional distinction between an injection that removes a liquid and one that injects
What about the nature of the substance injected? If it is relatively benign and creates no significant health risk, the only issue would be that it compels the recipient to do something he doesn't want to do. But he has a legal obligation to do precisely what the serum compels him to do: answer all questions truthfully.
What if the truth serum doesn't work? Could the judge issue a "torture warrant," authorizing the FBI to employ specified forms of non-lethal physical pressure to compel the immunized suspect to talk?
Here we run into another provision of the Constitution--the due process clause, which may include a general "shock the conscience" test. And torture in general certainly shocks the conscience of most civilized nations.
But what if it were limited to the rare "ticking bomb" case--the situation in which a captured terrorist who knows of an imminent large-scale threat refuses to disclose it?
Would torturing one guilty terrorist to prevent the deaths of a thousand innocent civilians shock the conscience of all decent people?
To prove that it would not, consider a situation in which a kidnapped child had been buried in a box with two hours of oxygen. The kidnapper refuses to disclose its location. Should we not consider torture in that situation?
All of that said, the argument for allowing torture as an approved technique, even in a narrowly specified range of cases, is very troubling.
We know from experience that law enforcement personnel who are given limited authority to torture will expand its use. The cases that have generated the current debate over torture illustrate this problem. And, concerning the arrests made following the Sept. 11 attacks, there is no reason to believe that the detainees know about specific future terrorist targets. Yet there have been calls to torture these detainees.
I have no doubt that if an actual ticking bomb situation were to arise, our law enforcement authorities would torture. The real debate is whether such torture should take place outside of our legal system or within it. The answer to this seems clear: If we are to have torture, it should be authorized by the law.
Judges should have to issue a "torture warrant" in each case. Thus we would not be winking an eye of quiet approval at torture while publicly condemning it.
Democracy requires accountability and transparency, especially when extraordinary steps are taken. Most important, it requires compliance with the rule of law. And such compliance is impossible when an extraordinary technique, such as torture, operates outside of the law. - Alan M. Dershowitz, "The Case for Torture Warrants," LA Times, November 8, 2001.
What do you think? Do you agree with Dershowitz?
Are "torture warrants" to your mind a good idea?
Does Dershowitz's case for torture warrants prompt you to change your mind about an absolute ban on torture? Does it help you to resolve any and all problems you had with permitting torture "even in a narrowly specified range of cases?"
Now consider the following:
Among the unsettling effects of the September 11 terrorist attacks on New York and Washington and the anthrax mailings that followed is their triggering, seemingly overnight, of a national debate over whether the United States should practice torture - as a matter of national policy - to combat terrorism. The pro-torture camp wants to authorize law-enforcement agents to inflict intense physical pain in order to extract information from suspected terrorists (the word "suspected" is often conveniently omitted by the law's proponents) where that information might pinpoint the location of a "ticking bomb" or otherwise avert some imminent act of mass carnage.
So imagine the surprise of many long-time legal observers when Harvard Law professor Alan Dershowitz published an op-ed piece in the Los Angeles Times on November 8, arguing that "if we are to have torture, it should be authorized by the law" and that the authorities should be required to apply to judges for "torture warrants" in each case. A careful reading of his op-ed indicates that Dershowitz did not actually go so far as to say he favors torture. And in subsequent lectures and interviews he placed on record his personal opposition to torture. But the piece drew a firestorm of criticism from both liberals and libertarians, who argued that Dershowitz had indirectly sanctioned the use of torture and should now be regarded as a turncoat in the battle to preserve civil liberties.
Nonetheless, Dershowitz's op-ed makes a fairly powerful, though flawed, argument that torture would be ruled constitutional. Under the right circumstances, he claims, torture, while "very troubling," would pass a test the Supreme Court has sometimes used to determine the constitutionality of the government's use of an extreme law-enforcement technique: whether it "shocks the conscience."
"Consider a situation in which a kidnapped child had been buried in a box with two hours of oxygen," suggests the law professor, ever the master of the difficult hypothetical. "The kidnapper refused to disclose its location," he continues. "Should we not consider torture in that situation?"
