Can torture ever be justified to obtain essential information in the context of an imminent threat to national security? Christopher Horwood The BSIS Journal of International Studies, Vol 6 (2009) __________________________________________________________________________ The BSIS Journal of International Studies is published by the Brussels School of International Studies at the University of Kent. Your use of the journal indicates your acceptance of the Terms and Conditions of Use which state that, unless having received prior permission, you may only use content in the journal for personal, non-commercial use.

CAN TORTURE EVER BE JUSTIFIED TO OBTAIN ESSENTIAL INFORMATION IN THE CONTEXT OF AN IMMINENT THREAT TO NATIONAL SECURITY?

By: Christopher Horwood I. Introduction Since the September 11th, 2001 terrorist attacks in New York, the United States

government has waged a global campaign against al-Qaeda and other terrorist

organizations in order to ensure U.S. national security by disrupting these groups’

operations to the extent that they are unable to orchestrate another large-scale attack in

the United States or against its citizens.1 A crucial part of this “war on terror” has been

intelligence gathering: 2 gleaning information about possible future attacks, or the

identity and whereabouts of terrorist leaders, from individuals in U.S custody 3 or

through information-sharing with allies. In many cases, suspected terrorists have been

subjected to methods of interrogation which have been determined to constitute torture

in order to extract this allegedly necessary information. 4 The subjection of U.S.

1 “We will direct every resource at our command…to the destruction of the global terrorist network…We will starve the terrorist of funding, turn them against one another, drive them from place to place until there is no refuge or no rest. And we will pursue nations that provide aid or safe haven to terrorism.” Bush, G.W., “The President’s Address to a Joint Session of Congress” Washington, 20 September 2001. Available at: http://edition.cnn.com/2001/US/09/20/gen.bush.transcript/. 2 “Our government must have the very best information possible, and we will use it to make sure the right people are in the right places to protect our citizens.” Bush, G.W., “State of the Union Address” Washington, 28 January 2003. Available at: http://edition.cnn.com/2003/ALLPOLITICS/01/28/sotu.transcript/. 3 “..the most important source of information on where the terrorists are hiding and what they are planning is the terrorists themselves…our security depends on getting this kind of information.” Bush, G.W., “President Bush’s Speech on Terrorism” Washington, 6 September 2006. Available at: http://www.nytimes.com/2006/09/06/washington/06bush_transcript.html?_r=1&pagewanted=all. 4 Paust, J., Beyond the Law: The Bush Administration’s Unlawful Responses in the ‘War’ on Terror. New York: Cambridge University Press, 2007., p.17; Ross, J., “Black Letter Abuse: The US Legal Response to Torture Since 9/11” International Review of the Red Cross Vol.89 No.867,

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detainees, including those held on behalf of the U.S. or held secretly by the C.I.A., to

cruel, inhuman, and degrading treatment amounting to torture has emerged in a series

of scandals, with detainee abuse being systematic to the point that it is synonymous with

the administration of George W. Bush, his team of legal advisors in the Department of

Justice, and the “war on terror” itself.

Several of those responsible for authorizing torture (although they rarely use that

term) have asserted that its use was vital to preventing another “major casualty attack”5

on the U.S. since 2001. They claim that the information yielded from “enhanced

interrogation techniques” (the preferred euphemism among the administration for

measures amounting to torture) enabled U.S. authorities to thwart attacks that would

have killed hundreds or thousands of Americans. This kind of argument to justify

torture may be politically or morally compelling to certain societies but, as discussed

below, is the product of flawed logic based on practically impossible premises, and is

never sufficient to legalize torture.

Forgetting for a moment that in some cases where torture is alleged to have

yielded intelligence crucial to averting attacks, these claims have been highly contested,6

September 2007, p.572; Ginbar, Y., Why Not Torture Terrorists. New York: Oxford University Press, 2008., pp.296-297; Nowak, M., “What Practices Constitute Torture: US and UN Standards” (2006) 28 Hum. Rts. Q., p.839 5 This particular expression was used by former Vice President Dick Cheney in an interview on CNN in March 2009, in which he defended the enhanced techniques and implied that President Obama was placing America at risk by rescinding authorization for the methods. See: Danner, M., “The Red Cross Torture Report: What It Means” New York Review of Books, Vol.56 No.7, 30 April 2009. See also Bush, G.W., supra note 3: “This program has been and remains one of the most vital tools in our war against the terrorists…Were it not for this program, our intelligence community believes al Qaeda and its allies would have succeeded in launching another attack against the American homeland.” This speech made thirteen separate references to the measures protecting or saving innocent American (or other) lives or al Qaeda’s intent to kill innocents. 6 In the case of Abu Zubaydah, one of the first detainees upon whom “enhanced interrogation” was used, an FBI interrogator who questioned him has claimed that most of the intelligence alleged to have been gained through enhanced interrogation of Zubaydah was in fact obtained

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this analysis will focus instead on whether uses of torture to obtain such information

may ever be justified within the framework of international human rights law. The

following section will illustrate that categorically it is not. This essay will then consider

both standard arguments and interpretations of international law, and those forwarded

by the Bush administration, to justify the use of torture, and attempt to point out that the

flaws therein not only do not justify enhanced interrogation, but in fact reinforce the

logic behind the non-derogability of the prohibition on torture. Arguments for the

perceived necessity of enhanced interrogation amounting to torture may carry traction

morally or politically, and hinge on a particular understanding of national security and

executive prerogatives, not to mention the perfect scenario. Ultimately such arguments

fail to supersede the universal prohibition on torture; however, their appeal, particularly

in times of crisis, must be borne in mind in any discussion of the illegality of torture, for

the potential of this kind of rhetoric to tempt officials into engaging in or enabling

torture should reinforce the non-derogable nature of states’ duty not to torture.

