Could Torture Ever be ‘Right’?

The recent appointment of Gina Haspel as CIA Director is a sign of a growing official approval for the use of torture, despite its illegality under international and US domestic law. It is widely known that she previously helped cover up US government torture.

FRONTLINE reported recently that ‘Haspel ran one of the first black sites – secret CIA prisons where the agency held perceived high-level terrorism suspects. She also participated in the controversial decision to destroy evidence of interrogation sessions in which detainees were subjected to waterboarding.’

President Trump repeatedly praised torture techniques, too, announcing during his campaign that, ‘Torture works. Ok, folks? You know, I have these guys – ‘torture doesn’t work!’ – believe me, it works.’

This idea that ‘torture works’ is often taken as moral justification for its use. Furthermore, while explicit moral argument in favour of torture is unusual, it is implicit in the characterisation of ‘terrorists’ as ‘baddies’. Even if an act of torture is regarded as unsavoury, it may still be deemed worthwhile if lives can be saved by using it. These arguments, however, are deeply flawed, as I will explain.

In the absence of an internationally-agreed definition of terrorism I use this one adopted by the UN Security Council in 2004:

… Criminal acts, including against civilians, committed with the intent to cause death or serious bodily harm, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act, which constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism.
(UN Security Council Res. 1566, 2004, para. 3)

“Terrorists”, therefore, are defined as individuals who commit criminal offences, such as those detailed above, for the purpose of creating “a state of terror in the general republic”.

Terrorism is also a crime under specific domestic codes, including the UK’s Terrorism Act 2000. Specific offences include: ‘Membership of proscribed organizations, fund-raising for terrorism, directing a terrorist organization, and incitement of terrorism overseas.’ A person can be described as a terrorist, and prosecuted for criminal acts under domestic and international law as terrorist, for a wide range of deeds, ranging from simply being a member of a terrorist organization, to hijacking a plane.

Let us assume for the purpose of this piece that any terrorists who is about to be tortured has already been found guilty of one of the criminal offences detailed above, rather than being merely suspected. So I will be talking about people who are guilty of offences that contribute to terrorism.

My focus is on the state as a moral actor, rather than individuals working for the state; though there are interesting dilemmas in terms of individual responsibility.

In 1984 the UN defined torture as:

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, 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.(United Nations Torture Convention of 1984)

This definition does not include, however, ‘pain or suffering arising only from, inherent in or incidental to lawful sanctions’ as The Telegraph put it in 2005, such as the death penalty.

We may assume that Fyodor Dostoyevsky‘s description of the plight of a person sentenced to death by the state in The Idiot is biographical, considering his own experience of narrowly avoiding a Czarist firing squad, allegedly for taking part in anti-governmental activities. By comparison with the fate of a person assailed and killed by brigands he says: ‘the whole terrible agony lies in the fact that you will most certainly not escape, and there is no greater agony than that’. He asks: ‘Who says that human nature is capable of bearing this without madness?’

This effect of lawful actions is important when it comes to deciding what form of torture, if any, could be permissible, as it implies that exceptions can be made, and in general there is ambiguity around what is generally understood as torture, and that which is actually illegal.

As exposed by the water-boarding controversy, there are certain actions that are widely believed to constitute torture, but which can be defended as legal on technical grounds. In other words, if some actions generally considered torturous, are permitted, then there is the possibility that some actions are ‘torture’, without being illegal (domestically and internationally).

That leaves the potential for certain torture techniques to be, not only legal, but seen as ‘right’ as in accordance with the law. It is precisely this loop-hole and the ambiguity in understanding of what is legal, and what is ‘right’, which opens the doors to the possibility of legally-sanctioned ‘torture warrants’.

Which, if any, torture, could be considered ‘right’, then? Is something always ‘right’ because it is ‘legal’? Is it ever ‘right’ to legalise actions, such as those in self-defence, that are otherwise wrong? Could torture be one of those exceptions?

Without delving too deeply into moral philosophy, we can take two approaches. The first, that of moral realism, identifies an action as inherently and objectively wrong. The second approach is utilitarian: which advocates the course that benefits the most people, maximizing general happiness and minimizing total pain.

Utilitarianism is a form of Consequentialism, which broadly states that an action’s ‘rightness’ depends on the consequences of that action. We need not focus the discussion too much on ‘increasing utility’ and happiness; instead, I think it makes sense to consider the subject of torture pragmatically, as well as consider the wider consequences of using torture. Consequentialism is the stance often used to justify the use of torture, so let us consider whether the end ever justifies the means.