Dershowitz, clearly uncomfortable with his own rhetorical question, does not quite give a direct answer. In order to avoid an ugly answer to an impossibly difficult moral and legal question, he takes another route. Since there is "no doubt that if an actual ticking bomb situation were to arise, our law enforcement authorities would torture," he says, "the real debate is whether such torture should take place outside of our legal system or within it." The answer to this question is clear and easy for Dershowitz: "If we are to have torture, it should be authorized by law" because "democracy requires accountability and transparency."
Besides, Dershowitz argues, the Constitution poses no obstacle to legal, court-authorized, supervised torture. That's because the Fifth Amendment's protection against self-incrimination does not protect against requiring someone to testify and disclose information; it merely protects against the use of such information against the person interrogated. Thus, in the face of a court-issued "immunity" order, any citizen may be forced to testify in a judicial forum, or suffer imprisonment for the refusal to do so. Nor does Dershowitz believe that any "right of bodily integrity" that might be read into the Bill of Rights prohibits, say, the injection of "truth serum," since the Supreme Court has already authorized the forcible drawing of blood from a suspect for alcohol testing. "Certainly there can be no constitutional distinction" he argues, "between an injection that removes a liquid and one that injects a liquid." (This particular argument is spurious, and Dershowitz should know better: he is a long-time opponent of the death penalty, where the current preferred method of execution is the injection of deadly poisons into the veins of the convict.)
Dershowitz fails to mention altogether another amendment - the Eighth, which states quite plainly that no "cruel or unusual punishments [shall be] inflicted." The modern-era Supreme Court has ruled that this standard, which is inherently subjective, must be interpreted according to society's evolving standards of decency. It is likely that the pre-September 11 Court would have ruled that techniques all would agree constitute "torture" would qualify as "cruel" and (for our society, at least) "unusual." But in the atmosphere created by the ghastly attacks of September 11, the Court might now rule that it is neither cruel nor unusual to torture a convict, a prisoner, or even a mere suspect, if the information that might be wrung from that person could save thousands of innocent lives. (After all, the Supreme Court did uphold the constitutionality of President Franklin D. Roosevelt's transfer of Japanese-Americans from the West Coast into "relocation camps" after Pearl Harbor, and of his using a military tribunal to try - and execute - German saboteurs who landed on our shores intending to destroy strategic targets.) War does change mindsets, even of the courts - and understandably so.
But leaving aside his interpretation (or neglect) of inherently vague constitutional provisions, Dershowitz's conclusion is clear: if torture is to be administered, it should require "torture warrants" issued by judges before whom the government must lay out reasons why torture - and only torture - could extract life-saving information. "Thus we would not be winking an eye of quiet approval at torture while publicly condemning it," he says.
Some advocates of torture justify their position on the simple ground that monsters like those who helped level the World Trade Center deserve to be tortured, ostensibly to get information that might prevent future catastrophic destruction of human life. (Of course, if the pain inflicted also goes a small way toward exacting some retribution for the WTC carnage, though the suspected terrorist had nothing to do with September 11 but is planning an entirely new attack, some would view it as a just bonus.) But Dershowitz is not in that camp. He understands that in the real world, when law-enforcement authorities have reason to believe that a suspect has information that can save lives, individual cops and agents will resort to torture no matter what. After all, we have long struggled to control the gratuitous use of torture by police on suspects from whom they seek to extract confessions, and by sadistic prison guards against inmates for no apparent practical purpose whatsoever. Can there be any real doubt that a law-enforcement officer, or, for that matter, most of us, would probably be willing to resort to the torture of a person who knew where to find our kidnapped child or where to locate an atomic bomb ticking away in some major American city?
So what, then, is wrong with a system that requires torture warrants - especially if an opponent of torture like Dershowitz can argue for their constitutionality? The answer is threefold.
