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Torture thriving – it’s time to nail the equivocators

In the immediate aftermath of World War Two, as awareness of the horrific atrocities inflicted by the Nazi regime on Jews, gypsies, homosexuals, and the disabled filtered out, there was widespread international agreement that systems and structures should be put in place to prevent future recurrence of such barbarity. One pillar of these efforts was the establishment of the United Nations, armed with a mandate to prevent “aggressive war”, the “supreme crime” according to judges at the Nuremberg Trials and one from whose savage bosom the other evils had flowed.

The ensuing decades also gave birth to a range of treaties and declarations, such as the Universal Declaration of Human Rights, the International Convention on Civil and Political Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Geneva Convention and the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, all of which explicitly prohibited the practice of torture.

In the Northern hemisphere (the North), questions as to the permissibility of torture were generally considered beyond the pale of ‘civilised’ debate and, apart from the odd maverick, it was regarded as reprehensible to advocate its practice. Indeed, the North frequently used to condemn the manner in which inhumane and undemocratic regimes in the Southern hemisphere (the South) used torture to stay in power.

The reality on the ground was far more complicated, though, as states in the North were frequently complicit in the practice of torture either as an accessory or partner to non-democratic regimes in the South or behind ‘closed doors’ in the North itself. In addition, several states in the North were involved in pioneering new forms of torture methods that left no marks on its victims.

However, it was only in the wake of 9/11 and the Bush administration’s declaration of the ‘War on Terror’ that many intellectuals in the North felt sufficiently emboldened to pop their heads above the parapet and openly challenge for the reinstatement of torture as a weapon in the armoury of democratic states. At the forefront of the torture advocates were members of the Bush administration. Alberto Gonzalez, then White House Counsel and later US Attorney General, argued that Bush’s decision not to apply the Geneva Convention against coercive interrogation to the ‘unlawful combatants’ of Al Qaeda and the Taliban, rendered US interrogators less liable for prosecution. In December 2002, Rumsfeld gave the green light for a range of interrogation techniques that entailed, inter alia, hooding, isolation, stress positions, sensory deprivation, 20-hour interrogations, dietary ‘adjustment’ as well as the use of dogs in Afghanistan and Guantanamo. The following April, Rumsfeld issued a memo in which he refused to rule out any interrogation method, allowing for the possibility of additional techniques being requested on a case by case basis.

While the Bush administration’s readiness to promote and justify the use of torture was perhaps understandable, if none the less abhorrent, the eagerness of liberal commentators to jump on the torture bandwagon has been arguably far more alarming.

One of the best known advocates of torture is the legal professor Alan Dershowitz. For Dershowitz, it is the “ticking bomb” of potential terrorist atrocities that provides us with the moral right to torture suspects, should they prove unwilling to divulge such information voluntarily. Confronted with a situation where a captured terrorist has stubbornly refused to disclose information as to where a bomb has been planted, which might result in numerous fatalities, how should one act? Would it not be prudent and sensible, even moral, to torture the terrorist until he divulged his sordid secret so that we might prevent the loss of innocent life?

In defining his “ticking bomb” in such a manner, Dersowitz is presenting his audience with an intellectual fait accompli. Although we risk damning ourselves morally to some degree by engaging in torture, a refusal to countenance so doing courts a far greater damnation as we risk becoming an accomplice in the murder of innocent people.

Indeed, Dershowitz goes on to argue that in certain instances interrogational torture should be legally sanctioned. After all, torture will doubtlessly be applied by concerned interrogators when faced with a “ticking bomb” situation. Therefore, the least worst option would surely be to drop the “hypocritical pretence” of torture’s illegality and legalise it as needs dictate.

However, such linguistic mind games, clever though they may be, hardly provide a solid framework for deciding whether or not to introduce a legally sanctioned policy of torture. After all, as writers such as Alfred McCoy have cogently pointed out, the likelihood of catching a ‘terrorist’ we know has precise information regarding a bomb that will shortly explode at an unknown location and time, is so improbable that it would be a highly impractical foundation upon which to base one’s “law, diplomacy and national security”.

Variants of Dershowitz’s position can be seen in the arguments of other commentators such as John T Parry, Richard Posner, Jean Bethke Elshtain and Henry Shue, who though in favour of the practice of torture in certain instances, do not believe it should be legalised.

Another important figure in this debate is Michael Ignatieff, the ex-head of Harvard’s Carr Center for Human Rights and current leader of the Liberal opposition in Canada. In The Lesser Evil, Ignatieff holds that while torture should never be upheld as a general practice, strong arguments might be made in favour of the judicious application of coercive interrogation techniques in extraordinary circumstances, in order to protect western democracy from the greater evil without. For Ignatieff, the trick would lie in “identifying the justifying exceptions and defining what forms of duress stop short of absolute degradation of an interrogation subject”.

Although Ignatieff is clearly more restrained than Dershowitz in his arguments, his writings are none the less pernicious. Such moral ambiguity towards torture – or coercive interrogations – can only help to pave the way for its re-entry into mainstream practice.

Torture should be unequivocally and absolutely condemned in order that it is recognised by everyone, and most particularly those in positions where it might be seen as just another weapon in their arsenal against the enemy, as unacceptable. Indecision as to its permissibility in exceptional circumstances only serves to let the evil genie of torture out of its bottle.

As Ian Buruma has argued, it was the “morally degraded climate” generated by the Bush administration and its phalanx of lawyers that created an environment conducive for the practice of torture that took place in Abu Ghraib. It was such a “morally degraded climate” that led to individuals like Lynndie England abusing Iraqi prisoners and not any specific inherent character defect in the torturers themselves.

Living as we do at a historical moment where the epithet of evil has been widely and randomly applied as a rhetorical device to demonise and, by extension, dehumanise the enemy of choice, thus justifying the application of ever more repressive means against them, the threat to our moral inhibitions preventing the practice of torture has become ever more serious.

While the Bush administration may have ridden off into the sunset, the torture debate is far from resolved. Neither would its practice appear to be over. Despite the appointment of a special prosecutor to investigate CIA prisoner abuse cases by Obama’s Attorney General Eric Holder, the policy of rendition, whereby terrorist suspects are kidnapped and removed to more ‘torture friendly’ jurisdictions, continues to flourish.

Perhaps the ethical paucity of the current ‘lesser evil’ arguments advocating the reinstatement of torture, in one form or another, was best captured by Erich Fromm who wrote almost 50 years ago that “[T]he principle of ‘the lesser evil’ is the principle of despair” and as such certainly not the right way for any society, particularly those that purport to be democratic, to defend themselves.