Final Essay: Terrorism, law and morality

7/25/2019 Final Essay: Terrorism, law and morality

1/10

Ingrid Galicia

Doing bad to do well?

If torture is the only means of obtaining the information necessary to prevent the

detonation of a nuclear bomb in Times Square, torture should be used and will be

used to obtain the information. no one who doubts that this is the case should be in

a position of responsibility.

- Richard Posner

I. Introduction

Before my Summer Session 12 in Yale University, where I took the course

Terrorism, Law and Morality, my perception of terrorism and its components was very

narrow. At first thought, the word terrorism brought to my mind an image of an Islamic

extremist carrying a gun and suicide bombers carrying out an attack on a large

population. I did not think that much about what would be the implications of such

events in the different realms of thought such as philosophy, ethics, law and morality. It

was very interesting for me to see the way my initial position about any topic related to

terrorism like torture, targeted killing or material support, changed as the course

progressed. My ability of analysis boosted during those past five weeks since I

encountered with challenging situations in which I had to make up my mind about what

the right or best decision would be. I was surprised to know that these hard decisions

were sometimes far from fiction and had to be made in different parts of the world

today.

In my opinion, one of the most interesting and challenging topics during the

course was torture, since it gave me a real hard time deciding whether or not it could be

considered morally justified in certain situations. Just like in terrorism, my perception of

torture was very superficial because not only is something you hardly think of during

the day, but was also something I had hardly read about. Now that I think of it, at the

beginning of the course, my idea of torture was very primitive and medieval, like when

the ancient Greeks and Romans used it as method of interrogation or fun or when in theMiddle Ages courts used it as a punishment. I thought of it as an action that used to


2/10

happen or something that hardly happened nowadays. Little did I know the whole

controversy around this topic where law and morality countered.

During these five weeks, not only I obtained a greater perspective about torture,

but also tools that helped me to question the different positions that each author or

academic had about the matter. Many things could be said and analyzed about torture,

but personally, one of the most interesting debates regarding this topic is whether or not

torture should ever be considered moral. This uncomfortable moral dilemma, perhaps

the most pressing of our troubled times, has been the head of discourse of many books,

articles, journals and conferences. In my opinion, torture cannot be ever considered

morally permissible, however, during critical times it might be necessary but still

wrong.This is why some aspects that I will analyze during this essay are the reasons

why I consider torture as wrong and immoral as well as the reasons why immorality is

not a sufficient condition for torture to be prohibited or unnecessary in extreme

circumstances and finally, I will argue the necessity for torture to have limits in order to

avoid sadism and stay illegal.

II. Why torture is wrong and immoral?

Torture can happen in different methods, such as psychological and

physical. Some examples of psychological would be blackmailing, shaming, shunning,

sleep depravation or pharmacological torture. Some physical torture techniques may be

beating, cutting or drowning. As I said before, the word torture often conjures up

images of medieval torture instruments such as branding irons and head screws. From

the mid fourteenth century to the end of the eighteenth century, torture was an accepted

practice by armies, judicial systems and even churches. The rationale for torture, which

was subject throughout the centuries to enlightened challenge, was that it was a

necessary means of averting grave miscarriages of justice, the consequences of which

would be irreversible. Yet the introduction of penalties that could be revoked, such as

imprisonment and exile, and the development of law enforcement as a profession made

this case unsustainable. For example, Scotland abolished torture in 1708, France did so


3/10

in 1798, and other countries followed suit, so that by the beginning of the 19th century

the practice of torture had been officially abandoned in much of Europe. 1

Modern sensibilities have been shaped by a profound reaction to the war

crimes and crimes against humanity like Second World War, the Vietnam War or more

recently the attacks of 9/11 in United States. Still, in recent decades the absolute

wrongness of torture has begun to be questioned, following repeated terrorist acts and

the fear that terrorists have access to weapons of mass destruction.

Most people define torture as deliberately inflicting pain on another person,

and tend to leave it at that. The UN definition is more restrictive, and the USA's is

stricter still. The main reason for this is that a general definition will easily end up in

mistaken conceptions of what torture really is. For example, categorizing an urgent and

painful medical procedure as torture. The definition of torture that I personally found

most accurate is Seumas Millers; Professor of Philosophy at Charles Stuart University

and the Australian National University, who in his paper Is Torture Ever Morally

Justifiable?2defines torture as the intentional infliction of extreme physical suffering

on some non-consenting, defenseless, other person for the purpose of breaking their

will. Moreover, Miller also argues that torture is morally justified in some extreme

emergencies. In this context some people argue that torture, while wrong, is the lesser of

two evils, and that it should be allowed if it is the only way to prevent a greater wrong.

