Nobles Ends: Torture and the Ethics of Counter-TerrorismFootnote 1

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Marc Imbeault
Associate Professor, Royal Military College Saint-Jean

"Let us leave aside all speculation about princes
and look only at the realities." [Translation]

Niccolò Machiavelli, The Prince, XV

The issue central to this presentation can be summarized in the following question: "What is the value of the moral justifications for the use of torture in the fight against terrorism?" The enemy facing the West has clearly stated that he would not shrink from using any means to achieve his ends. In a videotaped message broadcast just after the attacks of September 11, 2001, Osama Bin Laden explicitly threatened to destroy America. The many attacks that followed show that this warning must be taken seriously. It would accordingly be a serious mistake to minimize the threat that looms over America and over the West in general, in order to oppose the exceptional security measures taken by Western countries in the wake of September 11.

Terrorist organizations do not hesitate to justify the use of the most violent means, and they have no respect for the most fundamental human rights: for them, the end justifies the means.Footnote 2 The issue is whether Western countries, and specifically the United States, are justified in adopting a comparable stance and using morally reprehensible means such as disinformation, lies, corruption or torture to defend themselves. We will limit our discussion here to a single aspect of this issue: the use of torture in the interrogation of individuals suspected of terrorism.

I will leave aside for the moment the legal definitions of torture. Discussion of these definitions may be useful and important, but does not concern ethics as such. Ethical principles outweigh, if one can use the term, legal principles, and their field of application is broader. I will accordingly use the word "torture" in the context of interrogation sessions during which physical or psychological pain is inflicted on someone in order to obtain important information.

1. The ethical justification for the use of torture in counter-terrorism

The justification of torture generally revolve around the uniqueness and the urgency of the situation.

a) The exception

The exceptional nature of the fight against terrorism can be examined on two levels. The first concerns individual members of a terrorist organization. The second concerns the overall situation created by the use of terror.

Through membership in a terrorist organization, individuals place themselves in an exceptional situation in which the rights normally granted to prisoners of war cannot apply. Terrorists are not part of a regular army, and their operations are closer to those of spies than those of soldiers.Footnote 3 This is why terrorists are not considered combatants within the meaning normally used in the treaties and conventions banning torture. It would thus be normal for them to be treated differently from other combatants when captured. According to this approach, the type of action undertaken by terrorists — subversive strikes — exclude them de facto from the protection of treaties such as the Geneva Conventions. The same type of action, however, justifies the claim that they cannot receive the legal protection normally enjoyed by citizens in a state founded upon law. Terrorism itself is deemed to have created the global context that justifies the suspension of suspects' rights. Individuals suspected of being part of terrorism, or of assisting it in any way, thus no longer belong to humanity. It is therefore possible — and at times even necessary — to torture them if that makes it possible to obtain information.

b) Urgency

The prevention of terrorist attacks is also a matter of urgency. It may be that the investigators do not have much time to interrogate a suspect and that the use of torture is deemed to be the only way of obtaining information quickly. The example most often used is that of the ticking time bomb. In such a case, a serious, imminent threat would clearly justify the use of torture. It is important to prevent a bomb from exploding if it could kill thousands of people.

Many authors have used the rationales of urgency and of the exceptional nature of the fight against terrorism to justify torture. Here, I will discuss the argument used by a characteristic representative of this approach: "An Ethical Defense of Torture in Interrogation" by Fritz AllhoffFootnote 4. In the same vein as Michael Levin and Alan Dershowitz, who justify torture when it is the only way of averting a serious, imminent threat, Allhoff offers a process of reflection on the conditions which can morally justify the use of this practice.Footnote 5

In his article, Allhoff first maintains that torture must be placed in the context of a dilemma between the rights of the individuals being interrogated and those of the people one is trying to protect. To illustrate his idea, Allhoff asks us to imagine a police officer in a face-off with a gangster who is on the point of killing the five witnesses to one of his crimes. The police officer would be justified in opening fire on the gangster to save the witnesses, since the rights of the gangster are outweighed by their rights. This example clearly indicates that, in Allhoff's view, it is at times necessary to violate one right in order to defend another. In his view, the same is true in cases of the rights of terrorism suspects in relation to the rights of their potential victims.

"Therefore, I think that a strong case can be made for the idea that torture can be justified, even if it entails rights violations, so long as we find ourselves in such a quandary that rights will end up being broken whether torture occurs or not. In these situations, some rights violation is bound to occur regardless, so we might as well either serve the greater good or else aim to minimize the overall violation of rights…. Either goal suggests the permissibility of tortureFootnote 6."

