Considering the alarming increase in tolerance for torture in the U.S., I thought it might be interesting to revisit Alan Dershowitz's call for torture warrants to be used in the case of a ticking bomb. What follows is a paper I wrote for my ethics class, refuting Dershowitz's assessment that the use of torture warrants would result in minimizing the use of torture.
I confess to being an abolitionist about torture, but that is a very difficult argument to make to those true believers that think torture works. This is my first philosophy paper and my first diary, so please, be kind.
Many people would agree that torture is an immoral act, but might not object to torturing a terrorist in a "ticking bomb" scenario. That is, a case where investigators know that a terrorist suspect has information relating to the imminent destruction of a large number of innocent people and where torturing that suspect would be successful in getting the information necessary to save innocent lives. According to the American Civil Liberties Union, "results of an internal Justice Department investigation released May 20, 2008 reveal that officials at the highest level of government – including the White House - received reports on the abuse of prisoners in U.S. military custody overseas as early as 2002" (aclu.org). So, contrary to denials by government officials, the United States does practice torture. Alan Dershowitz argues on consequentialist grounds that rather than continue to hypocritically allow torture while simultaneously claiming not to practice it, the United States should regulate when and how torture is to be administered through the use of what he calls, "torture warrants", in order to end or minimize the use of torture. However, Dershowitz’s argument doesn’t prove that the consequences of allowing torture in a ticking bomb scenario are at least as good those of any other option and rule-utilitarian reasoning would support enforcing laws that ban torture rather than creating rules that govern the use of torture.
I will attack Dershowitz’s argument for the use of torture warrants first on act-utilitarian grounds, but will begin by agreeing with him on three points. First, and most importantly, we agree that torture should be ended. Second, we agree that torture is happening today. And third, we agree that information obtained by means of torture would not be admissible in a court of law. However, that is where our agreement ends.
The ticking bomb scenario, taken on its face, seems quite compelling. Looking at it critically however, it begins to appear implausible. Given the sophistication of modern intelligence gathering, it’s unlikely investigators would know a terrorist had information that could help them keep a bomb from going off without knowing where and when it would explode. Dershowitz admits it would be an "extraordinarily rare situation" (259), while I would argue that the likelihood of this scenario ever occurring is so slight that it is not worth serious consideration. Indeed, a former senior military interrogator who uses the pseudonym Ray Bennett says, "In my many years of interrogation, I haven’t met an interrogator who has encountered this type of situation" (explore.georgetown.edu). I will not attack this straw man however; instead I will give Dershowitz the benefit of the doubt, allowing this implausible construct for the sake of argument.
Although he is opposed to torture "as a normative matter" (266) Dershowitz nonetheless seeks to codify the use of torture in the case of a ticking bomb through the use of torture warrants. This pro tanto approach to rules against torture appears to stem from his conviction that torture would certainly be used in a ticking bomb scenario and that information gained from torture would be effective in saving innocent lives. Since I agree that torture is currently practiced and, absent change in the culture of our law-enforcement and intelligence agencies, would likely be practiced in a ticking bomb scenario, I won’t argue that point. Whether effective information would be obtained from torture, on the other hand, is open to debate.
Information can certainly be obtained by the use of torture, but it isn’t likely to be reliable. A 2006 Georgetown University seminar that included retired military interrogators and research psychologists determined, "Torture does not yield reliable information and is actually counterproductive in intelligence interrogations" (explore.georgetown.edu). Former FBI agent Ali Soufan said of his interrogation of Abu Zubaydah, that he had elicited good information, including the identity of "9/11 mastermind" Kahlid Sheikh Mohammad before the CIA took over, but that as soon as the CIA applied "reverse-engineered SERE tactics," Zubaydah stopped talking (escholarship.org). Simply put, torture is not the best way, or even necessarily, the fastest way to get reliable information. Darius Rejali reports in the Washington Post that during World War II, the Japanese considered torture "the clumsiest possible method of gathering intelligence" (washingtonpost.com).
Those who would approve of torture in a ticking bomb scenario, with or without Dershowitz’s torture warrants, believe that under torture, a terrorist would give information that would allow the authorities to find and dismantle the ticking bomb before it went off, saving hundreds of innocent lives. In other words, the best possible consequences would result from torturing the terrorist. Since the terrorist suspect would have information that the torturer doesn’t, namely when the bomb will go off, the terrorist would have a reasonable expectation about how long he will be tortured. Assuming he has been trained to resist torture, he will stall by giving false information, which will have to be checked out, buying him a respite from torture and increasing his chances of holding out against more torture. This cycle of torture, false information, checking out information, torture, false information, etc, could plausibly continue until the bomb went off, killing hundreds of innocent people. In that case, the consequences of doing nothing would be better than the consequences of torturing the terrorist, since on top of the hundreds of deaths caused by the bomb, resources would have been wasted torturing the terrorist and checking out false leads. The main argument in favor of using torture in a ticking bomb scenario is that it would be the only way to get the information needed to save innocent lives, considering the case of Abu Zubaydah, who gave his interrogator information, but stopped talking when tortured, it seems likely that torture would not in fact be a faster way to elicit reliable information from a terrorist suspect.