Like, for example, to torture a person to get information that would enable the

authorities to prevent a bombing. Others argue that it is a 'moral absolute' that torture is

always wrong, and so can never be justified by any form of ethical 'cost-benefit

analysis'. In my opinion, torture cannot and should not be considered morally

acceptablein any circumstance. What I mean by this is not that it cannot be or should

not be used in extreme cases, but that the term morally permissibleis not properly used,

since by the definition of morality, torture should always be considered wrong because

of its cruelty. Nevertheless, an action considered morally wrong is not an essential

condition for it to be prohibited or unnecessary.

""torture."Encyclopdia Britannica. Encyclopdia Britannica Online Academic Edition. Encyclopdia

Britannica Inc., 2012. Web. 12 Jul. 2012.

#Miller, Seumas. "Is Torture Ever Morally Justifiable?" N.p., 2005. Web. 10 July 2012.

.


4/10

Morality is defined as the differentiation of intentions, decisions,

and actions between those that are good (or right) and those that are bad (or wrong) and

therefore, inflicting severe pain to someone until he finally reaches his breaking point

cannot be considered as a right action, no matter how good the intention is. I believe

the rules of morality should be permanent and consistent in any situation for any person

because the only thing that these rules should take into account is the rightness or the

wrongness of human actions in a neutral context. This idea goes against the term Moral

relativism that says, "If it is true for me and if I believe it, then it is right".

According to Bernard Chazelle, Professor in Princeton University, most

foundations for a strong, cogent anti-torture positions rest upon three principles3:

1. Torture is always wrong

2. Torture must be banned by law unconditionally

3.

Not all torture decisions should be morally codified

The first two principles reject torture on moral grounds (it is wrong) and legal

ones (it is bad). However, they do not imply that one should never torture. If, indeed,

our only choice is between two acts that are immoral, these two rules alone won't tell us

what to do. Therefore, the third principle stipulates that no ethical code(ie, universal

decision procedure) should tell a would-be torturer what to do in all situations. It is a

point of meta-ethics. It is not a moral rule per se, but a statement about the

inapplicability of moral rules.

On the other hand, A 2006 BBC poll held in 25 nations gauged support for each

of the following positions:

! Terrorists pose such an extreme threat that governments should be allowed to

use some degree of torture if it may gain information that saves innocent lives.

! Clear rules against torture should be maintained because any use of torture is

immoral and will weaken international human rights.

$Chazelle, Bernard. "How to Argue Against Torture."How to Argue Against Torture. N.p., July 2009.

Web. 10 July 2012.

.


5/10

An average of 59% of people worldwide rejected torture. However there was a

clear divide between those countries with strong rejection of torture (such as Italy,

where only 14% supported torture) and nations where rejection was less strong. Often

this lessened rejection is found in countries severely and frequently threatened by

terrorist attacks. E.g., Israel, despite its Supreme Court outlawing torture in 1999,

showed 43% supporting torture, but 48% opposing, India showed 37% supporting

torture and only 23% opposing. 4

It is true that the real moral issue is not trying to choose the good over the bad,

but choosing between two evils. While torture itself is bad, due to the physical as well

as psychological effects it has on people, the information retrieved could be vital to

saving human life. Although I agree about Chazelles principles, especially the last one,

a new question arises: under what criteria or situation should torture be considered a

necessity and therefore it should be excused?

II. Torture as a necessity

Henry Shue, professor of Politics and International Relations of the

University of Oxford, developed this important moral argument about torture. He seems

to be arguing that in practice torture is never justifiable.5However, he does countenance

the possibility of an extreme emergencya ticking bomb scenarioin which torture

would be morally justifiable. The ticking bomb scenario is a thought experiment used in

the ethics debate over whether torture can ever be justified:

A known terrorist is in the captivity of the security services of a certain

country. He is known to have planted somewhere a ticking bomb, which would kill many

innocents. The security services know that he knows where the bomb is, but he is

refusing to divulge its whereabouts. In order to get him to talk they torture him.

%BBC News. BBC, 19 Oct. 2006. Web. 12 July 2012.

.

&Shue, Henry. "Torture."JSTOR. N.p., 1978. Web. 11 July 2012.

.


6/10

Still, Shue suggests, the "ticking bomb" situation should be left in the

classroom, for ethicists and philosophers to ponder since it has nothing to do with the

real world. We all know that most real cases of torture have absolutely nothing to do

with the example given in the ticking bomb argument.

