Civil Liberties
Torture - An Idea For Our Time

The bomb is ticking somewhere in central London. The evacuation cannot be completed in time, and hundreds or thousands may die. Scotland Yard has a man in custody. His name is Yusuf. His interrogators think he knows where the bomb is and how to defuse it, but they have read him his rights and he’s not talking. He wants his lawyer.

“Surely it’s time to ask the prime minister for permission to use a little torture to save a lot of lives”, someone exclaims.

The British prime minister has called an urgent cabinet meeting. As the second hand flows around the dial, will it be thumbs up for the thumbscrew, or will the city be condemned to certain death and destruction?

“We’re about to be lynched with our own liberties”, cries David Blunkett, once more in charge of homeland security; “our first priority has to be to protect innocent people.” With the vote for a possible fourth term around the corner, most of his cabinet colleagues voice instant agreement.

The prime minister will refer to “enhanced interrogation methods” – with a nod to the Americans’ talent for euphemism – but will make the call without hesitation: “Make him talk. Whatever it takes.” So Yusuf won’t have a nice day, but you can’t make an omelette without cracking a few eggs.

Return

In the light of the London bombings on 7 July, some people think this is all a bit close to home. I’ve been talking to experts in the United States and Britain about torture. We have debated all sides of the issue, from amorphous morality (is torture just uncivilised?), to the utilitarian question of whether there is ever a way to assess the reliability of its bitter fruit.

Michael Levin of City College in New York wrote with some prescience in 1982:

“Suppose a terrorist has hidden an atomic bomb on Manhattan Island that will detonate at noon on July 4th unless there follow the usual demands for money and release of his friends from jail. Suppose, further, that he is caught at 10am on the fateful day, but won’t disclose where the bomb is. What do we do? If we follow due process, wait for his lawyer, arraign him, millions of people will die. If the only way to save those lives is to subject the terrorist to the most excruciating possible pain, what grounds can there be for not doing so.”

Levin continues to advocate torture. He points with some triumph to 11 September 2001 as evidence that the new face of the enemy demands new rules of engagement. He has been unwillingly joined by Alan Dershowitz, Harvard’s civil libertarian law professor, who proposes the use of torture warrants, in the hope that inserting a judge between the torturer and his subject will limit the use of the modern rack.

Debating the use of torture is no longer the exclusive provenance of college professors who are desperate to provoke their yawning students. Powerful armchair warriors in the Bush administration openly advocate torture, albeit recast in evasive language, and Alberto Gonzales, (later United States attorney-general), advocated the abolition of the “quaint” Geneva Conventions. In the Brave New World of Osama Bin Laden and al-Qaida, we are told that torture is not only acceptable, but if innocent lives may be saved, it is morally mandated.

“Once you concede that torture is justified in extreme cases”, continues Professor Levin, “you have admitted that the decision to use torture is a matter of balancing innocent lives against the means needed to save them.” His argument provokes three questions that many of us thought we would never be debating this side of the Dark Ages:

Is there a moral imperative that impels us away from torture no matter what its utilitarian value?

Does torture generally “work” under the less extreme circumstances?

Is the ticking-bomb scenario in any way realistic, or are we building the rules of society on a chimera?

Morality

I must confess to having met one witness to torture’s small-scale efficacy. Lieutenant-Colonel William “Big Bill” Cowan served in Vietnam. He describes attaching bull-clips to the genitalia of Vietcong prisoners to learn about enemy troop positions. The information could be verified by immediate action. But he says that torture can only achieve results if the threat comes immediately upon capture: within forty-eight hours, the enemy knows that the prisoner has been taken, and has already taken steps to minimise the predicted dissemination of intelligence.

Bill presents the argument in a stark perspective: war is all about killing, and the officer’s only obligation is to protect the lives of his men. Threatening physical torture is a relatively benign alternative to carpet-bombing, and Bill feels that adhering to a code of conduct in warfare is like applying the Marquess of Queensbury rules in the boxing ring when your opponent holds a knife. Is war subject to being “civilised”? Should there be rules against bombing hospitals, if the injured may later take the field once more? Why should we not bomb civilian targets and shoot captives, if this will demoralise the enemy? These are subjective propositions – albeit ones that many of us thought answered by the enactment of the Geneva Conventions in 1949.

Efficacy

The second issue, the efficacy of torture, should be more objective. The thesis that anyone would say anything under torture is intuitive, but various other laws enacted after Nuremberg hamper putting it to empirical test. That said, we must concede that torture sometimes results in accurate information: even my local soccer team, Cambridge United, inevitably scores a goal some of the time, though they just got relegated yet again.

Despite Bill Cowan’s experience, it would seem that for the most part torture does not work, either because it extracts inaccurate information, or information that is not subject to verification. The prisoners in Guantánamo Bay have confessed to outlandish things when tortured and abused. The young British Muslims held there who came to be known as the “Tipton Three” admitted to being the shadowy figures on the edge of a video of Osama bin Laden, taped in Afghanistan in 2000. The problem for the prosecution was that they were working in an electronics store in Birmingham at the time.

Without leaving the city limits, we know that most of the “Birmingham Six”, wrongly arrested for an Irish Republican Army (IRA) bomb in November 1974, confessed falsely when beaten by the police. The Saudis recently used torture to get several British citizens to confess falsely on camera to various lethal bombings, and sentenced them to death.

Most horrific of all is the experience of my client Binyam Mohammed, a British refugee from Ethiopia. A CIA plane took him to Morocco where he endured months of abuse. It culminated in a razor blade to his penis. He told them whatever they wanted to hear.

