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A terrorist group has planted a small nuclear device with a timing mechanism in London and it is about to go off. If it does it will kill thousands and make a large part of the city uninhabitable for decades. One of the terrorists has been captured by the police, and if he can be made to disclose the location of the device then the police can probably disarm it and thereby save the lives of thousands. The police know the terrorist in question. They know he has orchestrated terrorist attacks, albeit non-nuclear ones, in the past. Moreover, on the basis of intercepted mobile phone calls and e-mails the police know that this attack is under way in some location in London and that he is the leader of the group. Unfortunately, the terrorist is refusing to talk and time is slipping away. However, the police know that there is a reasonable chance that he will talk, if tortured. Moreover, all their other sources of information have dried up. Furthermore, there is no other way to avoid catastrophe; evacuation of the city, for example, cannot be undertaken in the limited time available. Torture is not normally used by the police, and indeed it is unlawful to use it.
Alan Dershowitz • “But what if [torture] were limited to the rare "ticking bomb" case--the situation in which a captured terrorist who knows of an imminent large-scale threat refuses to disclose it?Would torturing one guilty terrorist to prevent the deaths of a thousand innocent civilians shock the conscience of all decent people?”
Alan Dershowitz “To prove that it would not, consider a situation in which a kidnapped child had been buried in a box with two hours of oxygen. The kidnapper refuses to disclose its location. Should we not consider torture in that situation?”
Alan Dershowitz “I have no doubt that if an actual ticking bomb situation were to arise, our law enforcement authorities would torture. The real debate is whether such torture should take place outside of our legal system or within it. The answer to this seems clear: If we are to have torture, it should be authorized by the law.”
Consequentialist Ethics • Greatest good for the greatest number • Would allow torture • IFit producesmore good than harm • Harm: extreme pain, psychological damage • Good: save thousands of lives
Ethics of Principle • Some acts are always wrong • Consequences are irrelevant • Torture violates human dignity • Torture treats a person as an object • Would not allow torture
Is Torture Legal? Joseph Margulies “Although no single provision of the U.S. Constitution expressly prohibits torture as a means to extract information, secure a confession, punish for an act committed, intimidate or coerce, or for any reason based on discrimination, there is no question that torture violates rights established by the Bill of Rights.
Is Torture Legal? Joseph Margulies “The U.S. courts have located constitutional protections against interrogations under torture in the Fourth Amendment's right to be free of unreasonable search or seizure (which encompasses the right not be abused by the police), the Fifth Amendment's right against self-incrimination (which encompasses the right to remain silent during interrogations), the Fifth and the Fourteenth Amendments' guarantees of due process (ensuring fundamental fairness in criminal justice system), and the Eighth Amendment's right to be free of cruel or unusual punishment.
Is Torture Legal? Joseph Margulies In numerous cases, the U.S. Supreme Court has condemned the use of force amounting to torture or other forms of ill treatment during interrogations, including such practices as whipping, slapping, depriving a victim of food, water, or sleep, keeping him naked or in a small cell for prolonged periods, holding a gun to his head, or threatening him with mob violence. Torture would also violate state constitutions, whose provisions generally parallel the protections set forth in the federal Bill of Rights.”
Is Torture Legal? • Geneva Conventions prohibit all forms of “coercive interrogation.” • Convention III (Relative to the Treatment of Prisoners of War) Article 3, prohibits “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.”
Is Torture Legal? • Article 13 states that POWs must be treated “humanely” and cannot be subject to “acts of violence or intimidation”. Most explicitly, Article 17, prohibits interrogational torture: • “No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.”
US Army Field Manual • FM 34-52 specifically constrains techniques to those allowed under the Geneva Conventions.
US Army Field Manual • “Experience indicates that the use of prohibited techniques is not necessary to gain the cooperation of interrogation sources. Use of torture and other illegal methods is a poor technique that yields unreliable results, may damage subsequent collection efforts, and can induce the source to say what he things the interrogator wants to hear.”
US Army Field Manual “the direct approach, always the fist to be used,…is the most effective. Statistics show in WWII, it was 90 percent effective. In Vietnam and Operations Urgent Fury, Just Cause, and Desert Story, it was 95 percent effective.”
US Army Field Manual The FM suggests other techniques for the small minority for whom the direct approach doesn’t work. (31) Mostly these are “psychological techniques” which aim to expose “Weaknesses, which if recognized by the interrogators can be exploited” during an interrogation. Cooperation is more likely if the prisoner has recently undergone a traumatic experience. The prisoner is more likely to cooperate if he thinks that resistance is futile, if he has no control over himself.
US Army Field Manual The test of whether or not the interrogation technique is legal, ask: if this was used against you by the enemy, would you believe it constitutes torture?
Bush Doctrine • War on Terror is different • Terrorists don’t wear uniforms • Old rules don’t apply • “Detainees” aren’t protected under law
Bush Doctrine • US Sup Court Disagreed • Rasul v. Bush (2004) • Hamdi v. Rumsfeld (2004) • Hamdan v. Rumsfeld (2006) • Boumediene v. Bush (2008)
Bush Doctrine • US Sup Court Disagreed • Rasul v. Bush (2004) • Hamdi v. Rumsfeld (2004) • Hamdan v. Rumsfeld (2006) • Boumediene v. Bush (2008) Hamdan v. Rumsfeld: Geneva Conventions do apply at Guantanamo Bay
Abu Ghraib • 372nd Military Police Company • Iraqi prison • Widespread torture
