Is It Morally Permissible to Torture a Suspected Terrorist - Research Paper Example

Under what conditions, if any, is it morally permissible to torture a suspected terrorist? The re-emergence of torture has become a visible fact as forms of policy and state acts legitimising torture have become the highly controversial component of the present idea of just war against the so-called forces of darkness and destruction. Even much of the literature on torture borrows the ‘statist’ concept of torture for ensuring security. The studies, which consider torture as high forms of human rights violations, are rare. Torture has come into being the most prominent form of human rights violation through the organised violence caused by both democratic and non-democratic governments from around the world, following the incidents of 9/11. There is an equilibrium of political, social and economic factors that are overwhelmed by recent developments in the nature of capitalism, which substantiate the contemporary use of torture as both legal and illegal means to achieving desired goals of ruling regimes. When the news of torture and abuse of prisoners at Guantanamo Bay and Abu Gharib Jail in Iraq came out, it became starting point of detailed discussions on the ethics of interrogating with bodily harm and mental threats. Legally questioning the inhuman treatment of suspects and the imprisoned has become an important aspect of the debate on torture. There is a long and deeply entrenched debate on the matter that whether torture is permissible under certain conditions or not. The debate is of course multidisciplinary as it draws arguments from various branches human knowledge ranging from criminology to political philosophy. The emergence of ‘global risk society’ in twenty first century has been the locus around which such debates on torture are popping up. The underlying spirit of the pro-torture arguments is the fact that the threats to security in twenty first century are decentred and uncertain. This is what Donald Rumsfeld, the former United States Secretary of Defence, meant in his famous assertion that “Our challenge in the new century is a difficult one: to defend the nation against the unknown, the uncertain, the unseen, and the unexpected. It denotes a complete postmodernisation of strategic warfare in which enemies of diametrically contrasting nature fight against each other with uneven powers and resources. Curiously, terrorism and anti-terrorism in our times aim at the one and same thing: the destruction of the enemy more than victory over him. The widening debates over the permissibility of torture for greater common good cannot be examined by detaching from the state of affairs from which the possibility of such debates arises. Influential theorists such as Hardt and Negri (2004) have argued that the present world is characterised by a civil war of global reach. The global civil war is the primordial resistance to what they understand as the materialisation of ‘Empire’ in which total subsumption of life has become a reality. Thus, the resistance to the empire is a fight to save life from being conquered by the global war machine of the new transnational capitalist empire. Therefore, the fight to save life from being organised under the same logic of immaterial capitalist organization is inevitably and increasingly dealt with bodily torture and organised and directed mental harm. It is important to note that the debate on torture did not come into existence in a vacuum. It is not an attempt to answer theoretical questions, which are inspired from hypothetical models from philosophers’ gambles. On the other hand, as a matter of fact, the state of affairs concretely necessitates the debate on torture for the purpose of creating an adequate policy framework to deal with the complexities of new forms of violence and crimes that increasingly spreading throughout the world. The critical question is that how the constitutional democracies could answer the challenge of respecting human rights while effectively countering and mitigating the effects of sporadic, primordial violence. The terrorist attack on the World Trade Center, which is popularly known as the 9/11 attack constitute a paradigm shift in the international politics and redefines the praxis of humanitarian intervention, crimes against humanity, just war, protection of human rights and terrorism. Most importantly, the notion of applicability, permissibility, feasibility and desirability of torture as a method for ensuring wider security gained momentum not only in public parlance but also in sophisticated philosophical exercises. It does or should not connote that torture as a practice or as a theoretical category was not in picture until the occurrence of 9/11. Undeniably, the debates on torture gained prominence following the attacks on the world trade centre and because of the measures taken by the U.S administration and and other governments in the world against possible terrorist attacks on innocent civilians. One of the major problems to deal with torture is the difficulty to have an acceptable definition of torture. Since the very definition of