Torture & Terrorism

1. Torture & Terrorism Torture & Terrorism II II

2. Some Background • In December of 2005, the House voted into law the McCain Detainee Amendment, prohibiting inhumane treatment of prisoners (specifically torture). • After approving the bill, President Bush issued a “signing statement” -- an official document in which a president lays out his interpretation of a new law -- declaring that he will view the interrogation limits in the context of his broader powers to protect national security. • This would at least theoretically allow Bush to waive the restrictions.

3. Alan M. Dershowitz: “Should the Ticking Time Bomb Terrorist be Tortured?” Dershowitz’s Project • Dershowitz argues that policy regarding torture hangs on three values: the safety and security of the nation’s citizens; preservation of civil liberties and human rights; and open accountability and visibility in a democracy. • Dershowitz argues that the only way to protect all three values and yet allow for torture in cases such as the Ticking Time Bomb Terrorist (while avoiding a slippery slope) is to establish a way to distinguish these cases from more problematic cases. • To this end, Dershowitz proposes establishing “torture warrants”.

4. The Ticking Time Bomb Case Recall the Ticking Time Bomb case. • Virtually no one takes the position that the bomb must be allowed to explode. • However, the exceedingly rare TickingTime Bomb case has served as ajustification for a system of coerciveinterrogation. • “If the reason you permitnonlethal torture is basedon the ticking bomb case,why not limit it exclusivelyto that compelling butrare situation?” (433)

5. Torturing the Ticking Time Bomb Terrorist • Jeremy Bentham’s Utilitarian Position: There seems no reasonable argument to be made that one criminal should not be subjected to short-term, if intense, pain, if the result will be saving the life of one hundred innocents. • Certainly, then, for Bentham, the same principle would allow for (indeed, demand) the torture of the terrorist to save thousands in the Ticking Time Bomb case.

6. Torturing the Ticking Time Bomb Terrorist (cont’d) • Zacarias Moussaoui Case: Imagine in the weeks prior to Sept. 11, the government had discovered Moussaoui was involved in a large-scale terrorist plot, but without any further details. • Having interrogated him, offered him immunity from prosecution, and large rewards and a new identity, he still refuses to talk. • Threatening him, trying to trick him, even injecting him with truth serums are all to no avail. • With the threat now immanent, an FBI agent proposes the use of nonlethal torture (a sterilized needle inserted under the fingernails or a dental drill into an unanesthetized tooth). • A simple cost-benefit analysis provides a clear answer: a short session of even intense pain does not compare with the value of the lives of thousands.

7. Torturing the Ticking Time Bomb Terrorist (cont’d) • Experience has shown that if torture were now to be legitimated in the US—even for limited use in one extraordinary type of situation—this legitimation would provide a welcome justification for its more widespread use in other parts of the world. • Twining & Twining: “Even an out-and-out utilitarian can support an absolute prohibition against institionalised torture on the ground that no government in the world can be trusted not to abuse the power and to satisfy in practice the conditions he would impose.” (435) • Bentham is an act-utilitarian. • The argument against all uses of torture comes from rule-utilitarianism. • Act utilitarianism could even be used to justify terrorism—it has no inherent limiting principle.

8. Torturing the Ticking Time Bomb Terrorist (cont’d) • If act-utilitarianism justifies the torture of a known terrorist, it likewise justifies the torture of the terrorist’s mother or children to get him to give the information. • “Under a simple-minded quantitative case utilitarianism, anything goes as long as the number of people tortured or killed does not exceed the number that would be saved.” (435) • Unless we impose limits on the use of torture, we risk a serious slippery slope. • To avoid the slippery slope, we need a principled break, e.g., allowing for torture only in cases where convicted terrorists with knowledge of future terrorist acts were given immunity and still refused to provide the information. • There might still be moral objections, but they won’t be slippery-slope objections.

9. Torturing the Ticking Time Bomb Terrorist (cont’d) • Aesthetics: In our age, executioners have been replaced with paramedic technicians, making criminal executions more palatable. • The notion of torture still raises the image of brutality. • “All this tends to cover up the reality that death is forever while nonlethal pain is temporary. In our modern age death is underrated, while pain is overrated.” (436) • Anyone in his right mind would take a medically-administered lashing over a month in a typical state prison.

10. A System of Torture? • What approaches can a government take—on a policy level—to preclude the possibility of a slippery slope, yet allowing for torture in Ticking Time Bomb cases? • The question isn’t whether torture would be used in the Ticking Time Bomb case—it would—but whether this would be done openly, “pursuant to a previously established legal procedure, or whether it would be done secretly, in violation of existing law.” (437) • Several important values weigh on the issue: The safety and security of the nation’s citizens. Preservation of civil liberties and human rights. Open accountability and visibility in a democracy.

11. A System of Torture? (cont’d) • We do not want our leaders or soldiers to act in any way we deem wrong or illegal. • “No legal system operating under the rule of law should even tolerate an ‘off-the-books’ approach to necessity. Even the defense of necessity must be justified lawfully.” (438) • If it is necessary to torture in the Ticking Time Bomb case, then our laws need to accommodate it. The Trilemma: “If we do not torture, we compromise the security and safety of our citizens. If we tolerate torture, but keep it off the books and below the radar screen, we compromise principles of democratic accountability. If we create a legal structure for limiting and controlling torture, we compromise our principled opposition to torture in all circumstances and create a potentially dangerous and expandable situation.” (438)

12. A System of Torture? (cont’d) • We would not ask a fighter jet pilot to decide whether or not to shoot down a hijacked plane full of civilians. • Why should we leave it to a local policeman, FBI agent, or CIA operative to decide whether or not to torture in the Ticking Time Bomb case? • Decisions of this sort need to be made at the highest levels—by judges, the attorney general, or the president. • 16th and 17th-century England employed legal “torture warrants” to obtain information about plots against the state. • The information used was not considered evidentiary, but was used to obtain proof that would stand up in court. • Torture warrants became less necessary when the jury system was introduced, requiring less perfect evidence to obtain convictions.

13. A System of Torture? (cont’d) • Would there be less torture if it were done as a part of the legal system, or if it were done “off the books”? • “[A] formal, visible, accountable, and centralized system is somewhat easier to control than an ad hoc, off-the-books, and under-the-radar-screen nonsystem.” (440) • “At the most obvious level, a double check is always more protective than a single check.” (441) • If, as with arrest and search warrants, judges would require compelling evidence to issue a warrant, it seems requiring a judicial warrant would result in fewer cases of torture.

14. A System of Torture? (cont’d) • Dershowitz suggests requiring the following before torture is threatened: • Suspect offered immunity. • Suspect told that he was compelled to testify. • Suspect threatened with imprisonment if he refused to provide information. “Even if government officials decline to discuss such issues, academics have a duty to raise them and submit them to the marketplace of ideas. There may be danger in open discussions, but there is far greater danger in actions based on secret discussion, or no discussion at all.” (442)