Torture

The topic of torture has come up again because George W Bush is doing the bookselling round, pushing his memoirs. He still believes that waterboarding is not torture and that it was justifiable to use waterboarding to extract information from terrorists. He also stated that the intelligence that led to the discovery of the 'liquid bombs' destined to be loaded on airplanes at Heathrow came from waterboarding evidence

Torture has come up twice recently on "Question Time", the BBC program on which a panel of politicians, businessmen and celebrities are asked difficult questions from the audience. The politicians are always against torture and waterboarding is regarded as torture.

Kiefer Sutherland has established his reputation with the series '24' in which numerous ticking bomb scenarios are explored with a view to justifying torture in that situation. The politicians of Question Time disregard such an argument saying that these situations don't happen in real life; they are a fiction writer's invention.

Interestingly, the businessmen on the panels have felt that the arms of the security service should not be tied. The weapon of torture should be held in reserve for the extreme case. At least it would leave a hint of fear in the mind of the criminal.

In fact waterboarding is used in the UK. It is part of the training of the SAS and SBS so that they have experience of resisting interrogation if they are captured. However, it has been the policy of successive British governments that we do not torture prisoners. This has dated from the Northern Ireland ‘Troubles’ when it was held that even insisting that a prisoner stand in a particular position so that lactic acid accumulated in his muscles and caused painful (though physically unmarked) legs amounted to torture and was illegal.

In America it is widely assumed that the United States tortured senior Al Qaeda leader Khalid Shaikh Mohammad. There is irrefutable evidence that it tortured large numbers of Iraqi prisoners and there is strong evidence that it tortured prisoners at Guantanamo Bay prison in Cuba, where suspected Al Qaeda terrorists are held.

Mirko Bagaric is a Professor Law and Head of the Deakin Law School. He believes that the belief that torture is always wrong is misguided and symptomatic of the alarmist and reflexive responses typically emanating from social commentators. He thinks that this is undesirable and should be corrected; that this type of absolutist and shallow rhetoric lies at the core of many distorted moral judgments and that Americans as a community continue to sustain an enormous amount of injustice and suffering in their society and far beyond their borders because of this attitude.

He gives this as an example where all the warm and fuzzy principles would go out of the window: A terrorist network has activated a large bomb on one of hundreds of commercial planes carrying over three hundred passengers that is flying somewhere in the world at any point in time. The bomb is set to explode in 30 minutes. The leader of the terrorist organization announces this via a statement on the Internet. He states that the bomb was planted by one of his colleagues at one of the major airports in the world in the past few hours. No details are provided regarding the location of the plane where the bomb is located. Unbeknown to him, he was under police surveillance and is immediately apprehended by police. The terrorist leader refuses to answer any questions to police, declaring that the passengers must die and will shortly.

Mirko Bagaric goes on to argue: Who in the world would deny that all possible means should be used to extract the details of the plane and the location of the bomb? The answer is very few. Claims that there is an absolute proscription against torture would run very hollow. The passengers, their relatives and friends and society in general would expect that all means should be used to extract the information, even if the pain and suffering imposed on the terrorist resulted in his annihilation. Given this, it is illogical to insist on a blanket prohibition against torture. The debate must turn to the circumstances when torture is morally appropriate. The reason that torture in such a case is defensible and necessary is because the justification manifests from the closest thing we have to inviolable right: the right to self defense, which of course extends to the defense of another. Given the choice between inflicting a relatively small level of harm on a wrongdoer and saving an innocent person, it is verging on moral indecency to prefer the interests of the wrongdoing.

An example, not involving torture has surfaced close to home here. A man who lived not far from here was looking after his wife with dementia. Eventually her state deteriorated to such an extent that he could not cope and his own quality of life was deteriorating. It became necessary for her to be cared for in a nursing home. Unfortunately he would not recognize the fact and his own mental state was deteriorating. When the ambulance came to collect her he confronted the paramedics with his illegally held service revolver and fired warning shots. The paramedics called the police who sent an armed response unit and a hostage negotiator.

In the UK we are rightly proud that are police are not armed. Homicides are still relatively rare in the UK and are largely confined to family disputes or black-on-black gang warfare in big cities. There is a highly trained armed response unit attached to the police, yet for every 100 times they are called out they discharge their weapons fewer than 5 times. This was one of the occasions. After some time of negotiation, the old man fired his revolver and hit a policeman in the chest. Another policeman fired back and killed the man. The first policeman was wearing body armor which stopped the bullet and all he suffered was nasty bruising, but it could have been a head shot. I think that most people would agree that when a policeman has been hit by a bullet, his colleagues are permitted to fire back and the old Cowboy and Indian story of just ‘winging’ the culprit has long been shown up as a fairy story. Lethal force has to be applied.

In another recent incident, a London lawyer, high on booze and drugs was seen brandishing a shotgun from the window of his apartment while shouting and threatening both suicide and mayhem. Despite negotiations his behavior continued unchecked and when he fired his shotgun indiscriminately at the waiting crowd he was killed by a police marksman.

It is always a matter of judgment when to fire, but the guiding principle is self defense and the defense of the innocent.