Dershowitz’s next faulty assumption is that forcing investigators to obtain permission to torture through the courts would create transparency, openness and accountability for this rare use of torture (257). When thinking about how torture warrants would be issued and by whom, it may be helpful to consider the courts created by the Foreign Intelligence Surveillance Act (FISA). Because most information relating to wiretapping under this act is classified, the court’s hearings and findings are kept secret (aclu.org). It can be assumed that like FISA applications, torture warrant requests would contain classified information, thus necessitating a court like the FISA court, which would meet secretly to conduct its hearings and deliberations. Rather than creating transparency, openness and public accountability, it is probable that torture courts would merely continue to hide the extent to which the United States practices torture. According to annual FISA reports, of 11,339 FISA applications presented from 2002 to 2007, only nine were rejected and the annual number of FISA applications presented since 9/11 has more than doubled (epic.org). Torture courts would likely be modeled on FISA courts, so, since FISA courts rarely reject applications, and the number of FISA applications have continued to increase, it’s likely that rather than minimizing torture, as Dershowitz suggests, requiring warrants would increase the amount of torture practiced over time.
In light of the likely similarities between the FISA court and potential torture courts, reports suggesting that FISA has been abused are pertinent to this discussion. A recent Justice Department review of the National Security Agency found that the agency had gone beyond legal limits (topics.nytimes.com) and may have eavesdropped on innocent United States citizens. It is plausible to think that any agency charged with practicing torture might go beyond legal limits as well. It may well be that establishing a legal framework for torture via warrants obtained through a secret court will cause an increase in the amount of torture practiced and result in innocent people being tortured because of abuses by the agencies charged with executing torture warrants.
In defending his advocacy of torture warrants Dershowitz worries about the "individual member of the security services in the position of having to guess how a court would ultimately resolve his case" and thinks that requiring a judge to "dirty their hands by authorizing torture warrants" would be fairer to the investigator, as they would not "have to place their liberty at risk by guessing how a court might ultimately decide" (263). Since "every act of torture is a crime under international law" (amnesty.usa.org), Dershowitz’s approach would arguably make a criminal of the judge who issues the warrant. Again, issuing torture warrants, even in a ticking bomb scenario would have worse consequences than doing nothing. In this case, if a torture warrant were issued and torture carried out, two people will have committed criminal acts, rather than just one. Indeed, if a country like Spain, which has recently brought charges against members of the Bush administration for violations of international law, decided to prosecute, government officials who had approved the policy of allowing torture warrants might be at risk as well. Dershowitz might advocate that international law be changed to allow the use of torture warrants, but since 145 countries have ratified the United Nations Convention Against Torture and there are no exceptional circumstances that would allow torture under the Convention (amnestyusa.org), this is not likely to occur.
Derschowitz’s argument relies heavily on the impartiality of the judges who would issue torture warrants. We value our judges for their neutrality and even-temper. Our entire system of justice depends upon it and it would be especially important that judges empowered to issue torture warrants be impartial, neutral and even-tempered. Imagine that a court were established in Washington D.C. for the purpose of issuing torture warrants, and that a warrant application was brought before the court alleging that a small bomb, a suitcase nuke perhaps, was going to be detonated at a public school in Washington D.C. sometime within the next twenty four to forty eight hours. Imagine also that the evidence presented in the application was not quite strong enough to justify issuing a warrant. It is possible that a judge might be impartial enough and devoted enough to the law to deny issuing the warrant, based upon a lack of compelling evidence. Now imagine that the judge’s nine-year old granddaughter lives in Washington D.C. and attends public school there. How impartial would the judge be then? Wouldn’t the judge naturally be more inclined to ignore the lack of evidence and issue the warrant? The consequences of inaction might be the death of hundreds of innocent people, including the judge’s nine-year old granddaughter, while the consequences of issuing the warrant would merely be pain inflicted on a suspected terrorist. In such a case, it wouldn’t be unreasonable to expect that many judges would make a subjective decision rather than an impartial one. Thus, Dershowitz’s argument that a judge would ipso facto be better equipped to decide whether to torture or not fails.
Dershowitz’s argument requires that we believe judges will not only be impartial, but infallible, as well. To illustrate my point, it may be helpful to consider capital punishment, another situation in which an act that many people think is, under normal circumstances, immoral is legitimized by the courts and carried out by the state. In order for someone to be sent to death row, they must first be charged with a heinous crime by police and prosecutors. This charge must be based upon evidence gathered legally. A jury of their peers overseen by a judge must then convict them. The law requires not only that a licensed practitioner of the law competently defend them, but also that the judge and jury consider separately whether the specific crime of which they have been convicted warrants the taking of their life. Because the death penalty is so serious and final a step, numerous appeals are required before the death sentence may be carried out. Yet, according to Amnesty International, more than 130 wrongly convicted people have been released from death rows in the United States since 1973. Even with all of the built in safeguards, innocent people in the United States are being sent to death row, and it now appears that at least one innocent man, Cameron Todd Willingham, may have been put to death by the state of Texas.
