Can Torture Ever Be Morally Justified?

Basing your arguments on the decision of the House of Lords in A(FC) v. Secretary of State for the Home Department [2005] UKHL 71 and the article by W. L. Twining and P. E. Twining ‘Bentham on Torture’ at vol. 24 Northern Ireland Legal Quarterly 305, what is morally wrong with torture? Can it ever be morally justified? If so, when? If not, why not? Torture is not a popular practice amongst any developed society. To some, it is an extremely emotive word, the mere utterance of which brings to mind feelings of disgust and hatred towards those who might even think of employing torture, for whatever purpose.

However, perhaps these people are too quick to dismiss torture without really thinking about it. For all that is wrong with torture, there may be justified uses for it. Though such a situation which gives rise to acceptable torture is an extreme rarity, it could be a mistake to simply prohibit the use of torture absolutely.

One could regret such a decision when the time comes that torture is not just acceptable, but necessary, for a greater good. This will be considered in much greater depth later on in the essay.

To give clarity to the argument, it shall be split into three sections followed by a conclusion. First it will be necessary to define the word ‘torture’. It is a notably broad term so some limits insofar as its use within this essay is concerned will be required. Secondly I will address the question of what is morally wrong with torture.

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It is hard to deny that nearly everything about torture is morally objectionable. However, as I will attempt to argue in the third part of the essay, there are times when torture could be morally justified. Some examples will be given to help illustrate these situations.

A short conclusion will follow. Throughout the essay, references will be made to the judgment of the House of Lords in A(FC) v. Secretary of State for the Home Department [2005] UKHL 71, W. L. Twining and P. E. Twining’s article ‘Bentham on Torture’ at vol. 24 Northern Ireland Legal Quarterly 305 as well as various other sources. Torture is a very ambiguous word. The term can be applied not only to situations where one is intentionally inflicting pain on another, but it can also be used to describe any form of severe pain no matter how it is caused.

In order to limit confusion it is essential to narrow down what is meant by ‘torture’ in the context of this essay. Its definition varies from dictionary to dictionary but the general consensus is that is involves the infliction of severe mental or physical pain for reasons of retribution, gratification or coercion. At this stage I wish to point out that in no situation is torture for the purposes of retribution or gratification ever justifiable. Even in the case of the most prolific, horrendous offender, the exercise of torture would not be acceptable merely in pursuance of the ‘eye for an eye’ rationale, or for mere satisfaction.

One need only look at human rights legislation and conventions around the world to understand how universal this view is. A distinction is necessary, therefore, between these sorts of torture and torture for the purpose of coercion. Jeremy Bentham defines torture in this sense as ‘where a person is made to suffer any violent pain of body in order to compel him to do something or desist from doing something which done or desisted from the penal application is immediately made to cease’[1]. This is the definition to bear in mind within this essay.

Any form of torture which is to be acceptable for this purpose would have to be acute and temporary. If a torture ‘victim’ knows the pain of the torture will last well after its application, he has less of a compulsion to do what is required of him. Most of the controversy on torture lies around torture for coercion, as there are a number of advocates of torture to justify an end, such as Bentham himself, particularly where torture is blatantly the lesser of two evils. This theme shall be returned to once the moral arguments against torture have been considered.

As Twining & Twining point out in their article “Bentham on Torture”, ‘the right of the individual not to be subjected to torture seems one of the easiest [fundamental human rights] to argue for philosophically’. General opinions are so hostile towards torture that it has received considerably less consideration by academics and writers than other legal areas of debate. The biggest objection to torture is that it is so liable to abuse and that gradually it will become more acceptable to torture people for lesser crimes.

As Lord Hope of Craighead said in A v Secretary of State for the Home Department (above) “Once torture has become acclimatised in a legal system it spreads like an infectious disease, hardening and brutalising those who have become accustomed to its use. ” This is difficult to deny. Once one extreme case results in torture, less and less extreme cases will have similar consequences. Simultaneously torturers will be more willing to use more painful and cruel forms of torture as they become accustomed to inflicting pain.

Due to the nature of torture, the suffering inflicted is not at all in proportion to the crime, but to the resolve of the victim. This could lead to a terribly disproportionate amount of pain being exerted onto the victim. This slippery slope argument is particularly common amongst anti-torture advocates because it is true in all walks of life, so an effective argument to the contrary is almost impossible to formulate. For example, just as once machine-gun warfare was considered atrocious, we have since moved on to nuclear warfare, with machine-gun battles seemingly more acceptable and tame in comparison.

If we start torturing people for information regarding the whereabouts of bombs or other large-scale threats, how long until it becomes acceptable to torture people for trivial matters such as the names and whereabouts of convicts’ accomplices? Bentham seems to condone the use of torture in order to locate accomplices. While his arguments are noteworthy[2], any evidence obtained through torture regarding accomplices will be as uncertain as a confession obtained through torture, which is something Bentham paradoxically considers to be ‘of no use’.