through traditional interrogation of Zubaydah and other captives. See: Soufan, A., “My Tortured Decision” The New York Times 23 April 2009, p.A27. Mr. Soufan further asserts that instances in which enhanced interrogation “backfired” are still “classified”. It has also been claimed that Mr. Zubaydah’s position as a “high-ranking al Qaeda official” was “grossly and systematically exaggerated by government officials, from President Bush on down.” (Danner, M., “US Torture: Voices from the Black Sites” New York Review of Books Vol.56 No.6, 9 April 2009; also: Mickum, B., “The Truth About Abu Zubaydah” The Guardian 30 March 2009).

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II. Torture in International Law

i. Relevant Provisions

There exists “a broad, normative consensus over prohibition of torture by

states”7 in international law; the ban is articulated in several international and regional

instruments. This section will explain the treatment of torture in these instruments.

Article 5 of the 1948 Universal Declaration of Human Rights (UDHR) expresses

an individual’s right to not suffer torture or other forms of mistreatment.8 While not

hard law, the UDHR helps to establish a broad international commitment against torture

almost as old as the UN itself. Article 7 of the International Covenant on Civil and

Political Rights (ICCPR) reaffirms the UDHR’s prohibition, adding specific forms of

mistreatment,9 and specifies torture as non-derogable even in the face of existential

threats to a state or national emergencies.10

The UN Torture Convention (CAT) is a comprehensive treaty addressing torture

and other mistreatment, intended to make the eradication of torture “more effective”.11

In the present analysis it is treated as one of the most authoritative international legal

instruments as it enjoys broad membership12 and actually defines torture;13 further, it is

7 Steiner, P., et. al., International Human Rights in Context: Law, Politics, Morals. New York: Oxford, 2007, p.224. 8 Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948): “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” 9 International Covenant on Civil and Political Rights (ICCPR), adopted 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), Article 7. “Medical or scientific experimentation” without consent were added as specifically proscribed treatment. 10 ICCPR, id., Articles 4.1 and 4.2. 11 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UN Torture Convention), adopted 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987), Preamble. 12 At the time of writing, the Convention has 146 States parties; the current status of signature, accession, and ratification can be found at: http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-9&chapter=4&lang=en.

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monitored by a body of experts (the UN Committee Against Torture14) that responds to

state reports and may examine individual complaints, meaning that the definition of

torture can be clarified through the Committee’s findings.

The Torture Convention defines as torture acts inflicted intentionally by an

official or an individual acting in official capacity, which cause severe physical or mental

pain or suffering, for the purposes of obtaining information or a confession, punishing,

or coercing the victim or a third person, or for discrimination.15 This definition is

particularly important for the present discussion, considering that the use of torture to

obtain essential information is precisely the scenario envisaged. Article 2.2 explicitly states

that parties may not invoke exceptional circumstances (such as averting an imminent

threat to national security) to justify torture; 16 denunciation of the Convention is

however permitted with a year’s written notice.17 Removal or refoulement of persons to

states where they may be tortured is also proscribed,18 meaning any attempt by a party

to outsource torture would be in violation of the Convention.

Regional human rights instruments similarly prohibit torture. The European

Convention on Human Rights (ECHR) forbids torture under Article 3, 19 with the

European Court of Human Rights (ECtHR) having the authority to hear individual

complaints; the European Torture Convention further establishes a European Torture

13 Convention Against Torture, Article 1.1. 14 Convention Against Torture, Articles 17-21. 15 id., Article 1.1 16 id., Article 2.2 17 id., Article 31 18 id., Article 3 19 European Convention for the Protection of Human Rights and Fundamental Freedoms, signed 26 4 November 1950, 213 UNTS 221, ETS 5 (entered into force 3 September 1950). Article 3.

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Committee to conduct state visits 20 and compile reports 21 in order to ensure that

individuals are well protected against torture or other mistreatment. The American

Convention on Human Rights protects individuals from torture under article 5.2,22 while

the Inter-American Convention to Prevent and Punish Torture reflects many of

provisions of the UN Torture Convention,23 but considers a broader range of purposes

in its definition of torture. 24 The African Charter on Human and People’s Rights

prohibits torture along with other forms of mistreatment, slavery, and the slave trade

under Article 5.25 Finally, several instruments affirming the non-derogable prohibition

on torture have been adopted by Arab and Islamic states.26

Prohibitions on torture in international humanitarian law (IHL) and international

criminal law (ICL) further reinforce the notion of the universal impermissibility of

torture and merit brief mention here. The 1949 Geneva conventions prohibit torture

under Common Article 3, and each convention refers to torture as a “grave breach” of its