Realism

The ticking-bomb scenario is a seductive inducement to torture, but herein lies the deception: the situation simply does not exist. Many people would vote for a single turn of the screw if it would save millions. The same folk would probably vote for the death penalty if every execution swept away a guilty killer and saved a thousand innocent lives. Yet many of us oppose capital punishment because we fear the execution of the innocent, and we sincerely doubt the deterrent effect of the rope, the chair or the needle.

It is ultimately a false and unattainable god. Fyodor Dostoevsky wrote in The Brothers Karamazov:

“[i]magine that you are creating a fabric of human destiny with the object of making men happy in the end, giving them peace and rest at last, but that it was essential and inevitable to torture to death only one tiny creature [to achieve that goal] would you consent to be the architect of those conditions?”

Torturing animals does not create utopia, and torture does not prevent ticking bombs.

In truth, we have to go back 400 years to reach the closest example of a ticking bomb scenario that almost happened – to the Gunpowder Plot, on 5 November 1605.

The parallels with today are remarkable. Religious intolerance of Elizabeth I had stoked up the smouldering embers on both sides: the Protestant majority hated and feared the Catholic minority, who smarted in their oppression. There had just been a change of government, and the country was unstable. James I’s promises of equality had been swiftly swallowed by Realpolitik.

Guy Fawkes was one of small band of Catholic extremists. He had been pursuing his jihad around the rest of Europe for the previous decade, before his band of terrorists turned their focus on England. They hoped that a cataclysmic blow now could strike at the very foundations of British society. The plot was well-developed: a massive explosion would level the House of Commons, obliterating the entire government. It would be timed for the opening of parliament, engulfing the royal family as well.

The threat of chaos was very real: Cromwell’s civil war came only thirty-five years later. It would have been hurried along, and thousands would have died in the chaos.

Yet, the Gunpowder Plot was not solved by torture. The ticking-bomb was defused by old-fashioned intelligence. Because at least some members of the government of the day had made a stand for decency, the plotters tried to warn them of their impending doom. The Monteagle letter was sent to a Catholic member of parliament, warning him to find an excuse to miss Parliament. One thing led to another, and Guy Fawkes was found loitering in the cellars.

But torture was surely used. Anticipating Professor Dershowitz by four centuries, British law required that the king or the Privy Council issue a warrant before torture could be used. King James did not pause before he issued the warrant, though he reputedly ordered that the “gentler ‘tortours’” be applied first.

As with Guantánamo Bay today, their goal was not really to identify the plotters, because the ringleaders had all been captured or killed. The goal was to get evidence against others whom the government suspected of involvement. In this, the rack was successful: some of Guy Fawkes’s colleagues cracked, and fingered the Jesuit priests.

The authorities naturally believed that the priests were the ringleaders of any Catholic troublemaking – they were the imams of their day. The torturers therefore knew whose names they wanted to hear. Naturally, they got what they wanted.

Sadly, history teaches us that the wretched priests were probably innocent. Their limited knowledge of the plot had been learned under the veil of the confessional, and they had tried to steer Fawkes and his colleagues onto another course. Even though they were strong critics of Protestant intolerance, they knew then what the overwhelming majority of Muslims know now – that a violent plot by a few extremists would only lead to greater persecution against all members of their faith. But this did not prevent the victors from enjoying their justice, and the priests were duly dispatched at the stake.

As a footnote, it is worth noting that two of the plotters traced their disaffection to the abuse of their Catholic fathers in the infamous Star Chamber. Violence begets violence.

Enlightenment

It is sad to think that the question of whether we should use torture is one of the moral issues of our time. The real issue is not whether torture should be used, but why we are talking about it in the 21st century. Tempting though it is to toss out civil liberties each time the phantom Fear is resurrected before us, this is another false premise of the torture debate.

Is it really true that 11 September 2001 and al-Qaida have pitched us into a Brave New World – or is the United States just unused to the battle being carried to her own soil? Can it honestly be said that Britain faces a greater threat today than in November 1940, when the first series of attacks on London killed twice as many civilians as 9/11? Does anyone face a danger equal to the Jewish people in Auschwitz? Does a small group of terrorists present a greater peril than the Soviet Union in the age of mutually-assured mass destruction? Should German prisoners of war have been tortured, or Soviet politicians, to find out what was planned next?

Ultimately, the real question is whether our use of torture makes our society a safer place, and this is a much simpler question. History teaches us that the measures embodied and the errors committed under the misnamed Prevention of Terrorism Act of 1974 –passed after a few hours of parliamentary discussion in the aftermath of the Birmingham bombs – were a powerful recruiting-sergeant for the IRA in their decades of struggle.

Had he been permitted into the polling booth, Osama bin Laden would indubitably have cast his ballot for President Bush on the same basis (instead, he released a pre-election video in November 2004 with similar effect).

It is not true to say that the abuse of each prisoner in Guantánamo Bay breeds ten extremists willing to do harm to the United States: The figure is far higher. If you are British or American (or, in my case, both), your passport has become a far more dangerous commodity, because of what we have done these past three years.

Bill Cowan is more realistic about the consequences of violence than his commander-in-chief:

“We need to find Muslims who will support us, who will do things for us – and if we cause civilian casualties, we lose that”, he says. “We may win tactical victories like Fallujah but they are not helping us win the larger war for the support of the Iraqis. Not one city in Iraq had drinkable water eighteen months after we arrived. We should stop using contractors and just get a decent US Army Construction Battalion in there, do a show city, indicate how it can be done.”

Decency is genuinely a good idea. When we treat others with decency, they become far less likely to wish us harm, and far more likely to tell us what they know about the extreme plans of others. Torture is indeed uncivilised; it is also unwise.

Clive Stafford Smith is a leading human rights lawyer

Full article from Open Democracy CC via ukwatch at:
 http://www.ukwatch.net/article/879
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Neil at FIGHT BACK
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