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The More Effective Torture Is, the More Important It Is That It Should Be Banned

17/12/2014 09:47 GMT | Updated 15/02/2015 10:59 GMT

The question, as counsel love to say to witnesses wrestling with an unfair question, is a simple one:

If a nuclear time bomb is ticking away at an undisclosed central London location, is it morally permissible to torture somebody to discover its location so that it can be disarmed?

In real life the chances of any choice being as clear cut as the "ticking bomb" scenario are all but non-existent. The situation bears little more relationship to reality than a school debate about whether Stephen Hawking or Alan Bennett should be the first to be thrown out of the balloon.

Would we be sure that there really was a nuclear bomb?

Would we be sure that we had the right man?

Would we be sure that torture was the most effective way of extracting the information?

Nevertheless, if the dilemma is posed as starkly as a straight choice between water-boarding an individual, or a nuclear holocaust for millions, the answer to whether we should inflict torture is surely an unequivocal "yes". In such an hypothetical situation it would be absurd to scruple over the infliction of pain on an individual if the certain consequence of doing so was death to millions.

Does it follow then, that the law should allow interrogators, such as those employed by the CIA, or even MI6, to use torture?

It certainly does not: the law should be clear that torture is forbidden as much as murder or rape. The fact that in some barely credible scenario the threat or even use of rape or murder might persuade a bomber to reveal the whereabouts of a primed nuclear device does not mean that the law should ever authorise its agents to commit rape or murder. Exactly the same goes for torture.

The legal definition of torture under international law is set out in Article 1 of the United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment:

"... any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."

Under English law the definition is even clearer:

A public official or person acting in an official capacity, whatever his nationality, commits the offence of torture if in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties.

Torture is also a federal offence under Chapter 113 of the United States Code, defined in a similar way:

"... an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;"

For the avoidance of any doubt, the US legal definition includes "severe mental pain or suffering" caused by the "threat of imminent death," something that water-boarding (to take but one example) is patently designed to create.

Deciding whether a particular act is torture is, as former US Director of National Intelligence O'Connell has said: "pretty simple. It is excruciating and painful to the point of forcing someone to say something because of the pain."

The arguments against torture hardly need rehearsing: it is cruel to its victims and dehumanising to its perpetrators. A person capable of calmly, or enthusiastically, inflicting excruciating pain on a captive human being is a monster and a country using his services forfeits any claim to be civilised. In order to practise torture effectively it is necessary to have a whole cadre of trained assistants and experts: not just interrogators but psychologists, doctors, technicians and, presumably, simple muscle-men. Whether or not torture produces "results" these are overwhelming reasons for criminalising its use.

Some practices are so abhorrent that a careful cost - benefit analysis of efficacy is meaningless.

Hardly anybody, for example, would today argue that hanging, drawing and quartering (the appalling punishment for treason until the early nineteenth century) could ever be justified. Were the punishment still available it is conceivable that it might deter some would-be traitors; and it would no doubt be possible to construct a hypothetical situation in which the threat of being publicly disembowelled was capable of deterring a determined terrorist. Such a hypothetical possibility would not justify the resumption of the practice.

The history of crime and punishment demonstrates nothing so clearly as the perverted ingenuity of those who have devised ever more painful methods of torturing and killing prisoners: the rack, the iron boot and the thumbscrew; crucifixion, boiling alive, breaking on the wheel and so on. These things, at least in democratic countries, are now utterly taboo and have been so for at least two centuries. Very few people in the West argue that it would be legitimate, say, to crucify a suspect believed to know the whereabouts of a bomb. Some things are simply so far beyond the pale that no civilised country can possibly allow them without destroying everything that makes it civilised.

The Senate Committee found - contrary to the assertions of the CIA - that torture did not, in fact, produce any valuable intelligence. But if the CIA are correct and their torture worked, that still would not justify its use.

On the contrary, if torture worked, the need to criminalise it would be even more imperative than if it were ineffective because the temptation to use it would then be even greater. If torture did not work there would be no need to use it. It was largely because the CIA believed, or persuaded itself, that it did work that it became such a widespread practice.

Even those who support the actions of the CIA seem to accept that the "ticking bomb" hypothetical cannot be used to justify any barbarity. Almost nobody is prepared actually to defend "torture." Instead, apologists for the CIA use a disingenuous sleight of hand to suggest that what the Senate Committee and President Obama have called torture was actually no such thing. If it is not torture, then it is relatively easy to justify.

Melanie Phillips, for example, argues in the Times that some "limited forms of ill-treatment" can be justified, for example, to stop the detonation of a dirty bomb in Birmingham. Sleep deprivation, shackling and hooding seem to be acceptable to her; whereas "some techniques," she concedes, "are never justifiable: for example, pulling out fingernails, electric shocks or, as charged by the Senate report, freezing a prisoner to death."

Such techniques are "qualitatively different from sleep deprivation or threats designed to frighten detainees. The distinction lies in the gratuitous nature of the pain or suffering."

But practices such as pulling out fingernails and administering electric shocks need not be "gratuitous" at all if they are done for a purpose. What if the hooded and shackled prisoner still refuses to divulge the whereabouts of the dirty bomb after seven days without sleep? Ms Phillips does not explain why it would then be wrong to pull out his fingernails, to apply electric shocks to his genitals, or indeed to skin him alive, if that is what it takes to loosen his tongue.