torture itself could be in favour or against applying torture or an anticipation for its application. Elsewhere, Slavoj Zizek has argued that the very discussion on the discussion of the desirability of torture is in complicit with the efforts to unleash torture as a juridical practice. However, Lukes (2005) identifies legitimate purpose as the defining criterion for torture. On the contrary, the United Nations Convention define torture on the basis of the harm caused to the sufferer. ‘Dirty hands’ is usually the term used for denoting the wretchedness of at the positions of governing vis-à-vis the so-called innocent civilians. Walzer (1973) asserts that “the notion of dirty hands derives from an effort to refuse "absolutism" without denying the reality of the moral dilemma”. Torture, from this position, is just seen as one another expression of the dirty hands of the rulers. Nevertheless, it is clearly a reductionism to argue that the question of torture can be defined in terms of the moral wickedness of the politicians. Dershowitz (2002) points out the incidents in Italy and Israel in which the priority has given to ensuring the protection of human rights than achieving instant gains through torture. What Dershowitz (ibid) sees as the essence of democracy is that “ we always have a choice , and we have appropriate institutional mechanisms for making choices, even-perhaps especially-choices among evils”. Thus, there have been institutional mechanisms and lawful constraints to the extent the state could go potential threats against the population. However, what exactly is being increasingly challenged is these constraining and restraining measures in the name of enhanced and sophisticated measures. The protection of human rights is no more the central tenet of policy making. Draconian security measures replace the notion of justice and humanitarian concerns in fighting against the perceived threats to the society. Constitutional democracies are in a battle against their own constitutional provisions, which prevent them from resorting into heinous methods of torture against the perceived enemies or combatants. It is not difficult to choose between rational solutions as it is elaborated by rational decision theory, however, when it is necessary to choose from among the evils, making a choice based on rationality becomes a problematic effort, if not irrelevant (Dershowitz, 2002). The idea of torture invokes the same kind of a dilemma with increased consequences since it is a matter of dealing with the lives of concrete human beings. Here, the larger question is of the possible and righteous basis for reaching into conclusion on the desirability of torture. Firstly, it is not difficult to see that rationality cannot be made into the basis for such a choice for the simple reason that rational solutions are not available in this case. While exploring alternate basis for legitimising torture, morality is the only option that could withstand. It has been argued that forces of destruction must be prevented and crippled down through any means possible because they are inherently morally inferior and represent ulterior causes. Not only in the colonial times but also as part of the policies of imperialism, liberal democracies have indeed practiced torture on subject populations. Lukes (2005) enumerates the heinous acts of the French in Algeria, the Israelis, the British in Kenya and in Northern Ireland and the United States in Latin America and currently in various places” to prove the point that liberal democracies practicing torture is nothing new as a phenomenon although it could be argues that where torture existed in the exteriority of liberal democracies. If torture is not admitted, it does not mean that torture is not practiced, especially in the case of liberal democracies.Lukes (2005) have best captured the ugliness of torture; “It has become the most covert of state activities, so that when photographs of it are published, it becomes all-important to prove that it was unauthorized private enterprise. So torture is doubly vicious, combining the vice of concealment and the vice of violence – specifically violence against the defenceless. The first is anti-democratic, preventing us from reaching a collective judgement; the second is anti-liberal, constituting, if anything does, a violation of the dignity of a person. An aspect of the latter is, it would seem, its inherent unfairness”. The notion of the innocence of civilians under the threat of possible terrorist attacks is also constitute a strong argument in favour of permitting torture on prospective attackers or the ones who are known to possess credible information on such possible attacks. On the other hand, the terrorist violence in twenty first century has become infamous for applying indiscriminate violence. Here, for a terrorist, application of indiscriminate violence on civilians or non-combatants is not a coincidence but a strategic necessity that could enable him to always temporarily achieve success on his mighty enemies. In other words, civilian are not merely happened-to-be victims of terrorist violence but a consciously selected targeted