In September 11, 2001, the world woke up to the news of a transnational terrorist attack of a magnitude that had never been seen before. The United States of America, which is the world’s most powerful country, was caught by surprise. At the end of it all, over 3,000 innocent people lay dead while another 5,000 were injured both physically, emotionally, and financially (Wisnewski 2008).
What went wrong in this case? How did such a major terrorism attack escape the eagle eye of the Central Intelligence Agency (CIA), Federal Bureau of Investigation (FBI), and other Counter-terrorism agencies, including military intelligence both within and outside the US?
The period signified the need to reflect back on the effectiveness of the existing counter-terrorism measures and henceforth putting mechanisms that will ensure that such an event does not ever again occur in the United States and the world at large.
In the aftermath of the September 2001 events, the world governments were more united and in agreement that there was a need to step up counter-terrorism measures and where possible introduce new ones to ensure that terrorist plans were thwarted before they could materialise (Slater 2006).
This paper discusses the concept of torture as a counter-terrorism measure by analysing the argument that torture is a legitimate tool because it provides a sense of justice to the victims, even though its effectiveness is limited.
In the paper, an extensive review of the existing literature will be done with a view of understanding how different authors have approached torture as a counter-terrorism measure. Further, case studies of scenarios where torture has been used successfully will be discussed with an aim of linking the lessons from such cases to the main argument of the paper.
The Torture Debate
The question of whether torture is justified is a long-standing one in civilised societies. Historically, acts of torture can be traced to over 2,000 years ago, especially in the Roman Empire and other warring kingdoms of the time where it was used to subdue opponents and enemies to give vital information (Waltzer 1973).
However, since the 18th century, with many gains on human rights, there have been extended efforts to eliminate torture throughout the world (Scarry 2004). Indeed, the prohibition of torture is a key issue in the modern human rights movements as reflected in many national and global declarations and laws against the act (Greer 2004).
For instance, the Universal Declaration on Human Rights completely prohibits any form of torture. Instead, it calls for the application of just, fair, and lawful methods of dealing with individuals who are suspected of any wrongdoing (Hoffman 2002). Bodies such as ‘The Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment’ make torture their central focus.
They hold that it must be prohibited absolutely and unconditionally (Roth 2005). To show how deeply this issue is enshrined in the modern world, nearly all countries are parties or signatories of international or regional declarations against torture.
According to Sussman (2005), torture goes against all liberal visions of politics and humanity since it leads to serious inhuman acts against a person who is protected by the same human rights apparatus that protects all people in the world. Further, Sal (2004) summarises the debate on torture by asserting that liberal democracy’s history is itself tied to absolute prohibition of torture.
The human cost of terrorism has been universally felt, whether in Kenya, the streets of the abandoned Mogadishu, the United Kingdom, or even the Far East Asia. Organisations such as the United Nations have not been left out. They have suffered tragic human loss from terrorist attacks that have been targeted at their facilities and their personnel.
For instance, in August 2003, the UN offices in Baghdad were attacked. In the aftermath, 22 people, including the special representative of the secretary general were killed while other 150 persons were seriously injured (Felner 2008).
Financially, terrorism has cost the world over USD$4 trillion in terms of counter-terrorism measures, compensation for victims of terror, and disruption of business and economic activities (Lankford 2010).
It is a consensus that terrorism goes against the all-acceptable norms of the society. Terrorism is an abuse to human rights due to its disruption of the right to life, liberty, and physical integrity of innocent victims (Slater 2006).
Further, it has the potential of disrupting governments, undermining harmony in the society, and jeopardising peace, security, and economic integrity of the society at a large scale.
For example, the rise of the Islamic State of Iraq and Syria (ISIS) is directly linked to the continuing conflict in Syria and Iraq where innocent people are being killed, kidnapped, and properties destroyed and hence the evident negative effect on their way of life. People have a right to enjoy their human rights.
No one should take them. With the backing of their populations, it is the mandate of governments to protect their citizens and/or ensure that they enjoy these rights to the fullest (Foot 2006).
Since security is a basic right, respective governments have an obligation to guarantee this vital right to citizens. Besides, the government has the duty of taking positive measures that will protect its citizens from acts such as terrorism by bringing its perpetrators to justice (Wolfendale 2006).