20 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, signed 26 November 1987, 2206 UNTS 230, Doc. No. H(87)4, ETS 126 (entered into force 1 February 1989). 21 id., Articles 10-12. 22 American Convention on Human Rights, signed 22 November 1969, 1144 UNTS 123, OASTS 36 (entered into force 18 July 1978). Article 5.2 23 id. Such as the impermissibility of exceptional circumstances as a justification for torture (Article 5) and the prohibition of extradition of persons to states where they may be tortured (Article 13). 24 id., Article 2.1. The phrase “for any other purpose” is broader than the extraction of information or confession, punishment, coercion, or discrimination specifications of the Torture Convention. 25 Charter on Human and People’s Rights, adopted 27 June 1981, OAU Doc. CAB/LEG/67/3 rev.5 (entered into force 21 October 1986). 26 See: Cairo Declaration of Human Rights in Islam, 5 August 1990, U.N. GAOR , World Conference on Human Rights, 4th Session , Agenda Item 5, U.N. Doc. A/Conf.157/PC/61/Add.18 (1993), Article 20; Arab Charter on Human Rights, adopted 15 September 1994, Articles 4(c) and 13; League of Arab States, Arab Charter on Human Rights, adopted 22 May, 2004 (entered into force 15 March 2008), Articles Articles 4.2 and 8. All documents accessed online at the University of Minnesota Human Rights Library: http://www1.umn.edu/humanrts/. Note that these instruments have all been criticized for their lack of enforcement mechanisms.

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provisions.27 The Rome Statute of the International Criminal Court (ICC) mentions

torture as an offence that could constitute a crime against humanity28 or a war crime,29

under certain conditions.30

Based on this broad recognition by states of the torture prohibition and

individuals’ right to be protected from torture in all contexts, the argument may be

made that sufficient opinio juris exists for the prohibition to be considered as customary

international law and a jus cogens norm, 31 “from which no derogation is permitted”32.

Even if it falls short of jus cogens status, the provisions and obligations imposed by the

various international and regional human rights mechanisms against torture would

appear to make it practically impossible for a state party to any of these treaties to be

justified in committing or tolerating torture in most scenarios; 33 signatories to the

Torture Convention especially would be precluded from recourse to torture in the

context currently under consideration, as their purpose would be to obtain information,

and their commitment to uphold the torture prohibition cannot be derogated for any

purpose, especially not a “threat of war”.34 It is virtually inconceivable that any state,

27 Steiner, P., et. al., supra note 7, pp.227-228. 28 Rome Statute of the International Criminal Court, adopted 17 July 1998, U.N. Doc. 2187 UNTS 90 (entered into force 1 July 2002), Article 7.1(f). Article 7.2(e) defines torture as “the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused.” 29 id., Article 8.2(a)(ii) 30 A crime against humanity occurs when torture or other acts are “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack” (Article 7.1); a war crime must be “committed as part of a plan or policy or as part of a large-scale commission of such crimes” (Article 8.1). 31 Ross, J., supra note 4, p.569. 32 as described in Article 53 of the Vienna Convention on the Law of Treaties, signed 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) 33 The exception here would be for certain Asian and Pacific states that have not ratified the Torture Convention, and lack a regional human rights or torture convention prohibiting the practice. 34 UN Torture Convention Article 2.2

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whether bound by the above-mentioned agreements or not, would actually assert the

legality of torture,35 even in a compelling situation. Rather, it is far more likely that

torture would be denied, called by another name, or covered up; this too may indicate

the international consensus against the use of torture.

ii. What is ‘Torture’?

It is important for this analysis to emphasize the difference between torture and

the other associated forms of (mis)treatment articulated in international human rights

instruments: cruel, inhuman, and degrading treatment (CIDT). As will be seen in

section IV, the Office of the Legal Counsel Memoranda that attempted to justify

enhanced interrogation techniques sought to raise the definitional threshold of torture

precisely because if CIDT could be established as “far removed” from torture, and

torture defined in a limited way, more extreme interrogation techniques would be

available to US interrogators.36

Torture and CIDT are not necessarily exclusive categories. As Manfred Nowak

has pointed out, in the Greek Case, the European Commission for Human Rights

emphasized that torture exists where CIDT is employed intentionally, and inflicts severe

pain, for a particular purpose.37 The ECtHR jurisprudence on the other hand, has

35 Bagaric, M. & Clarke, J., “Not Enough Torture in the World? The Circumstances in Which Torture is Morally Justifiable” (2004-2005) 39 U.S.F. L. Rev p.581. The authors note that torture “is not officially sanctioned by the domestic laws of any state”. 36 Steiner, P., supra note 7, p.254; also: Nowak, M., supra note 4, pp.811-817 (explaining US legal re-definitions of torture); and: Rouillard, L., “Misinterpreting the Prohibition of Torture Under International Law: The Office of the Legal Counsel Memorandum” (2005-2006) 21 Am. U. Int’l L. Rev., p.38 (pointing out that “measures short of physical or psychological violence” may be acceptable during emergencies). 37 Nowak, M., id., p.820. Another important feature is that this severe violence must be conducted on an individual in a “state of powerlessness”, ie. in the custody of state authorities.