group for convenience and ease of successful operations. Torture has also been identified as one of the best options among many evils by theoists of various hues “since killing is worse than torture, and killing is sometimes permitted, especially in war, we ought sometimes to permit torture, especially when the situation consists of a protracted, if undeclared, war between a government and its enemies” (Shue, 1978). This point of view also portrays torture as a means of preventing the killing of innocent civilians by terrorist forces. Therefore, morally speaking, torture could be justified as it is for the greater common good. It is somewhat a utilitarian position although presented in moralistic terms. There are attempts from round the corners to prove that torture is the final resort by arguing that “the problem of torture arises where it appears to be the only available means of averting some terrible outcome. One could say that the problem of torture is just a particular case of what is sometimes called the problem of dirty hands: that is, a species of moral dilemma, where, in doing what appears to be the right or best thing in the circumstances, we cannot avoid doing wrong” (Lukes, 2005). Torture, here, is rightly or wrongly presented as the lost choice and its application in such cases is an absolute necessity or an inevitable outcome for dealing with the illegitimate combatants. Agamben’s (1998) delineation of the concept ‘Homo Sacer’ is particularly helpful in understanding torture as a structural or systemic necessity of liberal democracies to counter any threats to the established order as the same with Carl Schmitt’s concept of ‘state of exception’. In Agamben’s analysis, homo sacer is an individual who does not have a concrete juridical subjectivity to lead the free course of his/her life on the earth. In other words, a homo sacer always exists in law as an exile, a pariah or a refugee. It constitutes a schism or a chasm between one’s political and biological lives. Therefore, the homo sacer is a legally dead entity while biologically remain alive. Hence, homo sacer is a perfect choice for torture since whatever could be done with a legal zombie. This legal objectification of human subject through the twisting of legality is the underlying principle behind the legal justifications of torture. Therefore, Agamben concludes that “the so-called sacred and inalienable rights of man prove to be completely unprotected at the very moment it is no longer possible to characterise them as rights of the citizens of a state”. To exemplify, Agamben highlights the case of Jews who were sent to concentration camps for torture and murder after being caste off from their citizenship. At present, the prisoners in the Guantanamo Bay are the perfect examples of homo sacer and it is not accidental that they are being terribly tortured even without trial. For Schmitt, the state of exception is the normalcy of any form of government , for them, every kind of violence is right. The sovereignty of state is its ability declare a state of emergency wherein what has been seen as its reason of existence could be terminated for the purpose enabling it to pursue its desired course of actions. It means that torture is equally a form of rule or governance (Agamben, 1998). The dictatorial element that is necessary for actualising torture or pure violence is what the defining chaaceristic any de facto government. A government sans the powers of torture is merely a de jure entity. Thus, Schmitt’s view underlines the fact that the need for torture is not arising from any conditions from without but from the very material existence of the government. In brief, the state of exception is necessary for creating homo sacer who could be legally eliminated. Hence, governments presuppose and attempt to transform the juridical system into a death machine. The feasibility of torture has also been thoroughly questioned. Dershowitz (2002) argues that “it is impossible to avoid the difficult moral dilemma of choosing among evils by denying the empirical reality that torture sometimes works, even if it does not always work. No technique of crime prevention always works”. Simply speaking, when we presupposes that one has sufficient information about prospective terrorist attacks before torturing him/her for extracting information, there is no guarantee that our presupposing would be logical or right. In addition, even resorting into torture cannot guarantee that torture would successfully bring out what is needed. Once again, there is no guarantee that what has been extracted as information on possible terrorist attacks could be usefully applied for the prevention of the attack. Many a nations have legal provisions against torture which could not be altered under any circumstances. For instances, in the case of the United States of America, “the fifth amendment prohibits compelled self-incrimination, which means that statements elicited by means of torture may not be introduced into evidence against the defendant who has been tortured” (Dershowitz, 2002). Such provisions could render torture meaningless even if it is useful in extracting