ARPA: Torture: The slippery slope to surrender to terror

In twenty years of writing hundreds of letters to foreign governments suspected of human rights violations, I have had a few replies. My letters raised concerns about the fairness of trials, imprisonment or harassment of people expressing political opinions, maltreatment of prisoners and executions. Most replies have been conciliatory, begging understanding—‘the government is trying’, ‘culture change takes time’—but no government has attempted to justify torture. Perhaps no regime cares so little for its international reputation that it would defend the indefensible.

It is surprising, then, to find academics Mirko Bagaric and Julie Clarke suggesting that Australian authorities consider using torture (Australian Broadcasting Corporation 2005; Bagaric & Clarke 2005). Without elaborating, Bagaric and Clarke claim that prevailing moral orthodoxies cause ‘an enormous amount of suffering in the world’. They argue that condemning torture prefers the ‘rights of the wrongdoer’ to saving ‘an innocent person’, but do not explain what ‘innocent’ means in this context. Their main argument is that torture can be justified as a right to self defence, but they do not examine the similarities in detail. They urge consideration only in ‘limited circumstances’, but offer no objective criteria to establish when such circumstances exist. They note that the ‘floodgates are already open’, but do not specify in which regimes.

Reaction to the academics’ Herald article was confined largely to the Fairfax media. For several days, letters ran against the suggestion that use of torture should be considered. In Melbourne, The Age noted that students at Deakin University demonstrated against the Bagaric-Clarke position. Lack of clear comment from government or opposition seems to confirm a cross bencher’s observation that the major parties compete to be ‘tough on terror’ (Nettle 2004a).

In these circumstances, it is important to reaffirm why torture should be universally proscribed. Specifically, torture is ineffective, uncontrollable and unethical.

What is torture?

The United Nations Convention on Torture, arising from the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights, defines torture as ‘any act by which severe pain or suffering, whether physical or mental, is inflicted on a person for such purposes as obtaining from him or a third person, information or a confession’ (Office of the High Commissioner for Human Rights 2005). The definition covers punishment or intimidation by anyone acting in an official capacity. The UN Committee on Torture reports on progress and identifies breaches of the protocols. Complete elimination of torture is the aim.

Current context

Human rights advocates are alert and alarmed about developments in the post 9/11 ‘war on terror’. Some governments use the rhetoric of freedom while abusing prisoners in their custody. When caught out, such as over Abu Ghraib prison in Iraq, these governments have admitted shortcomings, and have not generally defended torture, but official responses have been equivocal. In the United States, prominent lawyer Alan Dershowitz suggested that torture should be legal (CBS 2002) and a memo from Attorney General Ashcroft to President Bush suggested that the Administration was divided on the issue (Allan & Priest 2004). Human Rights Watch (2005) has argued that less rigorous states have seen a ‘green light’ in US ambivalence.

According to Greens Senator Kerry Nettle (2004b) the Australian Government has not endorsed the optional protocols of the Convention on Torture. Parliamentarians have attacked the Government for failing to protest strongly the US treatment of prisoners in Iraq and Guantanamo Bay, especially where Australians were concerned (Brown & Ellison 2005; Roxon 2004; Roxon & Ruddock 2005; Rudd & Downer 2005). Censure was moved in the Senate against the Defence Minister for failing to provide guarantees that no Australian personnel had been involved in maltreatment (Faulkner 2004) and critics were dissatisfied when the Government insisted on distinguishing between ‘interrogation and interview’ (Howard 2005). Some observers have charged the government with ‘outsourcing’ torture by leaving Australian citizens in foreign custody, a charge made against the United States also for its ‘rendition’ of detainees to third countries (Klein 2005).

Some states have created new terrorism related capital offences (NSW Council for Civil Liberties 2005). Prime Minister Howard and successive Opposition Leaders have made ambivalent statements on capital punishment, which has much in common with torture. While insisting they personally oppose the death penalty, they are content to see it applied by the USA or Indonesia. Human rights advocates argue that Federal Police co-operation with authorities in countries that use the death penalty, as in the case of the ‘Bali 9’ facing trial in Indonesia, is tantamount to outsourcing executions (NSW Council for Civil Liberties 2005).

