Torture: A Collection.

Vol. 15 No.2 (February 2005), pp.103-106

TORTURE: A COLLECTION, edited by Sanford Levinson. New York: Oxford University Press, 2004. 328pp. Cloth. $29.95 / £18.50. ISBN: 0-19-517289-2.

Reviewed by Donald W. Jackson, Department of Political Science, Texas Christian University. Email: d.w.jackson@tcu.edu

9/11 has become eponymous for global terrorism, and efforts to prevent or combat terrorism have revived the public specter of torture. However, it is likely that, rather than being unusual, state-directed torture simply had a low profile before 9/11. It is our fear of global terrorism that has made us contemplate torture in a new light.

On 9/11/2003, the cover of THE ECONOMIST carried an illustration of a “terrorist” tied to a chair under the question, “Is torture ever justified?” Its editorial position was that the “vigorous questions short of torture—prolonged interrogations, mild sleep deprivation, perhaps the use of truth serum—might be justified in some cases.” At the end, the editors suggested, however, that “there is a line which democracies cross at their peril: threatening or inflicting actual bodily harm. On one side of that line stand societies sure of their civilized values. That is the side America and its allies must choose” (p.9). The suggested line seems simple, but actual practice may be quite different, for our focus on presently perceived crises often leaves us oblivious to precedents. For example, the interrogation techniques employed by U.S. interrogators in Guantanamo and elsewhere were used by the British in Northern Ireland and declared by the European Court of Human Rights to constitute cruel, inhuman and degrading treatment in the 1978 decision of the European Court of Human Rights in IRELAND v. UNITED KINGDOM.

Probably the most frequently discussed current question involves the hypothetical of the ticking bomb. It goes like this: Authorities have in custody a person who is quite likely to have certain knowledge of a ticking bomb that may kill or maim hundreds or thousands of innocent people. Authorities fear that the explosion is imminent, and all their lawful efforts to elicit the information that might prevent the explosion have so far failed. Should authorities torture the person in custody to get the information to save the innocent? This hypothetical is sure fodder for classroom discussion, but is there a single correct answer, or only competing answers?

This book, edited by Sanford Levinson, contains 18 essays with mostly competing answers, all related, directly or indirectly, to the ticking bomb hypothetical. By the count of Arial Dorfman in the “Foreword” to the book, 132 countries presently practice torture (no source is cited for the count). So we start with the premise that torture is ubiquitous. Sometimes the differences in these essays are between moral absolutists (Elaine Scarry, Ch. 15) and conditionalists (or utilitarians). Some draw a distinction between torture that has only a terrorist objective, and “interrogational” torture (see Henry [*104] Shue, Ch. 2) that has the purpose of seeking essential information (as in the ticking bomb). Some distinguish between legal justifications and moral justifications for torture (Jean Bethke Elstain, Ch. 4). Some favor transparency, while others prefer to keep torture always in the dark or in shadows. Some believe that the authorities charged with defending a nation state always must have the prospect of dirty hands.

Probably the most famous “dirty hands essay” is that by Michael Walzer (Ch. 3). Walzer acknowledges that those who act for us, or in our names, are often killers (usually in a military or law enforcement context) and that our leaders may be called upon to do immoral or corrupting things. In this, Walzer is joined by Machiavelli and Max Weber (see p.69 et seq.). The subtlety here (much too subtle for most contemporary public political discussion) is that even though such conduct may be necessary or expedient, it may nonetheless be corrupting and beyond justification under any sort of categorical moral judgment. In this sense those who direct torture as an instrument of state policy should do so with a heavy heart—and with the expectation that they may be held accountable for what they have done—even when it is was necessary for the preservation of innocent lives. However, others would justify such conduct under carefully described conditions.

One reason why torture usually cannot be publicly justified is that the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishments (entered into force in 1987 and ratified by 130 countries, by Sanford Levinson’s count at p.23) provides that “[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture.” Essentially the same provisions appear in the European Convention on Human Rights and Fundamental Freedoms and in the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.