information. In addition, there are treaties and agreement which also prevent the member countries from resorting to the means of torture. According to Dershowitz (ibid), “the Geneva Convention Against Torture prohibits all forms of torture and provides for no exceptions. It defines torture so broadly as to include many techniques that are routinely used around the world, including in Western democracies”. It is to say that the existing international arrangements itself are very much against sanctioning torture so that resorting to torture would be an act of breaching the international law and practical overcoming the present world order, which could have heavy consequences in the long term future. Shue (1978) too is of the view that “torture is indeed contrary to every relevant international law, in- cluding the laws of war. No other practice except slavery is so uni- versally and unanimously condemned in law and human convention”. There have been many analogies made by both the pros and cons of torture between types of combat killing and types of torture. By drawing such a comparison between killing and tortue, Shue (1978) shows the “insights into an important respect in which much torture is morally worse” like in the case of “just-combat killing” to refer to killing done in accord with all relevant requirements for the conduct of warfare”. Here, an arrested person too is wrongly watched as a combatant in action which cannot be legally justified. Even there are talks about inflicting punitive transfer on combatants who have no respect to the dignity and rights of their victims. There has been constant and systematic rationalisation of torture which favours new interrogational techniques. Such techniques are supported by instigated fear on the general public by means of propaganda and the idea of “lesser evil” is used to create the false consciousness that torture could prevent higher evils. Importantly, the torturers are not accountable to the public and there is no special mechanism to bring them under the rule of law as they are placed in vantage points in terms of law enforcement. To quote Shue (1978), “an act of torture ought to remain illegal so that anyone who sincerely believes such an act to be the least available evil is placed in the position of needing to justify his or her act morally in order to defend himself or herself legally. The torturer should be in roughly the same position as someone who commits civil disobedience.” Torturing itself is a terrorising activity so that torturing a suspected terrorist would amount to let the law function within the framework of terrorist’s ideology. International treaties such as the International Covenant on Civil and Political Rights, the African Charter on Human and Peoples’ Rights, Universal Declaration on Human Rights, and the European Convention on for the Protection of Human Rights and Fundamental Freedoms are made to ensure the complete prohibition of torture under any circumstances. More than hundred prominent countries have ratified United Nations Convention against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment. It makes even the any discussion to make torture legitimate itself an act of going against the breaching the existing law. The ticking bomb scenario has been widely noted as a justification for legitimising torture. However, it forgets the fact that things are not merely theoretical when they actually occur. The legality of extraordinary rendition, interception, and detention of illegal combatants without trial need not and cannot be enforced from the point of view of human rights. A terrorist might be a stateless subject but s/he is still a human being, therefore, inalienably covered by the provisions of human rights protection. It is this basic human identity of a terrorist is discarded while making arguments in favour of torture. Exceptions cannot be allowed to the prevention of torture since it is core human rights issue. The uncertainty of bringing best consequences through torture itself is a sufficient reason against making torture legitimate and legal. It is through behavioural scientific research new paradigm of torture has been developed. Public complicity towards such researches is an act of indirectly engaging with torture. The United States administration has consistently denied the allegation of torturing prisons even after concrete evidence on the subject bought out. It means that torture would remain effective only if it is kept secret. Ultimately, the news of torture shows us that there is no way to decide the limits of torture. If we are to resort to torture, how we would determine the point in which we have to stop torturing or how much torture could be inflicted on a suspected terrorist. After all, there could be multiple ways other than torturing to extract information from a suspected terrorist. For Sussman (2005), moral philosophy is what deals with the question of torture; it “involves degrees of pain and fear that are often said to be utterly indescribable; indeed, these experiences are sometimes said to destroy in their victims the very hope of any sort of communication or shared