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indicated the severity of treatment as the defining characteristic of torture.38 Nowak

asserts that the drafting history of the UN Torture Convention indicates that “..the UN

wished to follow the approach taken by the European Commission over the approach

taken by the Court”39 meaning that the purposes listed in Article 1 of the Torture

Convention will be key to determining whether the infliction of severe pain constitutes

torture.40 This approach appears to have been confirmed by subsequent reports of the

Torture Committee, 41 and the evolution of the definition of torture through

jurisprudence since the adoption of the Torture Convention.42

This distinction is important, because the Torture Convention’s approach

appears to indicate that any justification of torture by states parties in the context

currently envisioned would be impossible: the prohibition on torture is non-derogable,

and the presence of the purpose (obtaining information) suggests that the employment

of severe physical or psychological force to that end would be per se torture, and

therefore never permitted. States seeking fewer constraints on coercive interrogation

may thus favor the early ECtHR interpretation of torture; indeed, this was one of the

strategies used by the Office of the Legal Counsel lawyers to justify America’s enhanced

interrogation program.43

38 id.: “..the Court concluded that severity of suffering, and not the specific purpose of the actor, as assumed by the Commission, was the decisive criterion for distinguishing torture.” 39 id., p.820-821. 40 id., p.822: “Whether cruel or inhuman treatment can also be qualified as torture depends on the fulfillment of the other requirements in Article 1 CAT; mainly whether inhuman treatment was used for any purpose spelled out therein.” Also, 836-837, 839. 41 id., p.828: “There is no evidence indicating that the Committee views severity of suffering as a criteria for distinguishing torture from cruel and inhuman treatment.” 42 Rouillard, L., supra note 36, pp.27-28. 43 id, pp.23-28; Clarke, B., “Torture, Terrorism, and the Rule of Law”, Ch.2.3 in: Imre, R., et. al., Responding to Terrorism: Political, Philosophical, and Legal Perspectives. Aldershot: Ashgate, 2008, p.106.

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For the purposes of this essay, however, the Torture Convention’s understanding

of torture and states parties’ obligations will be treated as the most authoritative

definition, on the basis of the treaty’s broader application and the anachronistic nature

of the ECtHR’s decision in Ireland v. UK.44 The distinction in interpretation may in fact

be irrelevant, due to the relatively wide adoption of the Torture Convention, particularly

by the states actually subject to the jurisdiction of the ECtHR;45 further: “There are good

reasons to believe that the Court today would consider similar treatment torture”.46

This means that states employing measures short of torture for a specific purpose within

the European Court’s older interpretation would still be committing (unjustifiable)

torture in the eyes of the Torture Committee. A question may remain surrounding the

permissible conduct for certain Asian states that have not ratified the Torture

Convention and lack a regional human rights instrument forbidding torture; however,

as mentioned earlier, it is hard to imagine any state actually claiming the legality of

torture, or being able to escape broad international condemnation for violating the norm

against torture if it attempted to do so.

III. National Security, the Ticking Bomb, and the Necessity Argument

National security occupies a special place in international law and international

relations; invoking it is often a defensible option for governments of states that wish to

undertake actions otherwise constrained by domestic or international law. For example,

the United Nations Charter explicitly proscribes the use of force in international

44 Rouillard, L., id., p.25. 45 The exception is Moldova. For the list of parties to the Torture Convention, see: supra note 12. The list of parties to the ECHR (and additional protocols) can be found at: http://conventions.coe.int/Treaty/Commun/ListeTableauCourt.asp?MA=3&CM=16&CL=ENG. 46 Nowak, M., supra note 4, p.837; also: Rouillard, L., supra note 36, p.36.

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relations,47 but an exception is made in the case of states acting in self-defense “if an

armed attack occurs”.48 National security is often understood as an entirely sovereign,

domestic matter, in which other states are forbidden from interfering unless authorized

to do so by the Security Council.49

The circumstance envisioned in this paper is an “imminent threat to national

security” which “essential information” might avert. The classic scenario here is that of

the “ticking bomb”; an example of which is offered by Bagaric and Clarke:

A terrorist network has activated a large bomb on one of hundreds of commercial planes carrying over three hundred passengers that is flying somewhere in the world at any point in time. The bomb is set to explode in thirty minutes. The leader of the terrorist organization announces his intent via a statement on the Internet. He states that the bomb was planted by one of his colleagues at one of the major airports in the world in the past few hours. No details are provided regarding the location of the plane where the bomb is located. Unbeknown to him, he was under police surveillance and is immediately apprehended by the police. The terrorist leader refuses to answer any questions of the police, declaring that the passengers must die and will do so shortly.50

The conclusion of course is supposed to be a “no-brainer”: 51 by violating the self-

proclaimed terrorist’s human right not to be tortured, the authorities may extract the

information necessary to uphold the human right to life52 of hundreds of innocent

civilians. Acts of terrorism are politically sensitive because they are carried out against

civilians, whom governments have a duty to protect; a successful attack may be seen as

47 UN Charter, Article 2.4 48 id., Article 51 49 id., Article 2.7 50 Bagaric, M. & Clarke, J., supra note 35, p.583. 51 This expression was famously used by Dick Cheney to explain the ease of the decision to water board terrorist suspects to save American lives. See: Sevastopulo, D., “Cheney Endorses Use of Simulated Drowning” The Financial Times 26 October 2006. Available at: http://www.msnbc.msn.com/id/15433467/. 52 As articulated for example, ICCPR, supra note 9, Article 6.1: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”

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a dereliction of duty and weaken a government’s support. They are morally sensitive

because the civilian targets are seen as innocents, and the terrorist perpetrators as evil;53

appearing to care about the protections offered to suspected (often foreign) terrorists

than about the right to life of innocent citizens 54 can be politically damaging to a

government (and perhaps morally problematic on an individual level). It is thus likely

that there will always be appealing and influential voices in positions of leadership

asserting both the “necessity” of exceptional measures such as torture to ensure self-

defense,55 preserve security from terrorist attacks, and protect innocent lives; as well as

the primacy of ensuring security over international obligations like human rights

protection.56

While this paper’s primary focus is human rights law which, as explained in the

last section, appears categorically to preclude a state’s employment of severe pain or

suffering against a person in its custody to obtain information, it is perhaps important

here to note some of the flaws in the “necessity” argument for employing torture in a

ticking-bomb scenario, in order to illustrate that such a justification is in fact much

weaker than simply choosing the lives of three hundred innocents against the rights of a

criminal.