This links in with the second major objection to torture; that it often does not work. People will say anything to stop or prevent torture being asserted against them – lies, half-truths. Much information extracted through torture will take time to verify, and some information will not be verifiable at all (in the case of torture to change peoples’ religious and political views, how does the torturer know if the victim is genuine when he alleges to submit? ). Torturing for information regarding enemy forces has generally proved ineffective; especially because often those who fight are die-hards, and would rather be tortured to death than betray their cause.

As Amnesty International put it; “Can we defeat insurrections, rebels and terrorism by resorting to torture and ill-treatment? The lesson of history is that we can’t. ” It is largely for these reasons (although other moral objections to torture are still very significant) that confessions acquired through orture are unreliable, and are now inadmissible in English courts. Lord Hoffman, as well as most of the other judges sitting in the House of Lords for A v Secretary of State for the Home Department, made this abundantly clear: “Those [tortuous] methods may be such that it would compromise the integrity of the judicial process, dishonour the administration of justice, if the proceedings were to be entertained or the evidence admitted …In my opinion therefore, there is a general rule that evidence obtained by torture is inadmissible in judicial proceedings.

The judges, clearly very anxious to avoid ‘bring British justice into disrepute’, have the full support of Bentham, who correctly observes that if a judge (or jury) is satisfied of a man’s guilt without confession, there is no need to put him to torture to obtain such a confession. If not then that man should not be subjected to torture anyway. Another argument concerns not the victims of torture, but those who would carry it out against them. It is one consequence of torture which is not commonly considered, perhaps because it is difficult to conceive exactly of the effects that torturing other people might have on the torturer.

The most effective accounts come from those who have been tortured. A number of sources detail the effects it can have on those who practice torture. In the Twining & Twining article is a letter written by George Mangakis, a torture victim: ‘I have seen the torturer’s face at close quarters. It was in a worse condition than my own bleeding, livid face’. Merle L. Pribbenow of the CIA said, about Vietnamese torturers “if you talk to people who have been tortured, that gives you a pretty good idea not only as to what it does to them, but what it does to the people who do it. One of my main objections to torture is what it does to the guys who actually inflict the torture.

It does bad things. ” It is certainly a valid argument against torture. There are also some other arguments commonly proposed against torture worth mentioning. The brutal, degrading effects which often come with torture often live long past the infliction of the pain itself, no matter how little a mark it leaves physically. For this reason torture can be said to harm more than it propounds. The physical pain may cease upon compliance, but the mental scars remain, and many people will not feel the same ever again aving endured torture. Much of this comes down to the denial of humanity, and the loss of self-respect which is so often the case with torture. Also, any mistakes made as to the validity of the torture, the identity of the victim, or the ability of the victim to do what is required of him, cannot be undone. This argument is similar to the one put forward against capital punishment.

There are very compelling arguments against the use of torture. It seems obvious to most that the exercise of acts of torture are well ‘beyond the pale’ in any civilised society. Having considered the objections to torture, all of which are sound and difficult to disagree with, I shall now attempt, with the aid of the writings of Jeremy Bentham and Twining & Twining on torture, to present two scenarios where it could be morally condonable to implement the use of torture. I shall also seek to address each of the objections described above, and how in the appropriate situation such arguments against the use of torture seem less compelling. The most common challenge to someone who deals an absolute against torture is to present them with the ‘ticking bomb’ scenario, as described in the Twining & Twining article[5].

A devastating explosive device has been placed somewhere in a major city with a timing mechanism attached. X is caught and believed to have information key to disarming the device. Assuming there are no reasonable alternatives, is it morally acceptable here to torture X for this information? One possible objection to the given example is that it is difficult to condone use of torture against someone who has not been proven to have committed a crime. At this point we return to the theme of choosing between two evils: the possibility of torturing an innocent person, and the destruction of a city, killing millions of people.

There are a number of factors to be considered before deciding whether or not to employ torture: the potency of the threat, the likelihood of the victim’s guilt, the likelihood of resolving the threat having obtained the information. For example, if the torture victim is known to be guilty, and known to possess the information required, torture would seem much more justified. All this leads me to believe that it would be extremely difficult to condense into a general rule of when torture is acceptable. However, the ircumstances in which torture could be considered are so extreme and so rare that a general rule probably is not necessary. Another example is where an Air Force General, who has sole knowledge of a code to authorise and, once authorised, prevent a nuclear attack on another state, becomes insane and orders his planes to carry out a nuclear strike which would inevitably lead to a nuclear world war.

Assuming the planes could not be shot down, the only option left to those who wished to stop the attack would be to get the code from the general. In this situation, the guilt is known (even if it is not a crime per se) and the result of not torturing could well be worldwide annihilation. It is hard not to see torture as justifiable in this situation. Both examples are extreme cases, and will hopefully never occur, but nevertheless; they are not impossible and as Twining & Twining point out, they are very effective against those who assert that torture can never be justified[6]. At the centre of the current debate on torture is Alan Dershowitz, a prolific legal writer and Felix Frankfurter Professor of Law at Harvard Law School.

