Torture? Never.
Liberty and Justice? Always.
by Marcy Strauss, JD, Loyola Law School
Torture should never be an option. Torture is always abhorrent, requiring an absolute ban on the practice with no exceptions. Consider the quintessential example used for allowing torture: a 24-like hypothetical referred to as the ticking bomb scenario. Federal agents have in custody a man who claims to be a member of Al Qaeda and says that he placed a nuclear device set to detonate within 48 hours. Information obtained by the agents seemingly validates these claims. Should the agents use any means necessary, including torture, to locate the bomb? That is, should they engage in activities like water boarding, electrical prods to sodomize or needles under the fingertips—all measures that cause excruciating pain but, supposedly, cause no long-lasting harm?
The answer: Never. Why? I’ll make four arguments: (1) Torture is absolutely prohibited under international law. (2) Torture cannot be confined to the ticking bomb scenario. (3) Torture is rarely effective. (4) Torture causes incalculable, long-term harm to our country.
First, torture is universally and absolutely forbidden under international law. Numerous treaties and conventions absolutely ban the use of torture. Perhaps most prominent is the aptly named United Nations Convention Against Torture, ratified by 130 countries – including the United States. A similar prohibition is contained in Article 5 of the Universal Declaration of Human Rights and Articles 7 and 10 of the International Covenant on Civil and Political Rights. International law recognizes no exceptional circumstances to this absolute ban.
Therefore, my second contention is that the ban on torture should be absolute and without exception because torture cannot be confined to exceptional circumstances like the ticking bomb scenario, used by those who “advocate” torture. The ticking bomb scenario virtually never occurs in the real world.
Sanctioning torture in exceptional circumstances will lead to large numbers of innocent people subjected to torture in non-exceptional circumstances. Torture legalized is torture utilized. Abu Ghraib, Guantanamo Bay and Bagram are all examples of this phenomenon. After 9/11, the Bush Administration was, at best, morally ambivalent toward torture, and, at worst, condoned it.
My third contention is that torture does not work in eliciting useful and reliable information. Why? There are a number of possible reasons. Those tortured may have no valuable information. For example, in Abu Ghraib, estimates were that 90 percent of those detained were not part of any insurgency. Even those who are part of the terrorist scheme may have no worthy information to convey. As the events of 9/11 demonstrate, terrorist cells often compartmentalize plans, so rarely will anyone but those at the top know the full scope of the plans.
Even if the detained person is part of the scheme and knows the plans, many of the most dedicated, hardcore terrorists are trained to resist torture tactics. Or, even if the person submits, the plans could change if a top operative is captured. Plus, people who are tortured may well talk, but will not necessarily tell the truth. Take for example, the capture of Ibn al-Shaykh al-Libi in 2001. He was allegedly subjected to water boarding and forced to stand naked in a cold cell while being doused with freezing water. The good news—he talked. The bad news—it wasn’t true. He told interrogators that Iraq was selling weapons of mass destruction, information Secretary of State Collin Powell relied on in his United Nations talk about Iraq.
My fourth and final contention is that torture leads to unacceptable social costs. While not capable of precise calibration, no one denies that the concrete harms the United States suffered internationally from abuses at Abu Ghraib cannot be underestimated. Even former Deputy Chief of Staff Karl Rove conceded that it will take a generation to repair the United States’ image in the Middle East. Others predict torture inevitably costs more lives than it saves by transforming neutrals and supporters into enemies, and turning enemies into jihadists.
For these reasons, I believe that the United States must not simply pay lip service to an absolute position against torture. We must never forget that the greatest threat from terrorism is the danger that it will provoke us to overreact and employ authoritarian measures that destroy civil liberties and constitutional rights. I believe, as “The Boston Globe” columnist Jeff Jacoby does, that “the way to win the war is not to adopt our enemies’ evil methods. […] We are in a war of the decent against the indecent. We dare not cross the line that separates the two.” If, in the course of our struggle against terrorism, we sacrifice our most cherished constitutional principles—liberty and justice— on the altar of national security, any victory is illusory.