Once torture in general is justified as a lesser evil in certain circumstances,Footnote 7 Allhoff wonders under what specific conditions it can be used. He identifies four which, if they are all met, could justify torturing a suspect in order to obtain information. He summarizes this contention as follows:

"I think that the conditions necessary to justify torture are: the use of torture aims at acquisition of information, the captive is reasonably thought to have the relevant information, the information corresponds to a significant and imminent threat, and the information could likely lead to the prevention of the threats. If all four of these conditions are satisfied, then torture would be morally permissibleFootnote 8."

In order to be able to assert that torture is legitimate, it must thus be used solely to obtain important information that would make it possible to forestall an imminent strike. It is also stated that there must be good reason to believe that the suspect who will be tortured does indeed have the information. Allhoff concludes this development with a description of a paradigmatic example:

"For example, imagine that we have just captured a high-ranking official with an internationally known terrorist group and that our intelligence has revealed that this group has planted a bomb in a crowded office building that will likely explode tomorrow. This explosion will generate excessive civilian casualties and economic expense. We have a bomb squad prepared to move on the location when it is given, and there is plenty of time for them to disarm the bomb before its explosion tomorrow. We have asked this official for the location of the bomb, and he has refused to give it. Given these circumstances (which satisfy all four of my criteria), I think that it would be justifiable to torture the official in order to obtain the location of the bombFootnote 9."

After identifying the conditions under which the use of torture is justified, the only remaining question is to specify what type of torture is acceptable. The principle that guides Allhoff here is that exaggerated means should not be used. He states, for example, that if merely depriving someone of a meal is enough to make him talk, it is not necessary — not morally acceptable — to pull out his nails. The rest is appropriate.

2. The excesses of abstract knowledge

The type of argumentation advanced by Allhoff has the value of highlighting the dilemma which could potentially be faced by current Western political leaders. However, the method he uses does not support conclusions of any kind regarding the morality of torture. This method is founded essentially on imagination and has validity only in an abstract world where theoreticians can define data as they wish, without referring to actual historical events other than in anecdotal form. Not that anecdotes are worthless; on the contrary, they may draw attention to an important aspect of a problem and in this sense play a not inconsiderable heuristic role.

Abstract scenarios also have the drawback of catching a thought "in a trap," so to speak, and dragging it to conclusions which run counter to the most fundamental intuitions, such as the revulsion we feel regarding the use of torture. To return to the examples put forward by Allhoff, it is clearly difficult to maintain that a police officer would be refused permission to shoot a gangster who was on the point of murdering five innocent people in a cowardly way. It is also difficult to claim that a high-ranking terrorist should not be tortured if he has crucial information that would prevent large-scale attacks. However, although it is possible to imagine such examples, they do not have much connection with reality. Allhoff's reasoning is accordingly valid from the point of view of pure logic, albeit fragile in terms of applied ethics. It presupposes that we know a priori (before the fact) what we in reality know only a posteriori (after the fact). We are routinely confronted with this confusion when we hear that such and such an incident could have been — and thus should have been — avoided. The police are often criticized for not having arrested a criminal before he or she committed a crime. However, the same police are equally often blamed for abusing their powers by making arbitrary arrests. The truth is that one cannot arrest everyone who poses a threat of committing an offence. (In other words, maybe everyone?) This is why the work of the security services more often resembles art than science. Basing ethical considerations on a "thought experiment" which is rooted as much in the imagination as in reality thus appears to be a risky undertaking, from both a theoretical and a practical standpoint.Footnote 10

Let us take a concrete example which is familiar to everyone and has the advantage of being real: that of the attacks of September 11, 2001. Once they had occurred, it was fairly easy to demonstrate that they could have been avoided and to criticize the American security services as incompetent, stupid or naïve – to the point that some propagandists maintain that the attacks were desired by the American authorities themselves. Preventing them would in fact have been so easy that there was no explanation for how they could have occurred, other than with the complicity of the CIA or the FBI! Here, however, we must be careful not to confuse what is possible with what is real. The fact that something is a possibility does not make it a reality: that something is possible does not necessarily imply that it exists. The possibility that al Qaeda was conspiring to bring down the towers of the World Trade Center was serious; the fact that some people were taking flying lessons but had no interest in landing manœuvres was not, prior to September 11, 2001, a sufficient reason to arrest them. It must not be forgotten that the success of this operation lay precisely in the unheard-of nature of the attack and accordingly its element of surprise. The same attack would probably not be possible today, due to the simple fact that passengers on a hijacked aircraft no longer react as they reacted then to an attempted hijacking, precisely because of the attacks of September 11.

But even if torture is morally unjustifiable, could one not maintain that it may be politically justifiable, if one admits – and this is a theory that I endorse – that the political sphere is separate from the moral sphere?

The rejection of torture on the grounds that it is immoral does not mean that states must automatically prohibit the practice thereof. It is in fact impossible to reduce political activity to morality alone. There are specifically political imperatives under which the use of torture can be examined in a different light and, generally speaking, the use of morally repugnant expedients, such as lies, misinformation or corruption. At this point, I would like to conclude these thoughts in order to put into perspective what we have just asserted from a moral standpoint.

