TORTURE AND THE RULE OF LAW

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?

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?

Any means necessary?

Before verification of torture

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

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)

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?

 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

The new take on liberty and death

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)

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

Any means necessary?

Responses to why
Work?
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

Means-Ends?
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

Responses to why
What Constitutes Torture? Torture does not always inflict permanent injury Effects of psychological torture need to be examined further Mental torture seems more humane than physical torture Higher Standard?
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

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!