Torture and the Rule of Law

1
Torture and the Rule of Law
2
They that can give up essential liberty to obtain
a little temporary safety deserve neither liberty
nor safety.
Benjamin Franklin

• Balancing due process (liberty) with crime
  control (safety) has always been challenging
• How does a justice system grounded in principles
  of due process protect its citizens from
  terrorism planned or completed?

3
Torture for Interrogation

• Do you favor or oppose allowing the government to
  use any means necessary, including physical
  torture, to obtain information from prisoners
  that might protect the United States from
  terrorist attacks?

4
Any means necessary?
Before verification of torture
5
Is torture ever justified?

• Sure, say about 1/3 of this class
• Why?
• Gets info not otherwise gotten
• Media accounts of techniques used at Abu Ghraib
  and other places not really torture?
• Necessary means to desired end

6
Gets information But is it accurate?

• How reliable is information obtained under
  "coercive interrogation"?
• Our attention more on the two other issues
• Did behavior of US actors really rise to the
  level of torture? (Wasnt really torture)
• Do some criminal events rise to such a high level
  of importance that otherwise unacceptable
  response techniques become acceptableeven if
  laws prohibit it? (End justifies means)

7
(No Transcript)
8
The wasnt really torture argument

• What techniques have been admitted to?
• Do those rise to the level of torture?
• What would be examples of torture?
• See What is torture?
• Are there any guidelines for what constitutes
  torture?
• UN Convention Against Torture
• Effective in 1987 and ratified by U.S. in 1994
• See What laws prohibit torture?

9

• In its report to the Committee against Torture in
  1999, the US made clear that
• Torture is prohibited by law throughout the
  United States.... No official of the government,
  federal, state or local, civilian or military, is
  authorized to commit or to instruct anyone else
  to commit torture. Nor may any official condone
  or tolerate torture in any form. No exceptional
  circumstances may be invoked as a justification
  of torture. U.S. law contains no provision
  permitting otherwise prohibited acts of torture
  or other cruel, inhuman or degrading treatment or
  punishment to be employed on grounds of exigent
  circumstances (for example, during a ''state of
  public emergency'') or on orders from a superior
  officer or public authority....
• U.S. Department of State Initial Report of the
  United States of America to the UN Committee
  Against Torture

10
The new take on liberty and death
11
The end justifies means argument

• Dershowitz and the ticking bomb
• Torture warrants?
• Frontline panel on ticking bomb
• To stay strong, the liberal democracies need to
  be certain that they are better than their
  enemies (The Economist, 11 JAN 03)
• The enemy we fight has no respect for human life
  or human rights. They dont deserve our sympathy.
  But this isnt about who they are. This is about
  who we are. These are the values that distinguish
  us from our enemies. (Senator John McCain, 25
  JUL 05)

12
Attempts to find exceptions

• Any situations where torture is permitted?
• If government officials find situations wherein
  they believe the law does not applyand thereby
  effectively ignore itthe rule of law is absent

13
Any means necessary?
14
Responses to why

• Work?

• Means-Ends?

• We are obviously getting some useful information
  . . . otherwise I seriously doubt we would
  continue our interrogation techniques
• I strongly believed that in most cases the tool
  of torture is more often than not unsuccessful,
  resulting in wasted time and energy
• During class discussion I changed my position to
  opposing it because I began to question the
  effectiveness of torture
• Unless we know for a fact that the torture will
  be beneficial we shouldn't do it

• There should be an evil to combat the evil that
  is in our world today
• Id favor it if we can be 100 sure an attack can
  be prevent with torturebut there is no way we
  can be 100 sure
• If it is believed the information is valid and
  will save American lives, then I favor use of
  torture
• If we have to do these things to be safe, then we
  should

15
Responses to why

• What Constitutes Torture?

• Higher Standard?

• Torture does not always inflict permanent injury
• Effects of psychological torture need to be
  examined further
• Mental torture seems more humane than physical
  torture

• If we torture people, how can we expect anything
  other than the same from other countries?
• The US needs to lead by example and not stoop to
  those levels
• It is hard for the US to reprimand other
  countries for doing something we do
• America is no better than any other country and
  if we don't want it done to our soldiers then we
  shouldn't do it to other countries
• If we torture prisoners we are no better than the
  terrorists we are trying to catch

16
Changing Emphasis

• Interesting to me that Sp06 class emphasized the
  does it work whereas the Fa08 class emphasized
  the what is torture and the higher standard
  arguments
• Seldom was the very simple its wrong argument
  made (Fa08 Torture is inhumane, in fact inhuman,
  and cannot be justified regardless of
  circumstances)
• Still have quite a way to go!