In the efforts to protect citizens and the world from the infringement of their rights, security measures that have been taken in the ‘War Against” have become a hot topic for human rights activists, governments, the public, and the media.
For a long time, it was a consensus that in the quest to safeguard the rights of its humans, the actions of governments, and in this case the security apparatus, must not violate the same rights the actions seek to protect (Duff 2005). In other words, even those people who are suspected of terrorism and other grave acts are ‘human’ who are entitled to the same rights that protect the innocent ones.
However, to many scholars, policymakers, and human rights activists, the fight against terror has pitted the ideas of security and liberty against each other (Lukes 2005). In this case, the protection from terrorism has been reflected as being in conflict with the protection of human rights. In this debate, torture features prominently where the discussion is on whether it can be justified as a counter-terrorism measure.
Since the World War II, the question of whether to use torture for any purpose has been out of discussion in many countries (Macmaster 2004). Torture violates all rights that the world has managed to achieve. To many of its opponents, it should never be used.
Based on the increase of terrorist threats and their potential of killing hundreds of people in addition to other repercussions, torture is now increasingly becoming an acceptable option of preventing such attacks.
According to Hoffman (2002), supporters of the torture method assert that under carefully specified circumstances, torture on suspects is a lesser evil since it can help authorities to acquire vital information that can thwart terrorist attacks and as such a greater evil that menaces the global community.
Opposition to torture is not just a preserve of modernity and the secular world. However, it is also in religion. According to Gross (2004a), the present-day human rights movement knowingly and unknowingly draws heavily from theological thoughts, which place high value on human dignity.
According to Shatz (2002), although religious traditions have not offered a consistent message on torture and that they (traditions) have not been beyond the grasp of Christianity point of view, it must be said that the present ethical imperatives against torture are as much attributed to the religious class as it is linked to the high politics of human rights.
Therefore, Shatz (2002) concludes that torture, which uses physical, moral, or any form of violence to extract information through confessions to punish the guilty, instil fear in dissidents, or satisfy hatred, is against the respect for human dignity.
In terms of law and ethics, the opposing torture is incontestable based on the overwhelming clear expression that it is against human dignity and goes against all the fabric of human rights. This strong support against torture makes it unimaginable for any person to ever think of the review of current laws and declarations that have stated clearly and in strong words their stand against the vice (Crelinsten 2003).
However, the fact that torture has become a controversial topic among nations, law enforcers, and other interested parties makes the debate even more astounding (Morgan 2000). When did it reach a point where there would be a debate of whether torture should be used? To many opponents of torture, this debate is already closed and should not be a debate at all (Posner 2006).
For instance, introducing torture again would be returning the world to the ear of World War I and II when it was used as a war tactic of suppressing opponents and obtaining information from the captured enemies (Gross 2004b).
Despite the above clear stands on torture, especially through law and universally accepted declarations on the same, many thoughtful and morally serious thinkers have argued that there may be situations that torture can be legally and morally permissible. Wolfendale (2006) presents a substantial academic consensus that there may be situations where practice of torture can be a lesser evil to avert a greater iniquity in the society.
Torture as a Counter-terrorism Measure
While the stand against torture is evident in laws, conventions, and instinctively on human populations, torture has never been eliminated from nations. For instance, much debate on the topic has emerged after the 9/11 event. However, Greer (2004) reports that torture has been a long-standing practice in the United States and many other countries of the world.
In his work, Greer (2004) explores reports and instances of torture going back to the cold war in Asia, Central America, and Latin America. For example, an Amnesty International report documented a widespread torture in 24 nations, including Iran, Brazil, Vietnam, and Philippines.
Further, the report also mentioned torture in European countries, including France, Belgium, Czechoslovakia, Denmark, and Austria where the practice was prevalent in the 1940s. Worldwide, while the practice has been common, in spite of the existence of declarations and laws against it, only Israel has practiced torture within the law (Foot 2006).
In justifying torture, the concept of ticking bomb scenario is used extensively. The ticking bomb scenario refers to a hypothetical situation where a known terrorist has planted a bomb in a location where he alone is aware of and it is counting down to explosion with the potential of killing many people. The terrorist is not ready to give information. Time is running out.