53 Rouillard, L., supra note 36, p.40 54 Consider the remarks of then-Senator Barack Obama following the passage of the Military Commissions Act in 2006, anticipating Republican criticism of Democrat softness on national security: “we will be criticized as caring more about the rights of terrorists than the protection of Americans.” "Statement on Military Commission Legislation: Remarks by Senator Barack Obama," September 28, 2006, quoted in Danner, M., supra note 6. 55 Paust, J., supra note 4, p.29 56 Clarke, B., supra note 43, p.119

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Perhaps the most important point is that there is no direct causal link between

the act of torture and the thwarting of the attack.57 Torturing an individual is not the

same as grounding and evacuating a plane, or defusing a bomb. The authorities may

torture and the plane still blow up; 58 they may succeed in getting the desired

information and the plane may still blow up;59 equally, they may choose not to torture,

and the attack fail or be thwarted.60

Another question surrounds the ability to extract the information; if this is truly

an exceptional case, will first time torturers be able to torture effectively?61 States

cognizant of the universal prohibition on torture may take steps to circumvent their

human rights obligations, such as using “enhanced techniques” whose status as

“torture” can be challenged by the state; however, as the Bush administration experience

shows, such measures may not be effective in the situation described above. In a ticking

bomb situation, it is doubtful that there would be sufficient time to waterboard the

detainee dozens or hundreds of times,62 or rendition them to another state more well-

versed in torture. Should a state then research, practice, and institutionalize its own

57 Gaeta, P., “May Necessity Be Available As a Defence for Torture in the Interrogation of Suspected Terrorists?” (2004) 2 J. Int’l Crim. Just. 791. 58 For example, the suspect might not know which airport or plane the bomb is on (his colleague planted the bomb), or might lie to divert the authorities. 59 For example, the authorities might not be able to ground the plane in time, or mistranslate the suspect’s statement and ground the wrong plane. 60 For example, the bomb could fail to detonate, or a passenger, crew member or baggage loader may have noticed the device and reported it. Perhaps the attack is a hoax and the authorities torture someone who, while certainly a criminal, never had the intent or the means to kill people. 61 Shue, H., “Torture In Dreamland: Disposing of the Ticking Bomb” (2005-2006) 37 Case W. Res. J. Int’l L. 236: “Torture is not for amateurs – successful torturers need to be real ‘pros’, and no one becomes a ‘pro’ overnight.” 62 Water boarding is perhaps the most controversial measure known to have been directly employed by US interrogators, and has been classified as torture; recent revelations that Abu Zubaydah and Khalid Sheikh Mohammed were subjected to this method hundreds of times each raise questions about its efficacy (see: Shane, S., “2 Suspects Waterboarded 266 Times” New York Times 20 April 2009; and: Soufan, A., supra note 6.)

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brutal, effective torture regime in order to be prepared to employ it rapidly and

effectively in a hypothetical, exceptional case?63 This would seem to require torture

techniques to be refined in less clear-cut and “necessary” cases, a point which weakens

the justification of its use. It is unlikely that the state in question will be able to employ

torture only in the isolated ideal case; rather the institutionalization and

bureaucratization of torture means that it will be employed in situations where there is

only moderate suspicion rather than certainty that a captive has information. This point

is the basis of the argument, frequently voiced by critics of the ticking bomb justification,

that permitting torture in once case will lead to a “slippery slope” of abuse in less ideal

circumstances.64 Indeed, it is precisely because “torture by wise, self-restrained angels”

is a fantasy65 (some have argued a fantasy enabled by liberalism66) that it is important to

affirm the non-derogability of the anti-torture norm.

The criticisms of using the ticking bomb scenario to justify torture can be applied

to its use against almost any other conceivable “imminent threat”. Torturing a captured

foreign military leader for information regarding an imminent attack (on the military or

on civilians) may have a higher likelihood of yielding the necessary information (by his

or her visible rank or through military intelligence, the captors may be more certain that

he or she has the information), but the causation would still be logically problematic, and

unjustifiable within the parameters established in the torture convention. The politics of 63 Shue, H., supra note 61, p. 237. Shue notes that the ticking bomb hypothesis abstracts “from the social basis – the institutional context – necessary for the practice of torture.” Also, Ginbar, Y., supra note 4, p.345 64 Gaeta, P., supra note 57, p.792; Nowak, M., supra note 4, p.837.; Clarke, B., supra note 43., pp.120-121; Ginbar, Y., id., p.66. 65 Shue, H., supra note 61, p.235 66 For example, see: Luban, D., “Liberalism, Torture, and the Ticking Bomb” (2005) 91 Va. L. Rev. 1436: “..liberalism’s insistence on limited governments that exercise their power only for instrumental and pragmatic purposes creates the possibility of seeing torture as a civilized, not an atavistic, practice, provided that its sole purpose is preventing future harms.”.

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fear motivating this vision of “necessary” torture could even escalate the threat to an

imminent nuclear attack,67 truly a threat to a nation’s survival, to gain support for the

use of torture, but changing the premise to something more extreme merely obfuscates

analysis of the flawed causation and the conclusion.68 The proposition that torture may

directly effect the aversion of an attack is tenuous at best.