Civil libertarians have criticised the Government’s anti-terror bills, which strengthen the vaguely defined powers of the Australian Security Intelligence Organisation. In a critical and comprehensive account, Jenny Hocking (2004, p. 11) warns that the bills would ‘expand Executive power, imperil the rule of law, offend established political and civil rights, compromise the separation of powers, and weaken established judicial powers’. George Williams (2005) has suggested that when originally introduced these bills showed the ‘weaknesses of a political and legal system in which human rights do not have a firm foothold’. He warns that with the government gaining control of the Senate, similarly threatening bills could reappear.

Writing about the decision to invade Iraq, a decision that would cost lives, Raimond Gaita (2003, p. 103) notes that we often accept that it is better for one person to die than for many. However, each of the many is just one, and none ‘can decently hope that another person should be murdered so that her life can be spared’. The same reasoning applies to use of torture in the ‘war against terror’. Referring to the capture and likely mistreatment of a suspect, Gaita (2004, p. 55) felt ‘explicitly invited to be an accomplice to evil’. As all citizens are implicated in the decisions of their governments, those who oppose torture on principle must restate the arguments against its use.

Three Arguments against torture

Contrary to recent claims, torture is a bad option for governments because it does not work, it cannot be controlled and it is unethical.

It does not work

The argument supporting torture assumes that a prisoner has information which might, for example, save innocent lives, of hostages. Therefore, every means should be considered to extract that information. There are, however, problems with the logic of this argument. If the interrogator knows (read mostly ‘believes’, or ‘claims for convenience’) that the prisoner has knowledge that the torturer wants, then who decides what information is enough to stop the torture process? Why will the prisoner not lie? If the torturer is dissatisfied because the answer comes too easily, then will he (yes, torturing seems to be an exclusively male activity) suspect trickery? Will he value only those confessions extracted under extreme duress? And if we claim the right to choose situations that warrant use of torture, must we allow the same right to everyone, including our enemies?

It cannot be controlled

Bagaric and Clarke (2005) think that ‘social commentators’ are responsible for short sighted, harmful policies, including a general prohibition on torture. They imply that, while other regimes cannot control torture and render it humane, Australian security forces could. This position is consistent with some recent actions of the Australian government, which seems to believe that an excellent record in human rights makes Australia immune to criticism. This has been the government’s attitude towards policy on asylum seekers (see for example Human Rights and Equal Opportunity Commission 2005), rejecting criticism and condemning international observers should they come from states with imperfect human rights records. Government spokespersons use euphemisms such as ‘detention centres’ where critics see ‘concentration camps’, and claim the right to define ‘asylum seeker’ without reference to international covenants. The government also ignored international opinion and international law in deciding to join the invasion of Iraq. If these developments represent an attitude of national superiority, then there is a danger that Australia will become known as hypocritical.

Most torture advocates are naïve about what happens elsewhere. They accept three myths about the controllability of torture: that it is conducted only as a necessary last resort, that torturers are really ethically motivated and reluctant, and that torture has achieved good ends. If these assumptions remain unquestioned in Australia, a country that has been relatively isolated from the intense political pressures which have caused outbreaks of political violence in many states, then they are likely to be adopted elsewhere by those seeking to defend their use of torture.

The idea that torture is used as a necessary last resort lacks credibility. Torture is not just a more intense form of interrogation. It is qualitatively distinct. There is no natural sequence between questioning someone and proceeding to do that person physical harm. ‘Last’ has no meaning here. Rather, this argument is used by those who want to commit human rights abuses for political reasons, and who want civilised arguments for self-justification.

Torture is used as a first rather than last resort. Torturers readily contemplate going beyond the minimal, supposedly medically supervised physical stresses envisaged by these latest advocates. The logic of the torturer is that victims have their limits. If they did not, then torturers could not justify torture on the grounds that it is designed to produce ‘results’. This doctrine implies that if the victim does not comply with the interrogator’s wishes, the victim’s limit has not been reached. Therefore, it becomes necessary to escalate the pain. This is not just desirable, or justifiable, but becomes logically necessary. To stop before the limit is reached would mean that the earlier, low level suffering had been inflicted for no good reason at all. What ‘good’ torturer would do that? So, just as torture does not come in a sequence from other interrogation, nor is there ever an end point.