It is difficult to find a justification of torture adopting moral realism, although there are manifestations of moral realism – Christian just law theory for example – which leave room for retaliation, and might be used to defend torture that is punitive. Our main discussion of torture, however, concerns that which is used to interrogate terrorists to extract information, because it is that use which tends to be defended.

When might the ends justify the means to torture terrorists? Three significant arguments are adduced: (a) The Ticking Time Bomb Argument; (b) Secret Torture; and (c) the Machiavellian Approach. I will argue that none of these approaches are persuasive from a practical, Consequentialist perspective, and explain why torture is ineffective, morally wrong, and should never be legalised. I will finish by arguing that the institutionalisation of ‘legal torture’ is a problem in itself, and reiterate the danger inherent in legalising actions that are widely regarded as torture, even if a state’s lawyers can find ways to avoid official acknowledgement.

I will argue that a zero tolerance approach to torture is the only way to avoid not only grave human rights abuses, but also the undermining of the Rule of Law. ‘Borderline’ or ‘legal’ torture methods, such as water-boarding, as well as the ‘torture warrants’ proposed by Alan Dershowitz are never the ‘right’ option either, precisely because any legalisation risks terrible consequences that far outweigh any positive outcomes.

(a) The Ticking Time Bomb

Many torture-sympathisers are fond of the ‘Ticking Time Bomb’ argument, which is a Philosophical thought experiment designed to test the limits of a moral proposition. It defies the ethical intuition that it is morally wrong to ever torture somebody, by constructing a situation in which there appears to be moral justification for using it. It is said that if someone doesn’t torture Terrorist X a certain number of civilians will die, that Terrorist X is guilty, and definitely knows where the bomb is, and that this is the only avenue of investigation open to the police.

I would argue, first of all, that if this is really the only line of enquiry then the authorities have already failed, because even if they do torture Terrorist X, they are unlikely to stop the bomb from going off. Terrorists are often trained to resist torture, and those with an Islamic Fundamentalist background may actually seek martyrdom. Neither death, however slow and painful, nor the threat of it, or just the pain, is likely to persuade them to divulge any useful information.

If the bomb is ‘about to go off’ then Terrorist X will know that, and will therefore be aware that he will not have to endure the interrogation for very long (should he be a terrorist averse to pain, rather than one trying to embrace it, if anyone truly does that). Another practical point in response to this scenario is that under such pressure Terrorist X may simply lie about the bomb’s whereabouts, to stop the torture, which would be detrimental to any counter-terrorist operation, as such information would be a waste of time.

There are other serious difficulties with the scenario. It is not meant to be ‘practical’, precisely because it is a thought experiment. It is what Bob Brecher calls ‘a fantasy’, in the sense that rarely, if ever, could such a scenario occur in real life. Basing legislation and even moral theory on a fantasy, is simply irresponsible. It is one thing for moral philosophers to test their intuitions; quite another for policy-makers and lawyers to base legislation on it.

Thus torture is unlikely to help stop the bomb, so the consequences of using torture here are ineffective, of no benefit to society, the counter-terror operation (whose time may be wasted), or, obviously, Terrorist X. Moreover, even in the extremely unlikely scenario that Terrorist X speaks, and the bomb doesn’t go off, the wider repercussions of using torture are so dire that even then, it is not right to use it.

Firstly, it undermines the authority and integrity of international law. If a state finds a loophole in it that permits torture, then principles of individual human rights are clearly breached. Further, should a state use torture without legal sanction, and gets away with it, then international law loses its authority, in that its laws are broken without any consequences, rendering the international legal system weak and ineffectual, in actuality and in reputation.

A state’s reputation is also ruined if it permits torture, especially where it is known and admired for being a liberal democracy. It will be seen as hypocritical, and as acting in a way that undermines its own values. The use of torture by the United States at Guantanamo Bay and Abu Ghraib prison, for example, has lowered many people’s estimation of the United States, which is now widely regarded as hypocritical and aggressive, rather than an inspiration to democrats and republicans worldwide.

Reputational damage is problematic, furthermore, as it sets a bad example for other states, who may then use torture using the argument that, ‘If [America] can use torture, then why not us?’ Within a state, also, the legislation of even some ‘borderline’ kinds of torture may lead to a wider tolerance and use of worse torture, and might lead to it being used not just against terrorist, but other criminals and alleged criminals.

In addition to these harmful consequences of even the limited use of torture, it may also prove to be not only ineffective for counter-terrorism (and even if it does ‘work’, the evidence collected under duress would be inadmissible in court), but also counter-productive. Torturing terrorists is likely to lead to retaliation and further terrorism, rather than diminish it.

