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date: 20 January 2020

The Ethics of Torture in the Context of the War on Terror

Summary and Keywords

Despite an absolute prohibition against torture, countries throughout the world continue to engage in ill-treatment and torture, often during times of national stress, when perceived others or out-group members are subjected to extreme interrogation. This is shown in numerous analyses and documentary evidence of the detention and interrogation policies adopted by the US government after the terrorist attacks of September 11, 2001, including coercive interrogation techniques that many regard as torture, secret detentions, and extraordinary renditions to third countries known to practice torture. Faced with an uncertain and stressful situation, prison guards in Abu Ghraib turned to violence as a way of reassuring themselves that they were in control. With little oversight and a general mandate to secure actionable intelligence, aggression was encouraged and physical and psychological techniques refined in Afghanistan and at the detention center in Guantánamo became standard operating procedures. Though government leaders disavowed the use of torture and claimed that the United States used legally and morally acceptable coercive interrogation methods, US actions prompted a renewed philosophical and political debate whether there should be an absolute prohibition against torture or whether, under carefully specified circumstances, it is a lesser evil to torture a suspect for information to prevent a greater evil that menaces society. Justifications for the limited use of torture focus on its utility in preventing greater harm, especially under ticking bomb scenarios. Arguments for an absolute ban on torture question its effectiveness, citing anecdotal and experimental evidence that coercive methods often produce false confessions. Critics also cite strategic costs, including harm to the US reputation and its counterterrorism efforts, as well as damage to the global norm against torture. Public opinion in the United States and globally is ambivalent, though increasing representations of torture in popular culture have cultivated a torture myth, according to which torture is only used against hardened terrorists and in exceptional circumstances, when time is of the essence and torture is both necessary and effective in forcing terrorists to divulge valuable information that can save lives and avert future attacks. Ultimately, unrealistic depictions of torture and ambivalent signals from political leaders have created a climate of impunity and broad, though deeply divided support for harsh interrogation techniques.

Keywords: war on terror, black sites, detention, extraordinary rendition, coercive interrogation, enhanced interrogation techniques, Abu Ghraib, Guantánamo, ethics of torture, ticking time bomb scenario, torture in popular culture, public opinion on torture

Introduction

The terrorist attacks of September 11, 2001, launched a global war on terror that is the focus of considerable scholarly attention and debate. Among the most controversial aspects of this war, the use of harsh interrogation methods that many describe as torture called long cherished principles and norms into question. These methods defied a long-standing taboo against torture, which had come to be universally condemned as a violation of human dignity, as in the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which allows “no exceptional circumstances whatsoever” to undermine an absolute ban on the practice (Article 2). Yet 9/11 gave rise to a strong conviction that the rules of war and international norms did not apply against enemies like al Qaeda. Lawyers within the George W. Bush administration argued that 9/11 had plunged the country into a new kind of war in which it was essential “to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians . . . this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions” (Gonzales, 2002).

By denying that America’s enemies were lawful combatants and insisting on an extremely narrow definition of proscribed torture, a wide range of interrogation techniques were deemed to be legal. Moreover, a broad doctrine of preemption was invoked to justify using whatever means necessary to get information that could help stop terrorist acts before they could be carried out, as in the ticking time bomb justification for torture. Thus, secret detention facilities were set up outside the United States, suspected terrorists were “rendered” to countries well known for using brutality and torture, and harsh interrogation methods were designed, tested, and implemented in detention facilities in Afghanistan, Guantánamo Bay, and Iraq.

The blatant disregard for international human rights and humanitarian law in the war on terror belied official claims that the United States was the global champion of human rights, especially after the release of photographs of detainees in US custody in Abu Ghraib prison in Iraq. Mounting criticism of the use of coercive interrogation techniques, secret detentions, and extraordinary renditions to third countries led to some changes in public rhetoric, especially during the administration of Barack Obama, but actual changes in policy were limited and only a few low-level troops and staffers were ever held responsible for abuses, while senior civilian and military leaders escaped responsibility. Such lack of accountability sent a clear signal that torture could be justified and is cited as a reason why “torture is back on the table and once again politically palatable” (Taguba & Cooper, 2017, p. 117). Popular culture reinforced this message and public opinion led a majority of Americans to express support for the use of torture against suspected terrorists, setting the stage for Donald Trump to openly advocate the use of torture. Although opposition to torture remains considerable, the use and justification of torture in the context of the war on terror raises questions about a possible weakening of the global norm against torture.

This review essay analyzes decisions made by the White House in the aftermath of 9/11 to develop aggressive interrogation policies that laid the groundwork for prisoner abuse in Afghanistan, Guantánamo Bay, and Iraq. Although the administration crafted legal justifications for such policies and denied that these constituted torture, its clandestine detention program and use of brutal interrogation techniques defied such public claims (Senate Select Committee on Intelligence, 2014). The article examines the controversy ignited by the publication of photographs from Abu Ghraib prison and the limited changes that were introduced in response. While the Supreme Court pushed back against administration claims that foreign nationals had no right to challenge their detention at Guantánamo, subsequent court decisions deferred to administration claims that extraterritoriality and national security rule out legal challenges of the detention and treatment of prisoners of the war on terror. With a change of administration in 2008, both Congress and the executive branch adopted some policy changes, but these proved to be largely superficial and investigations failed to produce prosecutions of policymakers responsible for designing and approving interrogation policies.