Even Breitbart's controversialist columnist James Delingpole - who describes the Senate report as "blatantly partial and shoddy," and mocks the "politically correct squeamishness" that would "rather see a thousand of our own people die than that one terrorist suspect should be waterboarded," can't quite bring himself to defend torture. In fact he approvingly quotes former CIA director Michael Hayden, who wrote "I'm not here to defend torture ... Torture is always wrong."

"I have no intention of doing so either," wrote Delingpole. Again: why not? If he had the courage of his convictions he should be able to defend torture in a noble cause. If it is "politically-correct squeamishness" to object to water-boarding a terrorist suspect, why is it not also politically-correct squeamishness once water-boarding has failed, to object to torturing that same suspect on the rack, or fitting him with an iron boot into which boiling lead could be poured until he reveals his secrets?

The answer, of course, is that squeamishness - what other people might call common decency - is only a part of it. The reason that we ban torture is not just squeamishness but also that there is a well-justified taboo against it that is so strong that even its defenders can only justify its use by using intellectually dishonest language that avoids using the word "torture" at all. Hence Hayden talks about "enhanced techniques" and "tough" treatment, Phillips talks about "limited forms of ill-treatment," and Delingpole manages both to proclaim his own opposition to torture in principle, while simultaneously denouncing those who object to it in practice.

Yet, despite the CIA line - repeated by the likes of Phillips and Delingpole - that water-boarding, sleep-deprivation, and threats to torture relatives are no more than "ill-treatment," when other countries - Sri Lanka, Tunisia and Jordan, Pakistan, Turkey and Iran, for example - have used exactly the same methods the State Department has condemned them as "torture" without equivocation.

Once the operatives of the state begin to justify torture, then as we have seen, it becomes not a hypothetical debating issue but a regular and then almost a routine part of intelligence gathering. Once it is sanctioned by the state otherwise perfectly decent and reasonable people - people, indeed, like Phillips and Delingpole - are able to convince themselves that any number of cases falls into the exceptional category in which a little torture is justified, especially if it is then reclassified as "ill-treatment."

Where does this leave the hypothetical nuclear bomber? What if he was captured and really did know the whereabouts of a timed nuclear bomb in central London?

In such an unprecedented and almost unimaginable case which has never yet arisen, any method, including the most grotesque torture could theoretically be morally justified if the bomber refused to divulge the information in any other way. It is vanishingly unlikely to arise, but if it did the criminal law of America and Britain, and international humanitarian law all permit a person to rely, if prosecuted, upon a defence that they were using "reasonably necessary force" to protect others from imminent death. It does not "permit" torture any more than it "permits" murder or rape.

That, indeed, was the judgment of the Supreme Court of Israel in 1999 in its Judgement on the Interrogation Methods Employed by the General Security Service, a widely misunderstood case in which the Israeli Security Service ("Shin Bet") argued that this "necessity" defence permitted the use of painful physical treatment on terrorist suspects. Shin Bet's argument was rejected by the Court:

"The "necessity" defence does not constitute a source of authority, allowing ... investigators to make use of physical means during the course of interrogations. The reasoning ... is anchored in the nature of the "necessity" defence. This defence deals with deciding those cases involving an individual reacting to a given set of facts; It is an ad hoc endeavour, in reaction to a event. It is the result of an improvisation given the unpredictable character of the events. Thus, the very nature of the defence does not allow it to serve as the source of a general administrative power."

It may be that there are those who would regard the Israeli Supreme Court as a nest of namby-pamby, politically-correct lefties. Others, on the other hand, might consider that a country which has been under existential threat from its enemies since 1948, and which is not known for its squeamishness in defending itself, might be able to bring quite a useful perspective to the question. Whilst Israeli practice may not always accord with Israeli law, the law itself is crystal clear: just like murder or rape, torture is forbidden. It would be surprising if the law of the United States or England were to permit a greater freedom to torture than that of Israel; and it does not.

Hundreds, if not thousands of people appear to have been involved in systematic torture over a period of several years. There is strong prima facie evidence of the commission of appalling crimes that cry out for justice. If any of it can possibly be justified then the torturers and their accomplices should be invited to do so from the dock of a criminal court.

To characterise practices that any reasonable person, and the United States Government, would instantly recognise as torture as "limited ill-treatment;" or to suggest that anyone objecting to it now is acting out of "political correctness" is either self-deceiving or dishonest. Torture is torture, just as murder is murder. There are practically no circumstances in which either can be morally or legally justified and there are no circumstances in which they should be overlooked by prosecutors.

Not the least appalling consequence of the CIA torture policy is that cruelty and injustice will now more than ever be seen by our enemies as essential "western values," which will almost certainly lead to the recruitment of more people to aggressively anti-western causes. The fact that the Senate has investigated and exposed the scandal is at least a first step in reversing this effect. But it will take not just exposure but the prosecution and conviction of those responsible to ensure that anyone tempted to indulge in torture in the future is properly deterred.

This blog post first appeared on Barrister Blog, and can be read here