A final point on the necessity justification of torture and the relationship between

international criminal law (ICL) and international human rights law: one scholar posits

that it is conceivable that an agent who engages torture as part of an attempt to avert an

attack could be exonerated within ICL or domestic law,69 as a kind of ex post facto

justification for the acts committed.70 The basis of the agent’s defense could be necessity,

for example in circumstances of “duress by coercion”;71 however, the author dismisses

the applicability of a necessity defense to a ticking bomb situation.72 This discussion is

67 Indeed, Cheney has mooted just such a possibility, suggesting that successful prevention “depends [on] whether or not we keep in place policies that have allowed us to defeat all further attempts, since 9/11, to launch mass-casualty attacks against the United States...” Danner, M., supra note 5. 68 Less extreme justifications for enhanced interrogation indeed have been given, such as gathering information on terrorist leaders (see: Bush, supra note 3: Deviating from the preventative use of torture, Bush justified the use of the techniques on Abu Zubaydah on the basis that it yielded “information that helped us find and capture more of those responsible for the attacks on September the 11th”). But as Luban points out: “..would capturing Osama bin Laden demonstrably save a single human life?” (Luban, supra note 66, p.1443). The shift from torture employed to prevent to torture employed for the sake of justice is notable insofar as it represents a slide down the slippery slope, but as the objective of the treatment is information, it is still constitutes proscribed behavior within the Torture Convention. 69 Gaeta, P., supra note 57, pp.788-789. The author notes that while the Torture Convention requires “some states expressly to rule out necessity as an available defence”, Article 31(1)(d) of the ICC Statute “expressly provides that this defence is available to persons accused of one of the crimes falling under the jurisdiction of the Court.”. For a discussion of the defence of necessity in ICL, see also, Ginbar, Y., supra note 4, p.304-338. 70 Rouillard, L., supra note 36, p.38: “..this defense would have to be proven after the fact..” 71 Gaeta, P., supra note 57, p.790. Gaeta gives the example of an agent “..forced at gunpoint, by a colleague, to torture a detainee in order to obtain information..”, asserting that it may be an acceptable defense in domestic criminal law. 72 id., p.791: “..the strict factual requirements of this defence can never really apply to such extreme situations as those described in the ticking bomb paradigm.”; The necessity defense, apparently

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important for human rights law, which focuses on state as opposed to individual

obligations,73 largely because it does not affect in any way the unconditionality of the

torture prohibition. 74 The ban on torture remains absolute regardless of perceived

“necessity”75 and a state is obliged to prosecute those conducting or authorizing it,76 and

offer some from of redress to the victim. 77 The state in question would have to

acknowledge and punish the violation in order to comply with its obligations under

international law.78 At the intelligence and law enforcement level, a failure to do so

might be interpreted as an acceptance of the false causal link between the interrogator’s

belief that a suspect possessed essential information, the act of torture, and the provision

of information. This might in turn encourage future interrogators with similar

suspicions to engage in torture (the slippery slope feared by many commentators79),

weakening the state’s ability to uphold its human rights obligations. The non-

derogability of torture prohibitions in international human rights law is essential to

preventing this kind of false logic being employed to justify torture in a special case, and

triggering a chain reaction of systematic mistreatment.

affirmed by Israel’s Supreme Court, has also been rejected by the Committee Against Torture (see: Nowak, M., supra note 4, p.827). 73 Gaeta, P., id., p.789. 74 Rouillard notes that the successful invocation of a necessity defense by an agent “does not add any other normative value” to the torture prohibition. (Rouillard, L., supra note 36, p.38). 75 Paust, J., supra note 4, p.29: “..it is widely known that alleged necessity does not permit violations of relevant Geneva Law (such as common Article 3), the customary laws of war reflected therein, and nonderogable treaty-based, customary, and peremptory human rights.” 76 Duffy, H., The ‘War on Terror’ and the Framework of International Law. Cambridge: Cambridge University Press, 2005., p.354. 77 Paust, J., supra note 4, pp.30-31. 78 Clarke, B., supra note 43, p.92. 79 supra note 64

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IV. The Bush Administration’s Faulty Logic

This section will briefly consider the strategies of the Bush Administration’s

attempts to justify the enhanced interrogation regime, and treat them as indicative of the

absolute and non-derogable quality of the torture prohibition in international human

rights law, despite the fact that the program was in violation of that law.

In the years following the September 11th, 2001 terrorist attacks on the United

States, the US government repeatedly affirmed its recognition of the anti-torture norm as

well as its commitments to uphold it.80 However, certain individuals and institutions,

notably in the Department of Justice Office of the Legal Counsel, simultaneously used

several methods to enable more coercive interrogation techniques, some of which have

long been considered torture, in the war on terrorism by reducing the state’s obligations

comply with the universal torture prohibition. These steps, when acknowledged, were

justified in the name of national security and obtaining intelligence crucial to preventing

future attacks.81

The first strategy was to reinterpret the applicability of treaties and customary

international law prohibiting torture and cruel, inhuman, or degrading treatment. Thus

the ICCPR and the Torture Convention were claimed inapplicable to non-US citizens82

or outside US territory. 83 The Torture Convention was asserted as inapplicable to

80 For example, Bush, G.W., supra note 3: “I want to be absolutely clear with our people and the world. The United States does not torture. It's against our laws, and it's against our values. I have not authorized it, and I will not authorize it.”; also: Bush, G.W., “Statement on United Nations International Day in Support of Victims of Torture” 28 June 2004: “America stands against and will not tolerate torture.” (available at: http://www.america.gov/st/washfile-english/2004/June/20040628140800LShsaN0.3632013.html) 81 supra notes 3 and 6. Ginbar, Y., supra note 4, p.225, also cites the Schlesinger report’s suggestion of a connection between ticking-bomb scenarios and the justification for harsh treatment. 82 Ross, J., supra note 4, p.574-576; Ginbar, Y., id., pp.230-234 83 Ginbar, Y., supra note 4, p.230.