(b) Secret Torture

One response to the negative consequences of the use of torture on terrorists outlined above, is that if it is hidden from public view, most of these repercussions could be mitigated. It is true that if it is kept under wraps, then the state in question could avoid undermining international law, superficially at least.

If international law does not allow, or is not used to justify torture, then at least its integrity is kept intact, and in public its authority too. In keeping torture absolutely secret, furthermore, it avoids acquiring a bad reputation, which may also prevent the slippery slope of other states drawing legitimacy from the torturous state. Torture may also, if kept secret, not lead to retaliation.

So if torture has few negative consequences, as outlined above, through being covered up, then perhaps it could be ‘right’ on some level? The first problem with this solution, however, is that keeping torture secret is almost impossible. Many states in recent history – the US and UK to name a couple – have failed in their efforts to do so, leading to all the negative consequences outlined already. Moreover, even if the secret is kept, it would be the height of hypocrisy for a liberal democracy to behave in this way, and completely undermines the Rule of Law.

Another problem with this ‘solution’ is that even if kept secret, torture not only has damaging effects on the victim, but also on the torturer. Torture corrupts the perpetrator, and anyone who allows it. To allow, even to obligate, a person to torture another for the sake of his state, is destructive. It means that that person will possibly suffer horrendous guilt, Post-Traumatic Stress Disorder in some cases, having accepted a level of personal responsibility.

When torture is carried out in secret, there will always be people who know that it has happened, who have been involved at an individual level, and are aware that a state has permitted actions entirely contrary to its supposed values. It is highly unlikely, anyway, that something as grave as torture would remain a secret forever, even if the state in question ‘gets away with it’ in the immediate sense of not being punished for violating international law.

(c) Machiavellian Approach

A cynical approach to the problem of torture and the modern state, is simply to dispense with the liberal democratic ideals that prevent (at least in theory) certain states from using it. Indeed torture could be the ‘right’ option for a state unconcerned by its reputation, either domestically or internationally. Its government may not mind undermining international legal structures, and have no problem with setting a bad example to other states, provoking retaliation, and losing a virtuous reputation.

If a state is utterly Machiavellian, and wishes to instill fear in its enemies then the use of torture could seem attractive, and ‘right’ in the distorted sense that torture might lead to the acquisition of power and wealth.

Even if a state adopts this attitude, however, it is nevertheless in breach of international law, which has consequences, whether that state respects it or not. Although international legal structures are often criticised for being slow and ineffectual, they are still a force to be reckoned with. Twinned with the reputational damage, (whether the state in question cares about its reputation or not), it is unlikely that a ruthlessly Machiavellian, torture-happy state would escape sanctions from other countries and international legal structures.

Even the most secretive, Macchiavellian state would likely run into trouble at some point. If the entire world became cynical and Machiavellian, then perhaps one such state could avoid punishment – as Nazi Germany sought for instance – but in such a situation internal opposition would surely emerge eventually, and certainly result in retaliation in some shape. Endemic violence, whether within state borders or otherwise, is never a favourable outcome, and certainly never ‘right’.

Torturing a terrorist is never the ‘right’ thing to do, even in a hypothetical scenario of someone knowing where a ticking time bomb is located; even if it is kept under wraps, even if a state’s lawyers find a loophole in international law, and even if a state is utterly Machiavellian in its disregard for human rights, international law, and reputational damage.

It is never right, even on a practical level, because the negative consequences outweigh whatever benefits there may seem to be. It risks retaliation, international opprobrium and possibly intervention (through the application of international law or otherwise); it damages state employees as well as those tortured; and imperils the integrity of its founding ideals (assuming the state is not Macchiavellian): these risks are simply not worth any short-term benefits one could possibly gain through torture.

For a liberal democracy to permit the torture of terrorists, in the hope of gaining more power over them, ultimately reduces that state to the level of the terrorist, if not becoming a ‘terrorist’ in the conventional sense, then ‘terrorist’ in it wider meaning. There is too much of a family resemblance between he who terrorizes and he who tortures to take seriously the idea that someone who tortures a terrorist is really any better than him, really any more ‘right’. Torture lowers the perpetrator to the level of the terrrorist, embracing her own moral demise.

Christiana Spens is a writer and academic, currently based in Scotland. Having read Philosophy at Cambridge, she then completed a Masters and PhD in Terrorism and Political Violence at the University of St. Andrews. She has written several books, most recently Shooting Hipsters: Rethinking Dissent in the Age of PR (Repeater Books, 2016) and The Portrayal and Punishment of Terrorists in Western Media  (forthcoming from Palgrave Macmillan, 2019). She writes regularly for Prospect, Studio Internationaland White Noise, on art, politics and literature.