First, institutionalizing torture will give it society's imprimatur, lending it a degree of respectability. It will then be virtually impossible to curb not only the increasing frequency with which warrants will be sought - and granted - but also the inevitable rise in unauthorized use of torture. Unauthorized torture will increase not only to extract life-saving information, but also to obtain confessions (many of which will then prove false). It will also be used to punish real or imagined infractions, or for no reason other than human sadism. This is a genie we should not let out of the bottle.
Second, we should think twice before entirely divorcing law from morality. There can be little doubt that until now, Americans have widely viewed torture as beyond the pale. The US rightly criticizes foreign governments that engage in the practice, and each year our Department of State issues a report that classifies foreign nations on the basis of their human-rights records, including the use of torture. Our country has signed numerous international treaties and compacts that decry the use of torture. We tamper with that hard-won social agreement at our grave moral peril.
Third, our nation sets an example for the rest of the world: we believe not only in the rule of law, but in the rule of decent laws, and in a government composed of decent men and women who are accountable to a long tradition. There may be more efficient ways of governing, but our system is intentionally inefficient in certain ways in order to protect liberty. Our three co-equal branches of government immediately come to mind. Also, government can almost always proceed more efficiently if it is not dogged by an independent press protected by the First Amendment. But we have found from long experience that, as Jefferson famously said, if one were forced to choose between government without the press or the press without government, the latter might well be preferable. Trials by jury are long, inefficient, expensive, and sometimes lead to the acquittal of defendants whom the state is convinced are guilty and wants very much to incarcerate or even execute. Some of those acquitted are indeed guilty. Yet trial by jury remains the best (albeit imperfect) system ever devised for ascertaining truth while curbing government excess and abuse of power. Torture may sometimes offer an efficient means of obtaining information, but efficiency should not always trump other values.
Yet we still face Dershowitz's "ticking bomb" hypothetical. How do we deal with that? Is it really moral, after all, to insist on having "clean hands" and to refrain from torture, when thousands or even hundreds of thousands of people could die as a result of our pious and self-righteous morality?
The answer to this quandary lies in a famous criminal-law decision rendered in Victorian England by the British appeals court known as the Queen's Bench. It is a case studied by virtually every American law student at virtually every law school. In Regina [the Queen] v. Dudley and Stephens, the court dealt with one of the most difficult criminal cases in English legal history.
In July 1884, four crewmen of a wrecked English yacht were set adrift in a lifeboat more than 1000 miles from the nearest land mass. They had no water and no food except for two one-pound tins of turnips. Three of the men - Dudley, Stephens, and Brooks - were "able-bodied English seamen," while the fourth lifeboat passenger was an 18-year-old boy who was less robust than the others and soon showed signs of weakening. As they drifted, severe hunger and thirst set in. It became clear, as the trial court found, that unless the three stronger seamen killed the boy - who by then had deteriorated substantially and was on the verge of dying anyway - and then ate his body and drank his blood, all four of them would die. "There was no appreciable chance of saving life except by killing one for the others to eat," and the boy seemed the most logical candidate since he was "likely" to die anyway, as the trial court put it. Dudley and Stephens followed this course, with Brooks dissenting. Once the boy was killed, all three partook of his flesh and blood. Four days later, the three survivors, barely alive, were rescued by a passing ship.
The Queen's Bench was faced with the question of whether, under English law, the three were guilty of murder, or whether the homicide was justified by a "defense of necessity." The judges concluded that they were guilty of murder and should be sentenced to death. "[T]he absolute divorce of law from morality would be of fatal consequence," they wrote, "and such divorce would follow if the temptation to murder in this case were to be held by law an absolute defense of it." Were this bright line against murder abandoned, warned the court, it might "be made the legal cloak for unbridled passion and atrocious crime." The genie, in other words, would have escaped from the bottle, with unimaginable consequences.
But since this case is a very hard one and the outcome - the death penalty - would strike most civilized people as excessive under the circumstances, the judges suggested a way out of the dilemma. The judges claimed that it is left "to the Sovereign" - in this instance, the Queen - "to exercise that prerogative of mercy which the Constitution has intrusted to the hands fittest to dispense it." In other words, executive clemency offers a way to trim the harsh edges of the law in the truly exceptional case.