To argue that torture exists and so we should regulate it is to give those who torture an undeserved ethical licence. It is certainly desirable that torture be subject to the ‘radar screen of accountability’ (Bagaric & Clarke 2005). A similar argument has been used by advocates of decriminalisation of social problems such as prostitution and heroin addiction, but these problems are perennial ones. States use torture and they could stop at any time. Theoretical advocates put words into the mouths of torturers who do not bother trying to establish the morality of their actions. They do not need to because they are in positions of power. Torturers admit dehumanising their victims so that they might treat them as having no dignity. They gain morose satisfaction from wielding such power and accounts by victims support these contentions (see for example Ortiz 1998; Serrano 2005). Perhaps the most honest torturers say simply that they do not care, or that this is the way the system works: were the shoe on the other foot, then they believe that they would be victims themselves.

The state uses torture, just as the state uses the death penalty. Only rogue states kill their citizens. Only rogue states torture them. Rather than use torture as a last resort and as the only means to a necessary end, torturers inflict pain because torture is convenient. They might purport to care for the fate of hostages but these claims are mocked by their obvious disdain for the standards of humane treatment of their own hostages. The torturer’s motivation is neither pure, nor simple.

Even if it were possible to establish theoretically that torture could be controlled, there is no certainty about who could be found to supervise. For a doctor to oversee pain for political ends is to mock the Hippocratic Oath. The role of the medical profession in torture is not to prevent suffering, nor minimise it, but to prolong life and facilitate and extend the torturer’s ability to inflict pain. Complicity in torture is expressly rejected by the Code of Ethics of the Australian Medical Association (2004).

It is unethical

The case that torture might be ethical depends partly on its being effective and controllable. There are serious reasons to doubt that it is, or can be, either, but even if it could be shown that torture is both effective and controllable, there remain grounds for rejecting torture as morally unjustifiable.

Torture is a form of state terrorism that mirrors anti-state terrorism. Torturers want to terrorise those who might be arrested. Torture is a means of social control. This helps explain the leaking of some images from Guantanamo Bay but the suppression of others (Klein 2005). However, responding to terror with terror is not justifiable. The advocates of torture miss this point because they have shifted their focus from the actions to the actors, from terrorism to terrorists. They assume that the terrorists are always the others, as though ‘their’ torture is abominable, but ours is not. This false assumption is based on the claim that their aims are heinous whereas ours are worthy.

Gaita (2003, p. 87) dismisses the idea that the ends can justify the means, noting that ‘the good we achieve by unjust means is polluted by those means’. Morally, it would be better to die an innocent victim of terrorism than to engage in torture. To succumb to the temptation to torture would mean that the anti-state terrorists have achieved their aims. Advocating torture is not arguing for victory over terrorism but for surrender to it. The response of London Lord Mayor Ken Livingstone after the London bombings was perceptive. Livingstone spoke of defiance by ordinary Londoners, noting that ‘no matter how many’ the terrorists kill, there would be no surrender. Refusing to be provoked is a form of pacifism against terrorism. Paradoxically, presidents and prime ministers assert that terrorists will not change the way we live, but when they plan to retaliate with deadly force and to lower human rights safeguards, they champion negative and fundamental changes. These escalate fear and provide the retrospective justification that supporters of terrorists celebrate. Torture, like extra-judicial executions, must be counter productive.

In other contexts, the ends-means argument takes two forms. Proponents of the military ‘liberation’ of Iraq either claim that the warfare was morally right or admit that the military means, while necessary, were morally wrong. The same distinction can be applied when considering the moral status of torture. No sane person holds that torture or war is intrinsically good. So, their advocates usually claim that these are the only means of achieving certain desirable ends. But there is no conclusive evidence that torture or war have ever produced ‘good’ outcomes. War supporters claim that military action caused some apparently good circumstances that have arisen in Iraq since the toppling of Saddam Hussein, but they are reluctant to acknowledge the negative results measured in deaths and anarchy (Roberts et al. 2004; Iraq Body Count 2005). They mistake correlation for causation. It is just as arguable that progress has occurred in spite of the invasion.

Even in cases in which outcomes seem mostly good, it is impossible to prove that similar results could not have been achieved some other way. Carefully selected ends do not render intrinsically evil actions good. Indeed, the appeal to retrospectivity makes the proposition absurd. If we had to wait for outcomes before knowing whether actions were right or wrong, then any human rights abuse would be justified on an experimental basis.