The only alternative is torture to force the information out of the suspect. According to Dershowitz (2002a), when presented with a ticking bomb scenario, many thoughtful and morally serious thinkers can support torture as a lesser evil where the pain of an individual leads to the saving of hundreds of lives. Posner (2006) asserts that in times of emergency, the law of necessity takes over.
In this case, in a ticking bomb scenario, it is a necessity to take drastic measures to protect innocent lives. The law of necessity, which is present in many nations’ constitutions, provides an avenue where the regulation should be amended during any urgent situation (Posner 2006).
In support of the argument of the law of necessity, which states that some deeds that might be criminal are declared legal by well-calculated reason or by the need of selecting between two wrongdoings, Wisnewski (2008) asserts that during extreme emergencies, while torture is prohibited, the necessity provides an overriding validation for situation.
Dershowitz (2002b) supports torture by saying that in ticking time bomb situations, defence of necessity serves as an alternative and effective tool of interrogation of terror suspects. Duff (2005) points out that torture is a valid option if it is the only chance of saving lives in imminent peril.
One of the most prominent and influential authors has been Derschowitz (2002a) who has elaborately discussed and supported occasional sanction of torture. In his book Why Terrorism Works, he explores in details the question of whether torture can be used in a ticking bomb scenario. In his work, Derschowitz (2002a) starts by accepting that liberal democracies have been highly attached to the prohibition of torture.
For instance, he gives an example of the case where terrorists kidnapped the former prime minister of Italy. While the authorities had a suspect in custody who possibly knew the prime minister’s whereabouts, the option of torture was denied. Subsequently, the minister was killed.
The situation clearly shows the price that Italian authorities were willing to pay to ensure that something as tragic as torture was kept out of the nation (Dershowitz 2002a).
Derschowitz goes on to disapprove those who are against torture on the argument that it is not effective and that it produces unnecessary information. In his response, he asserts that although many people wish torture did not work, the reality is that it does work (Dershowitz 2002a).
For instance, he points out to a 1995 case where a terrorist plan that was targeting the Pope and several commercial planes that were carrying passengers across the Pacific Ocean was thwarted after the Philippines authorities tortured a suspect until he revealed the crucial information.
In this case, Derschowitz (2002a) confirms that pretending that torture never works does not advance the debate on whether to torture a terror suspect in a ticking bomb scenario or not. However, he is quick to point out that torture does not always work just like other techniques of crime prevention.
Indeed, the choice of torture as a ‘necessity’ is a clear indication of the failure of alternative methods of crime prevention (Gross 2004b). The fact that torture works in producing valuable intelligence is the main reason why no nation has been able to eradicate it completely.
Despite all anti-torture movements, and in light of the current period where the threats of nuclear, biological, and chemical terrorism are real, torture has to be brought as an alternative since tragic choices that require torture are inevitable (Duff 2005).
In another article ‘Want to torture? Get a Warrant,’ Derschowitz (2002b) asserts his case for a possible introduction of lawful torture. He gives an example of a hypothetical situation where the American authorities have captured a suspected terrorist with information of an imminent attack on innocent Americans. However, the suspect has refused to give any information.
What should the authorities do? In answering this question, Derschowitz (2002b) is without doubt that torture must be used. In addition, he confirms that majority of the members of the public will expect and support such a move, regardless of the existing anti-torture laws (Dershowitz 2002b).
The public expects the government to break any laws and/or treaties if that is what it would take to safeguard people’s lives. In this case, the debate should not be on whether or not to use torture but on whether torture should be used within law or outside law.
According to Macmaster (2004), Derschowitz’s (2002b) optimism and certainty that the US authorities should use torture in the above case is not farfetched. It is a public knowledge that all nations, including the established democracies such as the US have used torture outside law at some point. Only Israel has used torture within law to fight terrorism due to the threats it faces on a daily basis (Gross 2004a).
In defence of its use of terror, Israeli authorities say that since the threats they face are enormous and more than any other country of the world, torture comes as a viable option of getting vital information to safeguard the rights to security of its people (Gross 2004a). For instance, Gross (2004a) gives an example of case where the Israelite authorities have used torture and justified their acts.