John Lanbein’s essay on the legal history or torture (Ch. 5) will be particularly enlightening to those, like myself, who were blissfully unaware of the former legality of torture in Europe, a practice that was abandoned only in 1740. Except for the Privy Council and the limited term of the Star Chamber, the English were outside this continental precedent.

Jerome Skolnick (Ch. 6) provides a thorough and realistic review of American police interrogation practices, noting, as he must, the tradition of the “Third Degree.”

Mark Osiel (Ch. 7) provides fascinating insight into the minds of torturers in Argentina’s “Dirty War.” For those who are unfamiliar with this history, Osiel reports that priests from the Argentine military chaplaincy were often present during torture sessions, encouraging the victims to confess while providing the torturers with the reassurance “that God knew that what was being done was for the good of the country” (p.134).

Miriam Gur-Arye (Ch. 10) has an excellent contrast between the principles [*105] of “necessity” and “self-defense” as justifications for torture. Necessity, she writes, involves a balancing of interests under which even morally repugnant acts against innocent persons might be justified to produce “a sizeable gain in aggregate welfare” (p.191). She favors the more narrow justification of self-defense that would prohibit torturing innocent and defenseless persons. A terrorist who has knowledge of a ticking bomb would not be defenseless because torture can always be avoided by providing essential information.

Alan Dershowtiz’s essay (Ch. 14) recasts and defends the argument from his book, WHY TERRORISM WORKS, that the use of torture ought to be regulated through a formal warrant process: “[I]f torture is being or will be practiced, is it worse to close our eyes to it and tolerate its use by low-level law enforcement officials without accountability, or instead to bring it to the surface by requiring that a warrant of some kind be required as a precondition to the infliction of any type of torture under any circumstances (p.257)? So, while he avows his opposition to torture “as a normative matter,” he acknowledges the fact that torture is used, and would regulate its use and provide for accountability. That puts Dershowitz in the transparency camp, while Richard Posner (Ch. 16) responds with the suggestion that establishing a procedure through which torture may be authorized might lead to a jurisprudence of torture through which the outer bounds of the authorization may be explored (p.296).

Elaine Scarry (Ch. 15) is dismayed by Dershowitz’s argument. One of her concerns is that a torture warrant might provide a shield that may prove more likely to protect the agents of torture rather than its victims (p.287). She hopes that we will “reaffirm each day the blanket prohibition on torture” and hold torturers accountable for their acts (p.290).

Presumably while some of these essays were being written, the photographs from Abu Ghraib prison near Baghdad were revealed by CBS News, and the essays in this book were written before Alberto Gonzalez was nominated by President George W. Bush to be the next Attorney General of the United States. Gonzalez’s January 2002 signed memo describing some parts of the Geneva Conventions as “quaint and obsolete” has led members of the Torture Abolition and Survivor Support Coalition International (TASSC) two years later to oppose his nomination. What better evidence could be offered for the present relevance of this book? Can we reasonably hope that its relevance will be less two years from now?

Meanwhile, anyone who has not yet done so should read the several opinions in CHAVEZ v. MARTINEZ (2003).

REFERENCES:

Bell, J. Bowyer. 1993. THE IRISH TROUBLES: A GENERATION OF VIOLENCE. Dublin: Gill and Macmillan.

Dershowitz, Alan M. 2002. WHY TERRORISM WORKS; UNDERSTANDING THE THREAT, RESPONDING TO THE CHALLENGE. New Haven: Yale University Press. [*106]

THE ECONOMIST, January 11-17, 2003.

Evans, Malcolm D., and Rod Morgan. 1998. PREVENTING TORTURE: A STUDY OF THE EUROPEAN CONVENTION FOR THE PREVENTION OF TORTURE AND INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT. Oxford: Clarendon Press.

Jackson, Donald W. 1997. THE UNITED KINGDOM CONFRONTS THE EUROPEAN CONVENTION ON HUMAN RIGHTS. Gainesville, Fl: The University Press of Florida.

CASE REFERENCES:

CHAVEZ v. MARTINEZ, 123 S.Ct. 1994 (2003).

IRELAND v. UNITED KINGDOM, 2 E.H.R.R. 25 (1980).

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