The basic ethical debate is often presented as a matter

of deontological versus utilitarian viewpoint. The first term can be defined as

the normative ethical position that judges the morality of an action based on the action's

adherence to a rule or rules whereas the latter is known as a philosophy that bases the

moral worth of an action upon the one that maximizes overall "happiness". On one side,

the utilitarian thinker may believe that when the overall outcome of lives saved due to

torture are positive, torture can be justified. The opposite view prohibits torture in all

cases and states that we may only treat humanity as an end and never as a means only.

In my opinion, torture cannot be used as a mean to impose an idea or a punishment

since it is not only morally wrong and illegal, but also out of the two-evil questioning.

On the other hand, even though interrogational torture should be considered morally

wrong, it might be necessary and excused in certain, specific and extreme situations. I

use the term excusedinstead ofjustifiedfor some reasons.

In the legal sense, a justification describes the quality of the act itself whereas an

excuse attaches to the status, capacity or relative incapacity of the accused

defendant. Torture cannot be justified because when you justify some act, you are

saying that, even if the act per se is wrong on a daily basis, your action cannot be

considered as such because it was the right thing to do in that particular situation

(torturing the terrorist in the ticking bomb scenario). If torture is justified, it means that

it may be considered right in a situation where the maximization of the overall

happiness is sought as the main goal. This is a wrong idea for two main reasons. First of

all, torture cannot be considered right no matter how good the intention is because

torture is a wrong action at all times. Second, by justifying an act, one is denying the

wrongness of the action at that particular situation, which goes against the first point I

made. However, there is a possibility that torture can be excused, because contrary to

justify, when you excuse something you acknowledge the wrongness of the action but at

the same time you declare that there was a strong reason in a no-way-out situationwhere torture had to be implemented. Justification is the act of meeting certain criteria


7/10

to explain actions. An excuse is a reason alleged for the doing or not doing a

thing. People are sometimes excused for acts that are ordinarily considered crimes either

because they had no intention of doing wrong, or because they had no power of judging,

and therefore had no criminal will. Nonetheless, excusing a particular violation does not

alter the legal prohibition, which I will talk about later.

If there are circumstances in which there is a two-evil questioning that

requires an obligatory response, committing an immoral action is inevitable and

excusable, and therefore, the best decision should be based on the one that has less

negative consequences, instead of doing nothing and be worse off. Torturing a terrorist

maybe wrong, but surely saving thousands of lives could outweigh this. Is torture a

barbaric practice? Yes it is, but killing innocent people when there is a chance to avert

such a scenario is a greater evil. However, even if torture is necessary in certain

situations, it should not become legal.

III. Torture limitations and illegality

Modern times have led to a sweeping international rejection of most if not all

aspects of the practice of torture. Even as many states engage it, few wish to be

described as doing so, either to their own citizens or to the international

community. Torture in the 21st century is prohibited under international law and the

domestic laws of most countries. It is considered to be a violation of human rights, and

is declared to be unacceptable by Article 5 of the UN Universal Declaration of Human

Rights. 6

In 1984, the United Nations held a convention on torture and cruel, inhuman and

degrading treatment (CID). What resulted was an international treaty signed by 74

countries, including the United States. The Convention against torture expressly forbids

committing acts of torture and outsourcing torture to other countries where torturous

methods are legal.7 It also established procedures for prosecuting anyone caught

'"Torture and Law."BBC News. BBC, n.d. Web. 11 July 2012.

.

("The Legality of Torture."HowStuffWorks. N.p., n.d. Web. 11 July 2012.

.


8/10

torturing another person. The Convention against Torture is not the only document that

forbids nations and individuals from practicing torture. In 1949, the Geneva

Convention also outlawed acts of torture toward prisoners of war. But do the torture

laws that protect enemy combatants captured under the normal rules of war extend to

terrorists?

Some states have defended the use of torture in particular cases, denied that

inflicting pain in those cases amounts to torture, or narrowed the definition of torture to

exclude many things that most people would class as torture. For example, immediately

following the Sept. 11, 2001, attacks, the federal government began debating the

standard rules of the Geneva Convention. Likewise, a 2002 US government Department

of Justice memorandum narrowed the definition of torture to include only the most

extreme pain. In an interview in 2001, Vice President Dick Cheney said that the U.S.

would use any means at its disposal in the war on terror. And ultimately, the Bush

administration concluded that the Geneva Convention didn't apply to enemies in the

War on Terror.

