(Excerpted from Criminal Procedure: Constitution and Society 5e by Dr. Marvin Zalman, Copyright 2007 Pearson Education, Inc. Upper Saddle River, NJ.)
After 9/11, whether to use torture to elicit information from would-be terrorists became a lively topic. Harvard Law Professor Alan Dershowitz stoked controversy by suggesting that torture warrants would be appropriate in some cases, provoking a torrent of criticism. 1 The question is no longer theoretical. Although the Administration has denied it, the authorization and use of techniques like waterboarding, hypothermia and sleep deprivations to obtain confessions are forms of torture categorically forbidden by international and American law. 2
The International Convention Against Torture
In international law both torture and other cruel, inhuman or degrading treatment or punishment or inhuman treatment are forbidden. 3 The European Court of Human Rights stated that the difference between torture and inhuman treatment derives principally from a difference in the intensity of the suffering inflicted. 4 Torture is absolutely prohibited for all reasons.
The International Convention Against Torture (CAT) states: No exceptional circumstances whatsoever, whether a state of war or threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture. Signatories to CAT, like the United States must undertake to prevent inhuman treatment, but the no exceptional circumstances statement that applies to torture is omitted. 5 This does not condone cruel, inhuman or degrading treatment. Planning, authorizing or carrying out torture is a war crime. 6
The United States is a CAT signatory. The Senate ratification softened the international definition by providing that torture includes the intent to inflict severe physical or mental pain and by narrowing the definition of mental pain. Commenting on the news reports of treatment of Al Qaeda prisoners at Bagram air base, Prof. John Parry concludes that if true, they reveal that the United States is involved or implicated in a range of interrogation practices that are illegal under domestic and international law. 7
Is Torture Effective?
Is torture effective? Prof. Dershowitz, who is morally opposed to torture, writes that he believes law enforcement officials will employ torture in ticking bomb cases. 8 Philosophical supporters of torture emphasize this scenario and even opponents allow that illegal torture should be used to save lives in such situations. 9 The problem is that the ticking bomb scenario is a myth. The English commentator Christopher Hitchens makes the wise point that the favourite experimental scenariothe man knows where the bomb is, put the hooks into him swiftlyis actually a contingency almost impossible to visualise. I certainly know of no such real-life case. 10 A very careful analysis of the effectiveness-of-torture literature allows that in rare instances threats of the use of physical force might have worked. 11 Against this is the evidence that many anecdotes of successful torture, including three used by Dershowitz, may be less clear on careful examination and that security agencies have not provided careful documentation of success.
More important, the historical accounts, psychological studies, and case analyses of the failures and problems with coercive interrogation are legion. 12 CIA and FBI reports point out the problems of inaccurate recollection and false confessions. The use of torture in Algiers, Northern Ireland and Israel did not and have not produced desired political results.
Torture's 'Slippery Slope' Problem
The slippery slope problem cannot be dismissed as a fantasy after the indelible stain that the photographs of the abuse of Iraqi detainees at Abu Ghraib prison have left of America in the Arab and Islamic worlds. Consider the case of captured Iraqi Major General Abed Hamed Mowhoush. He initially cooperated with his captors without the use of coercion. It was then decided that further information could be gained by physical coercion. A secret CIA-sponsored group of Iraqi paramilitaries, working with Army interrogators, [beat] Mowhoush nearly senseless, using fists, a club and a rubber hose. 13 He died in United States military custody without divulging further information. 14
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