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“unlawful combatants”84 on the basis of the law of armed conflict being a lex specialis;85

but detainees designated as unlawful combatants were then alleged to be ineligible for

the protections contained in Common Article 3 of the Geneva Conventions!86 It was

argued that the authority of the President of the United States was not subject to or

constrained by customary international law.87 The sum effect of these interpretations

has been to undermine the very aim and purpose of the international law prohibitions

on torture.88

The second approach to freeing the state’s hand to use illicit interrogation

methods in the obtainment of information was to reinterpret the United States’

obligations under human rights treaties. Part of the US strategy to redefine torture,

discussed below, involved interpreting the Torture Convention in such a way that a

sharp distinction was drawn between torture and other forms of cruel, inhuman or

degrading treatment, and claiming that the latter procedures were more available to US

interrogators,89 a position clearly in tension with the object and purpose of the treaty as

it is contradicted by the drafting process, 90 as well as statements by the Torture

Committee. The Office of the Legal Counsel lawyers further asserted limited obligations

on the basis of US reservations entered to the Convention at ratification, with the same

84 id. 85 Ross, J., supra note 4, p. 576; Steiner, P., et. al., supra note 7, p.260. 86 id., p.571 87 Ginbar, Y., supra note 4, p.231, 235-237, 248-249; also, Duffy, H., supra note 76, p.354; Steiner, P., et. al., supra note 7, p.255. 88 Clarke, B., supra note 43, p.107-108; Ross, J., supra note 4, p.574: The rejection of the extraterritorial application of the ICCPR meant “effectively permitting abroad what would be unlawful if committed in the United States.” 89 Steiner, P., et. al., supra note 7, p.254. also: Memorandum from Jay C. Bybee (Bybee Memo), Department of Justice Office of the Legal Counsel, to Alberto R. Gonzales, Counsel to the President, Re: Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A 1 August 2002. 90 Nowak, M., supra note 4, p.813.

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effect of undermining the purpose of the treaty.91 Article 3 of the Torture Convention

was also interpreted in such a way that the US was not restrained from returning or

refouling detainees to states where it was probable that they would be tortured. 92

Finally, the 2006 Military Commissions Act is said to have been an attempt to reassert

the legality of the heavily criticized methods employed since 200193 and to block “all

legal actions seeking relief, including redress for mistreatment”,94 a direct breach of

international human rights obligations.95

The final strategy to weaken international human rights obligations was to

attempt to redefine torture in such a restrictive way that more methods could be justified

as permissible. Perhaps the most oft-cited single document dealing with US enhanced

interrogation after 9/11 is the infamous Bybee Memo, which raised the threshold of

mental96 and physical violence97 required to constitute torture; this was particularly

important because of the US position that the severity of force employed in an

interrogation is the determinant of torture, as opposed to the aforementioned position of

the Torture Committee that the purpose of inflicting severe pain is the key determinant.

As discussed earlier, the logic behind the memo’s conclusions was derived from the

ECtHR’s decision in Ireland v. UK that certain methods did not amount to torture,98 an

91 id., p.836 92 Ross, J., supra note 4, p. 574-575. 93 id., p.584. The most notable point vis-à-vis torture is the elevation of “the threshold for ‘serious’ pain…to an ‘extreme’ pain threshold.” 94 id., p.589. 95 id., p.582. 96 Bybee Memo, supra note 88. Also: Steiner, P., et. al., supra note 7, p.254: The memo indicates that mental harm must be lasting, such as the development of a mental disorder, and that the infliction of such harm must be intentional. 97 id.: “The victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant bodily function will likely result” 98 Clarke, B., supra note 43, p.106; Rouillard, L., supra note 36, pp.23-28.

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interpretation that overlooks evolutions in the threshold for torture in the interceding

twenty-four years.99 The position articulated in the Bybee Memo ultimately precipitated

the authorization of measures long treated as torture in US and international law100 such

as waterboarding.101

V. Conclusions

The fact that the Office of the Legal Counsel memos and U.S. legislation often

focused as much or more on obstructing official accountability for acts amounting to

torture102 than making the case for its legality, and the fact that none of the enhanced

interrogation is known to have been conducted inside of U.S. territory, may be seen as

acknowledgement by the administration that the methods being employed would in fact

be interpreted as torture and therefore in violation of international law. That no

derogation from the treaties themselves was claimed by the administration further

illustrates that derogation was not possible, even by the contrived logic constructed to

permit enhanced interrogation. The treaty and customary prohibitions on torture are so

comprehensive that it was far easier for Bush administration lawyers use various

strategies to attempt to limit those rules than to assert the legality of torture: by

redefining “torture”, claiming that the treaties did not apply to certain circumstances,

99 Rouillard, L., id., p.36: “This evolving threshold continues to be interpreted on the merits and circumstances of each and every case...interpretations of whether actions and conduct constitute torture must adapt to the times. The ceiling of tolerated actions has been lowered substantially since the first determination in Ireland.” 100 Danner supra note 5; Ross, J., supra note 4, p.572: “..the memo defined torture so narrowly as to exclude many practices commonly recognized as torture.” 101 Ginbar, Y., supra note 4, p.297 102 Danner, supra note 6: He refers to attempts to form a “golden shield” to “protect CIA officers from prosecution.”; also supra notes 93-95 , regarding the Military Commissions Act blocking redress.