According to Shue, if we allow torture as general policy simply because we can

dream up a case (the ticking bomb example) where it would be justified, we are

practically guaranteed to allow cases where it is actually not excused. Thus torture

should be illegal, even if cases might possibly arise where it would be necessary. Any

relaxation of the prohibition on torture would lead to it becoming the norm, rather than

the exception. It would be better if a torturer tried to justify the necessity of a rare case

in front of a jury rather than running into countless of events where torture could be

used unjustifiably and possibly used on innocents. Legality should offer only a blurry

reflection of morality, not its mirror image. As the saying goes, "Hard cases make bad

laws." This not a weakness of the law but strength: that is how it can be both universal

and enforceable. Any license to torture will undoubtedly be abused.

In any case, it is important to take into account that there are likely to exist, in

the real world, one-off emergency situations in which arguably torture is, all things

considered, the morally best action to perform. Though I agree that torture should be

used in extreme cases, it still remains a certain relativity of what should be considered


9/10

an extreme case. This is closely related to the concept of justice and its implications.

The problem then becomes, where do we draw the line? There are many differences and

contradictions in opinions take place and may question the morality of this action.

I believe there is a thin line between torture and sadism that we all should be

able to identify. A clear example of this is shown in the movie Unthinkable, a

psychological thriller centered around a black-ops interrogator and an FBI agent who

press a suspect terrorist through torture into divulging the location of three nuclear

weapons set to detonate in the U.S.8 [Spoiler Alert] One of the most powerful and

critical scenes is where H., a black-op agent is trying to decide whether or not he

should torture the terrorists children in order to get him to say the last address of the

last bomb and asks agent Brody to make the decision for him. After a very hard time

thinking, she finally tells H. that he should not torture the kids and let bomb explode.

Their final decision receives different critics from spectators, but personally, I think it

was the best choice since everything possible was already done in order to protect the

innocent civilians. I do not agree with the decision of torturing someone else besides the

terrorist, let alone innocent children. If the terrorist decides not to talk after the torture,

then we would have already done everything in our hands to prevent the attack. It would

be inhumane to cause severe pain to an innocent in order to save someone elses life.

Once the duty of the government with the terrorist is done, there is nothing left to do

since it is impossible to try to avoid every single bad and suffering in the world.

Someone will eventually have to pay the price of such an evil event, like the detonation

of the bomb.

While government officials have argued that enhanced interrogation techniques

are necessary to protect American citizens, the effectiveness of such techniques has

been debated. According to a recent study, when torture is used to elicit information, it

is likely to be unexpectedly harsh yet ineffective.9

)"Unthinkable."IMDb. IMDb.com, n.d. Web. 11 July 2012.

.

*"Interrogational Torture: Effective or Purely Sadistic?"Interrogational Torture: Effective or Purely

Sadistic?N.p., n.d. Web. 11 July 2012.


10/10

IV. Conclusion

During numerous public appearances since September 11, 2001, I have asked

audiences for a show of hands as to how many would support the use of nonlethal

torture in a ticking-bomb case. Virtually every hand is raised.

-Alan Dershowitz

In conclusion, torture should be considered morally impermissible at all

times, since it is an action that goes against human rights and human values according

to the definition of morality itself. Nevertheless, the immorality of the action is not a

sufficient condition for it to be prohibited or unnecessary in extreme (but rarely)

circumstances when facing a two-evil dilemma. This is why I believe that torture, even

when considered wrong, it can be excused in some situations. However, it cannot be

justified because when you justify something, you are denying the wrongness of the

action that specific circumstance, whether in excusing, you accept the wrongness but

argue that there was no other way. Still, torture cannot be in any way legalized not only

due to the existent relativity and issues surrounding the term justice but also because

of the thin line that exists between torture and sadism. I believe that everyone should

have an idea about how much torture is too much torture. The main problem, as Shue

states, is not the rare case of the punishment of a torturer who was justified, but the need

to find ways to restrain totally unjustified torture.

The subject of torture causes our emotions to conflict with our reason. When

we have a choice between saving the life of an innocent person, and not harming a

terrorist or other wrongdoer, it is indecent to absolutely prefer the interests of the

wrongdoer. It is hard to say, but I believe that sometimes it is necessary to wrong in

order to do well. However, the main question here is, how far can we go? Apparently,

there is no definite answer, but I guess the only thing we can hope is not being in a

situation where we have to be the ones to make that choice.

Documents

Final Essay: Terrorism, law and morality