He argues that torture is sometimes morally acceptable, and that if it is to be used in a ‘ticking bomb’ scenario, it should be authorised legally rather than being carried out behind closed doors with the judiciary turning a blind eye. His first example in his article ‘Is There a Torturous Road to Justice? ’[7] is the typical time bomb scenario, where thousands of lives are at stake. His second is more thought-provoking, as there is only one life at risk (albeit a very young one). Specific situations like these are so rare that, as previously mentioned, a general rule is not necessary and indeed probably not possible. He goes on to suggest the use of ‘torture warrants’ being issued by judges to authorise the use of torture.

There are merits to this idea – accountability and legitimacy, to name a couple, but would this be practical in the ticking bomb scenario? If torture was to be employed in the above situations, there would need to be some valid way of authorising it to prevent authorities exploiting any potential power they may have to torture. However, because the examples given are very urgent and require immediate action, the issuing of torture warrants would not be practical. By the time the warrant is issued, the bomb ould be ready to explode, the planes reaching their targets or the baby running out of oxygen. A situation which could require the use of torture would need to be so extreme, and of such urgency that approval would have to come from the highest authority: the Prime Minister. This is similar to the type of ‘One-off’ acts of torture reserved for extreme situations set out by Seumus Miller in his article ‘Is Torture Ever Morally Justifiable? ’.

Of course, further consideration into the detail of such an approval mechanism would be required, but generally that is what I believe would be necessary if torture had to be employed. Now that the situations in which torture could arise and be used have been described, it is important to consider the arguments against torture as previously explained, and rebut them. For the first point, that torture would gradually become more commonplace; the ‘ticking bomb’ situation is so rare that it is highly unlikely that any legal system would ever become acclimatised to torture. For the second, it is true that in any situation torture provides no guarantees, but to that it can be said that there are no alternatives. If torture does not make them talk, nothing will.

For the third, that the people who torture would be adversely affected, in the ticking bomb scenario torturers would be instilled with the sense that they are doing the right thing and acting for a greater good. Fourthly, torture need not be degrading or involve any loss of self-respect. Pain and compulsion do not necessarily go hand-in-hand with degradation and with today’s technology there could be very effective torture methods which leave self-respect mostly intact. Lastly, mistakes should not be made in the ticking bomb situation. However it is this point which seems hardest to redress. In the first example of a ticking bomb, the authorities may not be so sure of the victim’s guilt.

However, as stated before, if they have a strong suspicion that the use of torture could save many lives then that risk may have to be taken. The Prime Minister would be accountable for mistakes and so this acts as a check unto itself. Applying torture without very good reason to an innocent person would almost certainly amount to his resignation. In any case, even if torture is prohibited completely, this would probably just lead to the exertion of illegal torture when the ticking bomb scenario does arise. In my view, the possibility of implementing the use of torture cannot be ruled out absolutely. Although I can think of no general rule to be applied to all cases, there are extreme emergency situations in which the use of torture would seem morally justified. With the correct procedures and restraints, limiting its use to these extreme ticking bomb circumstances, it would be morally acceptable and justifiable to reserve the right to use torture.

 Bibliography

1. A(FC) v. Secretary of State for the Home Department [2005] UKHL 71 W. L. Twining and P. E. Twining ‘Bentham on Torture’ at vol.
2. 4 Northern Ireland Legal Quarterly 305 “Is Torture Ever Morally Justifiable? ” Seamus Miller, Australian National University, International Journal of Applied Philosophy 19:2 2005 pp. 179-192
3. “Is There a Tortuous Road to Justice? ” Alan M. Dershowitz, Los Angeles Times November 8 2001 http://web. amnesty. org/pages/stoptorture-arguments-eng Bradley & Ewing: “Constitutional and Administrative Law” 13th Ed. Pearson ——————————————————————————– [1]
4. Bentham Manuscripts, University College London, C: Of Torture [2] Twining and Twining ‘Bentham on Torture’ at vol.
5. Northern Ireland Legal Quarterly p. 316-318 [3] http://web. amnesty. org/pages/stoptorture-arguments-eng#question15 [4] Per Lord Brown of Eton-Under-Heywood, para. 165, A v Secretary of State for the Home Department [5] Northern Ireland Legal Quarterly Vol. 24 346-347
6. For an idea of the proportion of people who consider torture never to be morally justified, see: http://lawofnations. blogspot. com/2005/12/international-survey-on-torture-and.
7. html [7] http://groups. google. com/group/alt. impeach. bush/msg/814527884aa6c904 [8] International Journal of Applied Philosophy 19:2 2005 pp. 179-192