In light of the apparent flaws in the legal system, Dershowitz’s argument that a mere judicial review of evidence presented by investigators in a warrant application is sufficient to regulate torture is seriously flawed. With the use of torture warrants, an innocent person could plausibly be sentenced to endure unspeakable acts based solely on evidence collected by investigators and submitted to a judge. If the torture court were set up like the FISA court, as I have suggested, the suspect’s interests would not be represented, nor their rights protected. Here the consequences of issuing torture warrants might again be worse than doing nothing. Of the over 6,000 people who have been sentenced to death in the U.S. since 1977 (nytimes.com), more than 130 were innocent and wrongly convicted even though they were represented by legal counsel in a case decided by a jury of their peers. Over time, how many innocent people, without representation, might be sentenced to torture by a single investigator and a judge?
What then would happen to that suspect after the torture? Dershowitz and I agree that any information obtained by means of torture would not be admissible in a court of law. If the suspect were guilty of planting the bomb, and torture worked to obtain information allowing investigators to defuse the bomb and save hundreds of innocent lives, nothing the suspect said could legally be used against them. They might be tried based on the information that investigators had gathered before torture was used, likely resulting in a relatively shorter period of incarceration than if evidence against them had been obtained by means other than torture. A more likely scenario might be that they would be held indefinitely without a trial or conviction, as inmates at Guantanamo are currently being held. Imagine that the investigators just plain made a mistake (a much more likely and common scenario than that of the ticking bomb) and picked up the wrong person, perhaps someone with a name similar to an actual terrorist. An innocent person might then be tortured and held indefinitely, with the explicit approval of the United States government.
Although I have argued that torture would not necessarily be efficacious in a ticking bomb scenario and that torture warrants would not necessarily be apt to minimize the use of torture, some might feel that the use of torture in a ticking bomb scenario would still be justified by preventing the deaths of innocent people. Turning now to rule-utilitarian reasoning, I will argue that enforcing the law against torture, which is part of "customary international law...binding on all states, whether or not they have ratified any of the human rights treaties" (amnestyusa.org) will yield better consequences, if generally followed, than a rule creating torture courts to issue torture warrants.
According to Matthew Alexander, a former senior military interrogator, "our policy of torture and abuse has cost us American lives" (nationalinterest.org). He asserts that most of the suicide and roadside bombings that have been so deadly to U.S. forces in Iraq were carried out by fighters from outside that country and that "the number one reason foreign fighters gave for coming to Iraq was anger at the torture and abuses of Abu Ghraib and Guantanamo" (escholarship.org). Continuing to torture, whether we do it hypocritically while denying it, or rarely and with the use of warrants, will only continue to inflame hatred and recruit more terrorists. It will put the lives of more United States forces and more innocent civilians at greater risk than if we didn’t torture at all, as more terrorists will be recruited to carry out more operations against us at home and abroad.
Suppose we followed Dershowitz’s advice and allowed torture, only via the use of warrants, and only in a ticking bomb scenario. Imagine that torture then worked to save innocent lives. What then, might be the outcome? Considering the overwhelming weight of world opinion against the use of torture, especially in the West, the great harm done to our international standing and national security might very well outweigh any good done by saving innocent lives.
Imagine that torture always worked. If torture courts were like FISA courts, and if we allowed torture only in rare and specific cases and international opinion shifted to approve of torture in those rare cases, the hearings and deliberations would still be classified and of necessity conducted in secret. Would anyone then be safe from torture? Some innocent people, perhaps even very many innocent people, might then be sentenced to torture. Indeed over years of allowing torture through the use of warrants, it is conceivable that more innocent people might be harmed than those that were saved by the use of torture in the first place.
Since the use of torture either with or without warrants may cause more harm by recruiting more terrorists to carry out more attacks, damaging the United States’ international standing and national security, and since very many innocent people might be tortured if the use of torture were codified by warrants, the best consequences will only be realized by abiding by our own Constitutional rule against cruel and unusual punishment, and the prohibition of torture in the Geneva Conventions’ and the United Nations’ Convention against Torture.
I do not accept Dershowitz’s assertion that because the United States has tortured in the past and is currently torturing, it is inevitable that we will continue to torture. If the United States does, as Dershowitz suggests, stop being hypocritical about its torture practices and implements torture warrants, we will still be torturing. I have demonstrated that the consequences of allowing torture through the use of warrants may be worse than the consequences of doing nothing, even in a ticking bomb scenario, that the ticking bomb itself may be a false construct, and that in general, a rule prohibiting torture would have better consequences than the alternatives. Only by enforcing current rules outlawing torture can the bad consequences of torture be avoided.
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