In one famous case, Palestinian terrorists kidnapped Nachshon Waxman, a 19-year-old soldier. In the ensuing efforts to recover him, the Israelis captured the driver of the car that the soldier had been taken away in, and severely tortured him until he disclosed the location.
While Waxman was killed during the rescue operation, the Prime Minister of the time, Yitzhak Rabin, defended the acts of torture by arguing that it was due to such acts that they were able to locate Waxman and make a rescue attempt.
According to Dershowitz (2002a), the fact that the Prime Minister, a Nobel laureate, considered and allowed torture is a clear indication that torture can be justified in some situations. Many people might agree that the security challenges that Israel faces warrant the use of torture in some situations.
According to Derschowitz (2002a), although the ticking bomb scenario remains a hypothesis to many countries, it is a matter of time before the US finds itself in such a situation.
Consequently, to prepare appropriately for such an event, it is important for the US to design special torture warrants that are admissible within law. Judges or other relevant authorities can issue such warrants to allow specific agents to apply torture to protect the lives of innocent citizens (Wisnewski 2008).
In explaining further the concept of torture warrants, Derschowitz (2002a) explains that they should only be applied where lives on innocent members of the population are at stake and that there exists probable evidence that a suspected terrorist in custody has the vital information that can ensure the risk is averted, but has refused to give it up.
A good example is the capture of the Guzman Loera, a drug lord, who was one of the most wanted criminals in the world. The capture of two of his close aides aided his capture. That vital information was obtained only after the aides were tortured. Further, by making provisions of torture through law, the author insists that victims of torture should be given immunity due to the sensitive nature of information they give.
He claims that the victims should be awarded immunity from prosecution and be given large amounts of cash and a new identity as a reward for their information. However, torture should never be lethal. However, it should use methods that produce agonising pain without endangering lives such as the use of insertion of needles underneath the nails.
However, although the author admits that the use of warrants sounds like an awful ideal, failure to apply them can still lead to unlawful torture since there is no other way around it.
Regarding the possibly of torture warrants that lead to a slippery slope where such warrants are issued even in cases without ticking bomb scenarios , Derschowitz (2002a) dispels such fears by claiming that it can be harder to justify torture without warrants. Further, such warrants can lead to accountability, which is lacking in the current world where torture is prohibited, but continues to happen anyway.
Without a warrant, torture cannot happen. Further, fewer lawful tortures might be evident due to the conditions that have to be met in the issuance of certification.
Many authors have responded overwhelmingly to the calls for torture warrants by Derschowitz (2002a). Indeed, his assertions have attracted a lot of outrage and criticism. For instance, Gross (2004b) has called for total ban on torture as opposed to the circumstantial sanction of torture as suggested by Derschowitz (2002a).
Gross (2004b) asserts that from a pragmatic and moral perspective, torture is inhumane since it goes against all moral stands. Hence, it deserves to be eliminated. However, Gross (2004b) agrees that there are extreme ticking bomb situations where torture can be excused. In these extreme and unusual circumstances, torture warrants can be a good idea when used as a basis for a general policy.
He suggests an approach where truly extreme situations can give rise to what he refers to as official disobedience where officials may act ‘extra-legally’ and be ready to face the legal consequences for their actions.
While there are situations where torture is permissible, he argues that such ‘few’ situations cannot justify their need to be turned into law. Instead, he suggests a situation where the public pays a part in implementing the ‘Ex Post’ ramifications when an official acts extra-legally by torturing a suspect.
Gross (2004b) goes on to explain how his suggestions of Ex Post ramifications are a better alternative to Derschowitz (2002a) torture warrants. In his support for this position, Gross (2004b) confirms that by keeping torture outside the law, officials will be uneasy about breaking the law. This situation cannot be the case if torture is legalised as suggested by Derschowitz (2002a).
Gross (2004b) confirms that torture warrants can lead to slippery slope. In some cases, such warrants can be issued for wrong reasons. In liberal democracies where torture is prohibited, no official can allow torture unless it is extremely necessary and justifiable to break the law. There are three reasons to support his suggestion as opposed to Derschowitz (2002a).