experience whatsoever”. However, torture is something that always eludes definitions. Even it is difficult to differentiate torture from related acts such as coercion, forceful deprivation and systematic manipulation. What is peculiar to torture is, in the words of Sussman (2005), “the intentional infliction of extreme physical pain or psychological distress on a person, for such ends as inducing the betrayal of some cause or intimate, intimidating actual or potential opponents, or as an exercise of dominance or sadism simply for its own sake”. Torture is something inhumane as it violates the dignity of being a human being. Torture in its positive sense is closely related to and attached with two problematic ideas; utility of torture and legitimacy of torture. Utility and legitimacy are problematic because they can only be defined relatively and relationally. There is no approved standard to measure them; they are often seen from the side of the ones who define it. Torture involves a special type of wrong as it uses qualitatively different type of violence and , therefore, remains “more morally offensive than other ways of inflicting great physical or psychological harm” (Sussman, 2005). Furthermore, he argues that torture is wrong because it “forces its victim into the position of colluding against himself through his own affects and emotions, so that he experiences himself as simultaneously powerless and yet actively complicit in his own violation”. Through torture, one is dehumanised by the agency of oneself. It is an act of forced self-betrayal akin to rape. Interrogational torture is the prevalent form torture and also it would be used widely against the ones who are seen to have knowledge about possible threats. In the delineation of Sussman (2005), interrogational torture is characterised by a “protracted process of inflicting or threatening pain in a context of helplessness and dependence, so as to make its victim provide information, confessions, denunciations, and the like”. The highest problem with legalising torture is best captured in the assertion that “ if an agent tortures, that is “an incident”, but if the court authorize it, it becomes a precedent” (Dershowitz, 2002). A precedent would ultimately become the law of the future. Torture cannot be made accountable within the framework of liberal democratic rule, therefore legalisation of torture would automatically amount to the superseding of liberal democracy. Otherwise, it is replacing the liberal content of democracy and making it pervasive. Conclusion The literature on torture has been divided into the pros and cons of torture. What is surprising is that both the sides on the debate on torture rely heavily on their own self-defined notions of morality to validate their claims. The practice of torture is usually defined in narrow terms without looking at the nature of modern state and its general practices of governance. The mechanisms of institutional power have a prominent role in the making and unmaking of the torture. In reality, the question of the moral permissibility of torture is little of a moral question. On the contrary, it is entwined with larger economic, political, social and cultural processes. The penal system that is the concentration of the punitive powers of the state at the macro level and the punitive desire of the citizens of a country at the micro level is a tool for making the bodies of prisoners more and more docile and disciplined. In this way, it is possible to see that torture of prisoner is originating from a certain kind of ritualism of modernity. It is to make human beings useful objects of the governing rule of the day. Torture clearly contains elements authoritarianism and it is always better to stick with complete prohibition of torture, otherwise, it would be an easy road to political absolutism. The fist of tormenting officers cannot resolve the questions of liberty. To fear, there could be a possible trickling down of torture once it is legally enforced from high profile terrorists to political activists with contending views. Secrecy is inherent in torture. The sanctioning of torture would be a declaration against transparency and accountability. Torture could give birth to an administrative aristocracy would see themselves as standing above the law. Finally, one has to take account of the brutalisation happen with the torturer who torments a suspected terrorist without mercy and it social consequences. References Agamben, G. (1998), Homo Sacer: Sovereign Power and Bare Life, Trans. Heller-Roazen, D . Stanford, CA: Stanford University Press.  Dershowitz, A. (2002). Why Terrorism Works. New Haven, Conn.: Yale University Press.ch.4. Hardt, M. and Negri, A. (2004). Multitude: War and Democracy in the Age of Empire. New York. Penguin. Lukes, S. (2005) Liberal Democratic Torture, British Journal of Political Science 36, pp.1-16 Shue, H. (1978). Torture. Philosophy and Public Affairs 7: 124-143. Sussman, D. (2005) ‘What’s Wrong with Torture?’, Philosophy and Public Affairs 3. 3.pp.1-33. Walzer, M. (1973) ‘Political Action: The Problem of Dirty Hands’, Philosophy and Public Affairs 2. pp. 60-80 Read More