Conclusions

Evil means always produce evil outcomes. It is naive to imagine that we can deal in evil and promise to stop later and apologise to our victims. Anyone genuinely interested in the survival of western civilisation, should accept death as a hostage rather than hoping for rescue based on torture and so embed this hypocrisy in the cultural ethos. And if we advocate particular actions we must be prepared to take these actions ourselves and not contract them out. Anyone who advocates torture must be prepared to do the physical harm themselves. When we know and feel that something is so wrong and repugnant that we would not engage in it because we fear severe damage to our self respect, then we should not engage others to do these things vicariously. If torturing another human being seems repugnant, then this is probably because our consciences are still capable of discernment.

As Ben Saul (2005) argues, ‘terrorism does not demand that we torture to defend ourselves. To the contrary, the threat of terrorism is a reminder of the importance of protecting human dignity’. Torture destroys the dignity of the victim and the perpetrator. Resorting to torture destroys what it claims to save. Hocking (2004, p. xii) warns that ‘the lawlessness of terrorism is being met with the lawlessness of counter-terrorism’. Contemplating use of torture does not prevent terrorism but ensures its victory.

References

Bagaric, M. & Clarke, J. 2005, ‘The “yes” case can outweigh the “no”’, Sydney Morning Herald, 17 May.

Brown, Senator B. & Ellison, Senator C. 2005, Questions on Notice, Military Detention: Australian Citizens, Question no. 7, Hansard, Senate, Parliament of Australia, 8 February, p. 171 [Online], Available: http://www.aph.gov.au/hansard/senate/dailys/ds080205.pdf [2005, Aug 5].

Gaita, R. 2003, ‘A last resort’, in Why the War was Wrong, Text Publishing, Melbourne.

Gaita, R. 2004, Breach of Trust: Truth, Morality and Politics, Quarterly Essay 16, Black Inc., Melbourne.

Hocking, J. 2004, Terror Laws: ASIO, Counter-terrorism and the Threat to Democracy, University of New South Wales Press, Sydney.

Howard, J. 2005, Prime Minister, Answer, Question Without Notice: Iraq, Hansard, House of Representatives, Parliament of Australia, 17 February, p. 77 [Online], Available: http://www.aph.gov.au/hansard/reps/dailys/dr170205.pdf [2005, Aug 5].

Human Rights and Equal Opportunity Commission 2005, Information Concerning Australian and the United Nations International Convention on the Elimination of all Forms of Racial Discrimination [Online], Available: http://www.humanrights.gov.au/cerd/report.html [2005, Jul 25].

Iraq Body Count 2005, ‘Civilians reported killed by military intervention in Iraq’, 25 July [Online], Available: http://www.iraqbodycount.net/ [2005, Jul 25].

Nettle, Senator K. 2004a, Second Reading Speech, Anti-Terrorism Bill no. 2, 2004, Hansard, Senate, Parliament of Australia, 12 August, p. 26473 [Online], Available: http://www.aph.gov.au/hansard/senate/dailys/ds120804.pdf [2005, Aug 5].

Office of the High Commissioner for Human Rights 2005, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [Online], Available: http://www.unhchr.ch/html/menu3/b/h_cat39.htm [2005, Jul 12].

Roberts, L., Lafta R., Garfield R., Khudhairi J., & Burnham, G. 2004, ‘Mortality before and after the 2003 invasion of Iraq: cluster sample survey’, The Lancet, vol. 364, no. 9448, 20 November, first published 2004, 29 October [Online], Available: http:/www.thelancet.com [2005, Aug 5].

Roxon, N. 2004, Grievance Debate, Military Detention: Australian Citizens, Hansard, House of Representatives, Parliament of Australia, 6 December, p. 58 [Online], Available: http://www.aph.gov.au/hansard/reps/dailys/dr061204.pdf [2005, Aug 5].

Roxon, N. & Ruddock, P. 2005, Questions in Writing, Military Detention: Australian Citizens, Question no. 407, Hansard, House of Representatives, Parliament of Australia, 9 February, p. 295, [Online], Available: http://www.aph.gov.au/hansard/reps/dailys/dr090205.pdf [2005, Aug 5].

Serrano, R. 2005, ‘Guard was “primary torturer”, prisoner says’, Los Angeles Times, January 12 [Online], Available: http://www.truthout.org/docs_05/011305I.shtml [2005, Aug 4].

Tony Smith is a regular contributor to the Australian Review of Public Affairs.

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