Firstly, the fact that officials will have to explain why they want to break the law is a restraining factor for the option of torture. Secondly, since breaking the law requires an open declaration, it allows the government, citizens, and global community to have an open dialogue.
Thirdly, since the officials who break the law have to prove accountability to the public and accept the ramifications, the move ensures that torture is allowed only in extreme cases.
Another author who comes out strongly to disapprove Derschowitz’s (2002a) argument of torture warrants is Scarry (2004). She criticises Derschowitz (2002a) for basing his argument on an imaginary ticking bomb scenario instead of the numerous real scenarios where torture has been used. She points that it is unjustifiable to change our laws for an imaginary scenario.
She points various problems to Derschowitz’s (2002a) argument. The first argument is that Derschowitz (2002a) assumes that anybody in a ticking bomb scenario will opt for torture. However, Scarry (2004) claims that as much as Derschowitz (2002a) is convinced for this course of action, there is a possibility that other people in the same situation will not want to compromise their strong moral stands by torturing an individual.
It is possible that just as many people will not want to compromise the lives of potential victims, many other people will not want to compromise their anti-torture beliefs. The second argument is that Derschowitz (2002a) suggests that torture warrants might lead to accountability.
In this case, Scarry (2004) claims that since such warrants will be within the law, it is impossible to hold individuals to accountability after the torture since they have acted within the law. Therefore, Scarry (2004) concludes that it is important to prohibit torture than to introduce torture warrants.
Wisnewski (2008) supports Derschowitz’s (2002a) argument in many areas. However, he criticises Derschowitz’s (2002a) assertion that either torture warrants are introduced to increase accountability and/or reduce torture incidences, or the status quo is maintained where torture will continue its current trend where there is no accountability.
According to Wisnewski (2008), Derschowitz’s (2002a) proposal reflects his deep hatred for hypocrisy. Derschowitz (2002a) believes that it is counter-productive to have anti-torture laws while it is happening worldwide. In this case, Derschowitz’s (2002a) proposal is timely and relevant since it tries to reconcile the law with our actions.
However, Wisnewski (2008) confirms that it is not justifiable to have torture warrants simply because there is a lot of hypocrisy on torture. Torture warrants can be worse than the hypocrisy of having anti-torture laws.
Wisnewski (2008) posits that Derschowitz (2002a) selectively suggests two options (whose results are the same) to allow torture and/or ignores the option of never allowing torture. He quotes the United Nation’s Anti-torture Convention that prohibits torture and its permissibility under any circumstance.
More support for torture comes from Waltzer (1973) who asserts that it can be sanctioned under certain circumstances. In his book, Political action: The problem of dirty hands, Waltzer (1973) asserts that politicians face situations where they have to sanction torture, despite the fact that they are aware that it is not right.
In this case, Waltzer (1973) points out that the politician is facing a dirty hand scenario and must therefore sanction torture. He further observes that it is impossible to govern innocently in politics. It is easy to get one’s hands dirty. In most cases, it is the right thing to do.
Under certain circumstances, it is permissible to do bad things as long as an individual is aware he or she is doing something wrong and is ready to face the consequences that may ensue.
Any person who permits torture, despite its illegality due to the circumstances of the situation (ticking bomb), is justified. However, he should be ready to pay for the repercussions. Waltzer (2008) asserts that such a man should be judged for his actions at the time for he is a good man whose actions are said to be right.
The above assertions on torture have greatly relied on the utilitarian justification of torture, which centres on the law of necessity that allows extra-legal actions in certain circumstances. An increasing support is evident for the use of non-lethal torture to avert the greater evil where innocent lives are at risk of being lost.
One of these proponents is Felner (2008) who asserts that torture can be justified when it is not lethal since it only offers temporal pain to a suspected terrorist to avert permanent consequences such as death, serious injuries, and economic repercussions that might be incurred in the event the attack succeeds. For a long time, countries such as the UK and the USA were, and still are, in the forefront against torture.
However, since the events of 9/11, there has been a protracted opinion that the public in this countries is increasingly warming to the idea of torture with the premise of ‘if torture works’. The public is an important part of this debate since such acts are carried out and justified by asserting that they are intended for the greater good of the population.