The lesson of this case for the use of torture warrants is clear. When a law-enforcement officer truly believes that a suspect possesses life-saving information, and commits the perfectly human act of torturing the suspect to obtain that information, the officer should be tried for the crime of violating the suspect's constitutional rights, or for some related crime such as assault and battery or mayhem (willful bodily mutilation). If the jury, acting as the conscience of the community, decides that the officer does not deserve to be convicted and punished under the circumstances, it will acquit. Indeed, under our system of unanimous jury verdicts in federal and most state criminal trials, a single juror who refuses to vote for conviction can "hang" the jury and prevent a verdict and hence a conviction. In our legal history, there have even been instances where juries, exercising what is known as "jury nullification," have refused to convict or have acquitted obviously guilty defendants. Such verdicts are hardly unknown, as in cases of mercy killings or the medical use of marijuana.
Further, even when a conviction has been handed down in a hard case, the government's chief executive (the president of the United States or, on the state level, usually the governor) may exercise his or her constitutional authority to commute (or terminate) the sentence and free the defendant, or even pardon the defendant and thereby wipe clean his or her criminal record. In the Dudley and Stephens case, in fact, Queen Victoria commuted the sentence to six months' imprisonment. This is how a civilized nation upholds civic decency and the rule of law while allowing for those exceptional situations when normal human beings break the law for some greater good or under conditions of overwhelming necessity.
We do not need, and should not dare to enact, a system of torture warrants in the United States. Our legal system is perfectly capable of dealing with the exceptional hard case without enshrining the notion that it is okay to torture a fellow human being. - Harvey Silverglate, "Torture Warrants?" The Boston Phoenix, December 6-13, 2001.
Drawing on Dershowitz and Silverglate, make a case for or against torture made legal through the issuance of torture warrants, think of three powerful objections to your argument and respond to them.
Now take a look at (read) Henry Shue on "Torture" - Brandeis Access Only and give an overview. i.e., a cohesive summary, of the main arguments and considerations put forward by Shue in his essay, online in the WebCT for Human Rights.
An interesting feature of Shue's argument is he looks closely at the case that might be made for or against torture from within Just War Theory. Shue makes a distinction between "terroristic" and "interrogational" torture. Might there be a case for one but not the other? What case might that be? Do you agree with it? If so, why? If not, why not? What, in the end, do you think Shue's opinion is? Does he oppose all torture or a certain form of torture under clearly specified conditions?
Then take a look at (read) what Amnesty International has to say on the issue of torture and give an overview. i.e., a cohesive summary, of the main arguments and considerations put forward by Amnesty International in its introduction to "Torture in the Eighties" in PDF File format on the WebCT for Human Rights.
Amnesty International is clearly opposed to torture and prersses for its abolition worldwide. Amesty makes both a moral and legal case against the use of torture. What is Amnesty's moral argument? What is its legal argument? Amnesty also recommends twelve points for the prevention of torture worldwide.
Do think Amnesty's recommendations have worked?
If so, why? If not, why not?
Finally, look at "The Photographs" the pictures taken at the Abu Ghraib Prison in Iraq and reproduced on pages 217- 24, of Mark Danner's Torture and Truth, NYRB Books, 2004. Give an overview. i.e., a cohesive summary, of the main arguments and considerations put forward by Danner in his "Introduction," pp. xiii-xiv, and in his first three opening short essays on "Torture and Truth," "The Logic of Torture," and "The Secret Road to Abu Ghraib," pp. 1-49 in Torture and Truth.
According to Danner did the acts that took place at Abu Ghraib prison and captured in The Photographs constitute torture? And from Danner's point of view, what's wrong with torture? And glacing at some of the documents collected by Danner in Torture and Truth, to the best of your understanding were any of the acts that took place at Abu Ghraib prison and of which the photographs are but a glimpse not torture? And even if they were, were such acts - to your mind - in any way justified?
On moral grounds?
On legal grounds?
If so, why? If not, why not?
Torture at Abu Ghraib
United Nations Agreements on Human Rights
Send comments to: Andreas Teuber
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