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reinterpreting US obligations as a party to those treaties, and asserting supreme

presidential authority unconstrained by customary international law.

All of these maneuvers were promoted as vital to ensuring national security from

the threat of terrorism. While creative, they ultimately fail in the face of the jus cogens

prohibition on torture regardless of the circumstances under which it is employed, and

authoritative assessments that U.S. interrogation tactics indeed constituted torture. The

disputed value of the intelligence gained from torture, and the criticisms of the

attempted portrayal of Abu Zubaydah’s subjection to enhanced interrogation as a kind

of success of torture to obtain crucial intelligence to avert threats (not necessarily

imminent) to national security,103 weaken the moral and political arguments for the

notion of “justifiable” torture to avert an imminent threat to national security. The great

number of individuals without such essential information who suffered torture or cruel,

inhuman or degrading treatment in US custody (or rendered by the US to custody of

torturers) illustrates the possibility for a justification for torture based on such a threat to

rapidly deteriorate and facilitate torture in other contexts.104 These factors appear to

lead to the conclusion that non-derogable prohibitions on torture in both treaty and

customary human rights law are desirable and necessary, and acknowledged even by

states who wish to legalize coercive interrogation methods but refrain from explicitly

authorizing torture.

This illustrates the other conclusions of this paper: that the prohibition on torture

is absolute in all cases; this norm is broadly recognized in domestic state laws and

practice, and international human rights, humanitarian, and criminal laws; and that the

103 Bush, G.W., supra note 3; also see supra note 6. 104 Supra note 63.

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relationship between torture and imminent threats to national security is sufficiently

problematic to preclude the justifiable use of the former to curtail the latter, despite the

special sovereign powers accorded to states in the exercise of self-defense and national

security. Indeed the norm that states’ obligation not to conduct or enable torture is

absolutely non-derogable in every conceivable situation is especially vital in the context

of such a threat. This is because the uncertainty that torture will effect the prevention of

an attack undermines the common assertion that it may be necessary. Further, the

apparent contradiction between the rarity and relative implausibility of “perfect”

circumstances under which such “justifiable” torture is typically conceived, such as

ticking bomb scenarios, on the one hand, and the probable requirement of a well-

developed, institutionalized torture regime to have the capacity to be able to torture

effectively in such a context on the other, portend the application of torture in less

perfect situations. This practically inevitable broadening of the use of torture surely

weakens the irresponsible and flawed argument, derived from an extremely isolated

and unrealistic context, that torture may be a necessary and justified means to avert

imminent security threats. The fact that the isolated theoretical scenario itself does not

justify overriding the universal and non-derogable torture prohibition lead only to the

conclusion that “Torture should not be debated.”105

105 Ross, J., supra note 4, p.590.

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International Committee of the Red Cross, “ICRC Report on the Treatment of Fourteen ‘High Value Detainees’ in CIA Custody” ICRC Report February 2007. Available at: http://www.nybooks.com/articles/22614. Luban, D., “Liberalism, Torture, and the Ticking Bomb” (2005) 91 Va. L. Rev. 1425-1461. Memorandum from Jay C. Bybee, Department of Justice Office of the Legal Counsel, to Alberto R. Gonzales, Counsel to the President, Re: Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A 1 August 2002. Mickum, B., “The Truth About Abu Zubaydah” The Guardian 30 March 2009. Available at: http://www.guardian.co.uk/commentisfree/cifamerica/2009/mar/30/guantanamo-abu-zubaydah-torture. Nowak, M., “What Practices Constitute Torture: US and UN Standards” (2006) 28 Hum. Rts. Q. 809-841. Paust, J., Beyond the Law: The Bush Administration’s Unlawful Responses in the ‘War’ on Terror. New York: Cambridge University Press, 2007. Ross, J., “Black Letter Abuse: The US Legal Response to Torture Since 9/11” International Review of the Red Cross Vol.89 No.867, September 2007. Rouillard, L., “Misinterpreting the Prohibition of Torture Under International Law: The Office of the Legal Counsel Memorandum” (2005-2006) 21 Am. U. Int’l L. Rev. 9-41. Sands, P., Lawless World: America and the Making and Breaking of Global Rules. London: Allan Lane, 2005. Especially Chapter 9 “Terrorists and Torturers”, pp.204-222. Shah, N., “Knocking on the Torturer’s Door: Confronting International Complicity in the U.S. Rendition Program” 38 Colum. Hum. Rts. L. Rev. 581-659 (2006-2007). Shane, S., “2 Suspects Waterboarded 266 Times” New York Times 20 April 2009. Available at: http://www.nytimes.com/2009/04/21/world/21detain.html?pagewanted=2&fta=y. Shue, H., “Torture In Dreamland: Disposing of the Ticking Bomb” (2005-2006) 37 Case W. Res. J. Int’l L. 231-239. Soufan, A., “My Tortured Decision” The New York Times 23 April 2009, p.A27. Available at: www.nytimes.com. Steiner, H, et. al., International Human Rights in Context: Law, Politics, Morals. New York: Oxford, 2007.

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