In the United States, before the events of 9/11, it would have sounded crazy to imagine that the topic of torture would ever arise. However, the magnitude of the attack and the realisation that the US was not as safe as previously thought brought the issue to the forefront of political, media, and the public rhetoric. For instance, a study carried in 2009 showed that the US was equally divided for and against torture.
This observation is a clear indication of the increasing support for the method. This case was in great contrast to a 1975 Amnesty International report that put opposition for torture at 76% in the US and 75% across the world (Lankford 2010).
Since 2001, the public has been fed with information on various plots that have been thwarted by the US and other countries across the world based on information obtained from suspects in custody and/or under interrogation. By interrogation, it is obvious that torture has been used in the process.
Several cases can be cited to that effect. For instance, in 2002, an eleven-year-old boy was kidnapped. Over £1 million was paid as ransom for the release of the victim. However, even after the money was paid, the boy was not released. The police had tracked down Magnus Gafgen who had collected the ransom and went on a spending spree (Felner 2008).
When he was arrested and was not willing to disclose the boy’s whereabouts, he was threatened with torture. He was finally able to give information that led to the discovery of the boy’s body.
In this case, although police officers were not able to save the boy’s life, it was through torture that information was obtained to recover his body. Following the case, there was overwhelming support from the public that torture was the only possible option in such a situation, and thus justifiable.
For many proponents, it is right to say that although torture has limited effectiveness, just like any other crime prevention method, it offers a sense of justice to the victims of terrorism. According to Foot (2006), it is the norm where the public has experienced a devastating terrorist attack that the opinion on the use of torture becomes favourable.
Further, Hoffman (2002) argues that since terrorism has taken a global scope, it is evident why a global debate has ensued on the use of the method to extract information that can be used to thwart attacks. Security agents have an obligation to provide security to citizens. This responsibility is even more serious when dealing with terrorism, which has a high potential of killing many people at once.
Terrorists present the public’s worst nightmare and hence the increasing justification to keep them away in whatever means possible. After all, they deserve it. According to Wisnewski (2008), the use of torture can be justified as a self-defence act where the government has to take equally serious measures to keep away terrorists just as the terrorists put a lot of seriousness in their quest to attack.
For instance, in the search for Osama Bin Laden, the CIA and other security agencies captured, tortured, and detained many suspects. Regardless of such actions, it was seen and accepted by many people across the world as the only way through which the leader of Al-Qaida would be brought to Justice.
In other words, the war against terror is like a war between equally able states where the weakness of one leads to the demise of the other (Foot 2006). However, in this case, a win by terrorists stands to be more devastating to the society than a loss in torturing one terrorist to deny a win on the other participants. Consequently, there is always a feeling of victory and justice when terror attacks are thwarted, regardless of the applied methods.
From the above discussions, there is an overwhelming argument against torture, which has a long-standing foundation in the history of human civilisation. It is against many liberal democracies and international conventions to subject an individual to torture as it is against human dignity and rights. However, it is evident that torture has never been eliminated.
Well-established democracies such as the US have to make their hands dirty and use torture for various reasons. World over, only Israel has used torture within law due to the security threats it faces on a daily basis. Since the events of September 11, 2001, the use of torture has become a heated debate in the fight against terror. It has also attracted support from different scholars and other important parties such as lawmakers.
For instance, the law of necessity in a ticking bomb scenario has been used overwhelmingly to advance the arguments of those who support torture. Other proponents such as Derschowitz (2002b) have come out to advocate for the changing of laws to accommodate torture as a reality that cannot be wished away.
The introduction of torture warrants will bring accountability and a reduction of torture cases since they will be limited to only extremely volatile ticking bomb scenarios. While this opinion is not popular, it has been supported by the existing literature since it points out to a shift from the hypocrisy of having anti-torture laws when torture is happening left, right, and centre.
However, other people cite that legalising torture will be an unacceptable drastic measure. Instead, they offer what is referred to as official disobedience where authorities are allowed to act extra-legally in serious ticking bomb situations. Despite the arguments that are against it, the sad reality is that it is works for the interest of the public.
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