Torture for Intelligence in the Post-9/11 World
About This Event

After 9/11, serious questions were raised as to the methods that might be used to extract information from terrorists who might threaten U.S. national interests. What constitutes torture? Is it ever justified? What are the legal procedures that the U.S. government can put in place regarding this issue? Jean Bethke Elshtain of the University of Chicago; Sanford Levinson of the University of Texas Law School, who edited a new book of essays titled Torture: A Collection; Kim Scheppele of the University of Pennsylvania Law School; and former Justice Department official John Yoo of AEI and the University of California–Berkeley—will discuss the philosophical, moral, and practical implications of the use of torture for gathering intelligence.

Agenda
9:45 a.m.

Registration

10:00 Panelists: Jean Bethke Elshtain, University of Chicago
Sanford Levinson, University of Texas Law School
Kim Scheppele, University of Pennsylvania Law School
John Yoo, AEI and University of California–Berkeley
Moderator: John C. Fortier, AEI
Noon

Adjournment

Event Summary

November 2004

Torture for Intelligence in the Post-9/11 World

After 9/11, serious questions were raised as to the methods that might be used to extract information from terrorists who threaten U.S. national interests. What constitutes torture? Is it ever justified? What are the legal procedures that the U.S. government can put in place regarding this issue? At a November 10 AEI conference, Jean Bethke Elshtain of the University of Chicago; Sanford Levinson of the University of Texas Law School, who edited a new book of essays titled Torture: A Collection; Kim Scheppele of the University of Pennsylvania Law School; and AEI's John Yoo, a former Justice Department official, discussed the philosophical, moral, and practical implications of the use of torture for gathering intelligence.

 

Sanford Levinson
University of Texas Law School

Torture is a subject that is not often discussed in mainstream politics, but it is a salient issue in light of the methods of interrogation used in Afghanistan after the attacks of September 11.  The topic seemed to be avoided during the 2004 presidential campaign, and many fear that it will be seldom raised. Torture: A Collection contains a number of different essays relating to the philosophical and practical implications of interrogation policies. Some deal with the seemingly hypocritical signing of UN conventions designed to deter torture, while others advocate torture only under very specific constraints and stipulations.

Most of the essays in the book are written by authors who are against torture as a whole yet allow exceptions under certain instances. There are a number of positions that dictate that torture is permissible only when the interrogator has given a torture warrant. Some essayists are adamantly opposed to that idea, calling it "stunningly bad." Other essays deal with the historical background of torture, particularly in law during the Middle Ages. Current issues and policies are also discussed at length.

Current conventions have adopted Kantian policies and laws written in absolutist terms, often denying torture as a method in all circumstances. The problem becomes, however, when the law is not exactly clear and different definitions of sub-torture are conjured, such as occurs during current organizations of government.

Jean Bethke Elshtain
University of Chicago

The philosophical and moral merits of torture are often examined by using a hypothetical situation. For instance, a bomb is set to go off in a building, and the suspect who is pegged as the almost certain criminal is captured. The question is should torture be used to gather information from the suspect?

A philosophical stance rooted in deontology would suggest that one is never permitted to use another human being as a means to an end, including the end of sparing lives. A utilitarian, on the other hand, would suggest that the greatest good for the greatest number could be achieved by torturing the suspect.

Another dilemma to the torture debate occurs in defining the word torture. Is a shouted insult a form of torture? What about sleep deprivation or shaking and threatening? Obviously, most people would categorize severe physical harm and pain as torture, but other practices remain in debate. If all forms of coercion or manipulation are considered torture, we move in the direction of a kind of indiscriminate moralism and legalism. And, at the same time, we deprive law enforcement--both domestic and international--of some necessary tools that it needs in an often violent and dangerous world.

With these issues in mind, we can see that torture needs to be confronted on many fronts. If we condemn the practice outright, we lapse into a legalistic version of pietistic rigorism in which one's own moral purity is ranked above all other goods. This could also be a form of moral laziness, because one repairs to a code rather than grappling with a terrible moral dilemma. The conclusion could be that one is willing to pay a price and, if necessary, to incur moral guilt when the lives of others are at stake. 

Kim Scheppele
University of Pennsylvania Law School

The torture debate often begins with the aforementioned hypothetical of a situation where the suspect is almost certain to be involved in the incident, and there is a clear and present danger in not doing everything possible to get information. Except for the advocates of policies where torture is not allowed under any circumstances, the vast majority of citizens would agree that torture would be permitted. Once we have established that there is a tradeoff between lives saved and techniques used to interrogate, the argument shifts to when torture can be justified.

The problem is, from a sociological standpoint, that situations like this do not occur very often. Real-world situations involve suspected terrorists, who are isolated from a situation that may provide information. The interrogators do not know for certain whether there is actually a ticking bomb, and they are not usually inclined to make moral judgments on an individual basis. The current policy of the Department of Defense is to ask a judge or administrator to consider the appropriateness of coercive interrogation. The question then becomes the appropriateness of general guidelines or whether each case should be reviewed on an individual basis.

Because of the different circumstances surrounding torturing during interrogation, it seems difficult to provide general guidelines. And, even if we could develop a uniform policy, we should be very nervous about letting them loose in a bureaucratic setting where there are all sorts of incentives for movement and overuse. All in all, the hypothetical situations are not realistic enough, and the real circumstances where we often employ torture are not anywhere close to the hypothetical situations.

John Yoo
AEI and the University of California-Berkeley

There are cases where known leaders of terrorist organizations are caught and placed in situations in which torture may be justifiable. Granted, these circumstances do not establish the imminent threat the hypothetical situations establish; however, they do represent cases where major catastrophic attacks could be avoided.

With regard to the UN torture convention, there are several things to observe about the convention from a legal standpoint: First, it does not contain a clear definition of what torture actually is, and this leaves a great deal of room for interpretation. Second, Congress implemented the torture convention by federal statute that defines torture as something that is specifically intended to inflict severe physical or mental pain or suffering. The statute, however, did not provide a clearer definition than that. Third, the convention did not make any sort of policy against what Congress deemed as inhumane and degrading treatment-what could be classified as sub-torture. The reason Congress did not make a policy was because the phrase was so ambiguous that the legal community was unsure as to its exact meaning.

Some treatments currently used could fall under the inhumane or degrading category but not be classified as torture. These include sleep deprivation, long periods of isolation, and standing up for long periods of time. Arguably, these techniques could be permissible under Geneva Convention and would be useful in gathering information.

Current treaties, conventions, and standards are difficult to apply to the war on terror because we are not fighting a war against a nation-state that has signed the same treaties. This war is unconventional in every sense of the word, and, for this reason, the current policies and practices need to be reexamined.

AEI research assistant Christopher Trendler prepared this summary.

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