3. Violence: the quintessence of politics?

Analyzing the issue of torture from a political perspective means evaluating its relevance in terms of costs and benefits to society. Torture may then become one of the means used by power to achieve its ends. Is not violence central to politics?Footnote 11 There is truly a paradox between the specific means and the ends of politics: between peace or concord, which is the aim of politics, and the violence it uses to achieve that end.Footnote 12 The Prince, as Machiavelli said, must learn "to be evil, and use or not use this art, depending on necessity. [Translation]"Footnote 13 He must be at times a lion and at times a fox, meaning that he must use force and trickery wisely depending on the circumstances.

Drawing on the lessons of the past, Adam Roberts summarizes the current situation in the following passage:

"All societies encounter problems when fighting an invisible, brutal enemy who may have numerous secret sympathizers. Under such circumstances, most states, even democratic ones, use some form of imprisonment without trial. This entails serious risks: first, the risk of arresting and detaining the wrong people; second, that detainees are mistreated. In both cases, the danger lies in creating martyrs and thus feeding terrorism [Translation]Footnote 14."

As we have seen here, the analysis of torture benefits from being placed in a historical perspective. Alfred McCoy demonstrates convincingly in his book A Question of TortureFootnote 15 that this practice yields significant results only on a large scale. The Battle of Algiers provides a well-known instance of this. In 1957, the French army and intelligence services tortured thousands of people in the Algerian capital and managed to obtain sufficient valid information to nullify the attempted strikes by the terrorist organizations that were active at the time. These results were obtained by amassing substantiating information obtained through torture. It would undoubtedly have been possible to achieve this through other means, but that would have required the work of interrogators who were skilled, well trained and educated, whereas practitioners with very ordinary abilities proved sufficient to handle the traditional techniques characteristic of so-called "robust" interrogation. From this point of view, the use of torture is tempting and appears, at least at first sight, to be relatively inexpensive.

In order to correctly assess the cost of torture, however, both the short-term and long-term costs must be considered. In the short term, with the exception of doctors who can supervise the process and prevent premature death, torture can be carried out by personnel with little training and cheap instruments — such as the infamous gégène. The cost of torture is thus relatively low compared to the cost of training sophisticated interrogators and analysts who do not use such means to obtain information. It should not be forgotten, however, that torture comes with a high political cost. In the long term, the use of torture can have severe consequences for the troops of a country that engages in it, on those of the enemy and on public opinion.

Let us begin with the impact on the troops of the country concerned. It is pointless to authorize only a few individuals to carry out torture, for a limited period of time and with limited methods. Such authorizations have invariably presaged the swift generalization of torture throughout security systems, without which it is ineffective. The generalized use of torture, however, has a devastating effect on troops, the main problem being that the enemy, who is no longer regarded as a human being, is initially despised and then inevitably underestimated. This is one of the worst catastrophes that can befall a fighting organization.

Among the enemy, the use of torture intensifies the process of fanaticization that feeds the war. It is not difficult to understand the reaction of a people whose "children" are tortured. In the case of the Battle of Algiers, torture had the effect of dramatically exacerbating the resentment felt by Algerians toward all French people and broke off the last channels of communication which might perhaps have led to a moderate negotiated solutionFootnote 16.

Ultimately, the most serious consequence of the use of torture is its effect on public opinion. The favourable light in which America was viewed by world public opinion in the wake of the September 11 attacks has given way to mistrust, even hatred, since the mistreatment to which prisoners have been subjected at Guantanamo in Cuba and at Abu Ghraib in Iraq became known. Controlling public opinion is not easy, and America is having difficulty refurbishing its image, despite the expenditure of millions of dollars. The same was true for France after the Battle of Algiers. Even today, the dishonour of the French torturers casts a shadow over the country's reputation.

While torture can accordingly not be excluded from the political arsenal, its very high cost in the medium and long term must be emphasized. The fact that the techniques used do not entail excessive expense masks the high cost associated with the political consequences of its use. Torture accordingly cannot be recommended, even from a strictly political standpoint. The first great counter-terrorism expert, Joseph Fouché, Duke of Otranto and Chief of Police under Napoleon, explicitly advised against it. On the other hand, unalloyed idealism can no more lead effectively to victory than can cynical realism. What is essential is the ability to manipulate both and to maintain a sense of proportion. Security systems that are based exclusively on benevolent humanism will be swiftly subverted by the enemy and they will be unable to anticipate threats or to neutralize them. It is thus essential to find a middle way between the two extremes, one of which would be a policy totally devoid of moral principles and the other a policy totally devoid of flexibility.

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