Bagaric continues: The analogy with self-defense is further sharpened by considering the paradigm hostage taking scenario, where a wrongdoer takes a hostage and points a gun to the hostage’s head threatening to kill the hostage unless a certain (unreasonable) demand is met. In such a case it is not only permissible, but desirable for police to shoot (and kill) the wrongdoer if they can get a ‘clear shot’. This is especially the case if it is known that the wrongdoer has a history of serious violence – and hence is more likely to carry out the threat.

There is no logical or moral difference between this scenario and one where there is overwhelming evidence that a wrongdoer has kidnapped an innocent person and informs police that the victim will suffocate or be decapitated by a co-offender if certain demands are not met. In the first scenario, it is universally accepted that it is permissible to violate the right to life of the aggressor to save an innocent person. How can it be wrong to violate an even less important right (the right to physical integrity) by torturing the aggressor in order to save an innocent life in the second scenario? The scenarios are morally equivalent.

Torture is permissible where the evidence suggests that this is the only means, due to immediacy of the situation, to save the life of an innocent agent. What level of harm can be inflicted to save the innocent person? As with self-defense, lethal force is justifiable. This is the only situation (torture as self defense) where it is justifiable. Thus of course we do not condone any of the recent claims of torture which were apparently undertaken as punitive measures or in a bid to acquire information where there was no evidence of an immediate risk to the life of an innocent person.

The problem with these examples is, as the Question Time panelists realized is that they never (or hardly ever) happen in real life. They would argue that torture is so morally repugnant that there must be an absolute ban on its use and that society must accept that bad things happen that we can’t do anything about. We all realize that you can’t trust a confession obtained by torture – remember the trial of Anne Boleyn - but information obtained by torture may or may not be true and the information is testable. The recent printer bomb sent from Yemen and discovered at East Midlands airport would have exploded less than three hours after it was removed from the airplane. The information about this bomb was obtained from Saudi Intelligence. We have no idea whether torture was used, but it is widely believed that that organization has not the same sensitivities about its use. Had the information not been available that plane and its crew would have been lost short of the American coast.

Bagaric continues: The examples above are hypothetical but the force of the argument cannot be dismissed on that basis. Fantastic examples play an important role in the evaluation of moral principles and theories since they sharpen the contrasts between them and illuminate the logical conclusions of the respective principles and in this way test the true strength of our commitment to the principles. Moreover, given the extreme measure that some disgruntled groups around the world are now taking to advance their causes, it is not difficult to envisage the community being faced with such a reality. We should be prepared for that and appoint a small number of officials who are competent to issue ‘torture warrants’ to police.

He advances a real life case that might have been worthy of torturing the perpetrator. In June 2006 Joseph Korp and his lover knocked his wife on the head and locked her in the boot of his car and left her to die. Had the police apprehended them, would they have been justified in torturing them in order to find the wife’s whereabouts before she eventually died? And what better way of torturing the one by inflicting damage on the other. You wouldn’t even need to do it, just a threat and some screams night work the oracle. In the end the wife was found alive, but died in hospital without regaining consciousness

Of course there are arguments against Bagaric’s approach. The first is the slippery slope. Start allowing torture in extreme circumstances and soon it will be used in less extreme. Is this likely? Internationally torture is widely used. Amnesty International has recently reported that they had received, during 2003, reports of torture and ill-treatment from 132 countries, including the United States, Canada, Japan, France, Italy, Spain and Germany. Perhaps, like smoking cannabis an unrealistic total ban has driven it underground. perhaps legislation allowing some kind of coercive questioning in highly regulated circumstances would actually lessen the amount of torture happening.

The second argument is that it would ‘dehumanize’ society as a whole. But would it? Does our tolerance towards self-defense dehumanize us? Perhaps if we favored the interests of the innocent over wrongdoers society would be more humanized?

The third argument is that we could never be totally sure that torturing a person would in fact result in us saving an innocent life. But it is the same as with shooting in self defense. In the ‘Death on the Rock’ story where it was believed that two IRA terrorists were about to blow up a car bomb and they were shot by undercover British agents, it was still to shoot. Decisions must be based on the best evidence at the time, otherwise we would never leave our houses – we might get a hit by a car on the way to work.

Having read Bagaric, and watched all the episodes of ‘24’ I think his arguments have a certain force. I think it is facile to simply brush torture away as if we lived in a perfect world; as if we were simply nice towards bad people they would be nice back to us. We live in a wicked world and nasty people have to be controlled. Sometimes we need to do things that are distasteful to us. Is any right or interest absolute? We limit free speech, prosecuting the person who shouts “Fire!” in a crowded theatre with limited egress. “Rights” must always yield to consequences. Lost lives hurt a lot more than bent ‘principles’. We must also take responsibility not just for the things that we do, but for the things that we could have done but didn’t and consequently failed to prevent. evil or injustice. We can’t just blame the perpetrator; that’s moral indifference.

I am sure Burke will retort that we had no hand in causing the situation and that we have no responsibility for fixing it.

Do we in the rich, first world countries owe any debt to the 13,000 a day dying of starvation in the third world? I can think of a myriad reasons why it is happening ranging from local greed, an indolent poor, falsely delivered aid, to false religion supporting 700 million cows when only 3 million cattle are used for milk or beef. Yet I still give to charity.

So don’t just have a knee-jerk reaction to torture. Think about the issues. Come to a reasoned answer. Call it ‘coercive questioning’ and imagine how you could save a life or the lives of three hundred passengers in a Boeing half way across the Atlantic.