Next, the article examines the philosophical and political debate triggered by US actions in the war on terror. Justifications for the limited use of torture focus on its utility in preventing greater harm, especially under ticking bomb scenarios. Arguments for an absolute ban on torture question its effectiveness, citing anecdotal, and experimental evidence that coercive methods often produce false confessions. Critics also cite strategic costs, including harm to the US reputation and its counterterrorism efforts, as well as damage to the global norm against torture. While states that collaborated with the United States in its rendition, detention and interrogation program tended to increase their own use of torture and found it easier to justify its situational use, there is continued support for this norm in public discourse and in international efforts to insist on accountability for past violations.

The article ends by reviewing popular media representations of interrogation and torture before analyzing shifts in American public opinion over the use of interrogational torture. Ultimately, the article concludes that popular culture, changing partisan dynamics and a general climate of impunity have created broad, though deeply divided support for the continued use of harsh interrogation techniques.

Torture in the War on Terror

Numerous works have provided detailed analyses and documentary evidence of the Bush administration’s incarceration and interrogation policies in the war on terror (e.g., Danner, 2004; Greenberg & Dratel, 2005; Hersh, 2004; Jaffer & Singh, 2007; Mayer, 2008; McCoy, 2011). Although some have argued that the physical and sexual abuse of prisoners has been standard practice in US prisons for quite some time (Felner, 2005; Tapley, 2011; Williams, 2006), others suggest that there was a profound shift in attitudes toward torture following the 9/11 attacks (Alvarez, 2006, pp. 175–176; Goldstone, 2005, pp. 344–345; Mayer, 2008, p. 328). Although the CIA established an extraordinary rendition program as early as 1995 aimed at tracking, capturing, and transporting Islamist terrorist suspects to third countries, this program grew dramatically after 9/11, with one former CIA agent arguing that bad as the policy of extraordinary rendition was before, “afterward, it really went out of control. . . . We have no method over there other than our laws—and we’ve decided to ignore them” (Dan Coleman, quoted in Mayer, 2011, p. 145). The CIA increased the number of terrorist suspects who were abducted, detained, and interrogated without due process under its clandestine Rendition, Detention, and Interrogation (RDI) program. Some of these suspects were sent to countries like Egypt, Morocco, Syria, and Jordan, known to employ torture, while high-value targets were sent to secret prisons outside US territorial jurisdiction, where they effectively disappeared (Mayer, 2011, pp. 139–141; Senate Select Committee on Intelligence, 2014, pp. 163–170; Singh, 2013).

In her study of the US treatment of prisoners of war from independence to the present, Stephanie Carvin (2010) points out that US adherence to the laws of war has always been inconsistent. While the United States has been crucial to the development of laws of war, it has also felt justified in waging savage wars against native populations, especially when they did not fight in the “civilized” manner of European nations (Carvin, 2010, pp. 59–61). Indeed, Carvin (2010, pp. 80–82) argues that, throughout much of US history, the laws of war were invoked to excuse brutal conduct, as “honorable” enemies who followed these laws were deemed to be legitimate combatants and thus entitled to be treated in kind, whereas “dishonorable” enemies who fought dirty wars using unconventional methods were shown little mercy. During the US occupation of the Philippines in the late 1800s, torture was authorized and encouraged by top government and military leaders as a form of social control. Although a formal Senate investigation was conducted, popular sentiment blamed the Filipinos rather than the US military; according to one paper from the period, “the natives [Filipinos] have, in some cases, moved our soldiers to transgress the line of gentleness desirable for ordinary warfare. . . . The transgressions were very slight. And at the worst, they have been few.” Another stated that the army “has obeyed orders. It was sent to subdue the Filipinos. Having the devil to fight, [they] sometimes used fire.” President Theodore Roosevelt echoed these attitudes, stating, “nobody was seriously damaged. . . . The Filipinos had inflicted incredible torture upon our own people” (Coyne & Hall, 2018, pp. 142–145).

After World War II, and even more so as a reaction to the war in Vietnam, the US military came to recognize that “major violations of the laws of war are quite costly in terms of resources, manpower and reputation” and generally played by the rules of engagement codified in national and international law (Carvin, 2010, p. 135). Even before the attacks of 9/11, however, increasing suspicion toward the idea of international human rights standards and international law had emerged, as crystallized in the arguments of “New Sovereigntists” that international law cannot restrict a sovereign country’s actions since the ultimate purpose of the state is to protect its inhabitants—even if this means violating principles of international law (Carvin, 2010, pp. 140–150).

This new paradigm was reflected in government policy following the attacks of 9/11. Immediately following the attacks, lawyers in the Office of Legal Counsel in the Justice Department laid out an expansive vision of presidential power, arguing that the president was constitutionally entitled to respond in any way he deemed necessary to meet a terrorist threat (“Memorandum Opinion for the Deputy Counsel to the President,” September 25, 2001; reprinted in Greenberg & Dratel, 2005, pp. 3–24). Deputy Assistant General John Yoo and others within the Office of Legal Counsel advanced a very narrow view of the applicability of international and national law to the war on terror, stipulating that the United States was not legally bound to grant al Qaeda or Taliban suspects the protections accorded to prisoners of war under the Geneva Conventions (“Application of Treaties and Laws to al Qaeda and Taliban Detainees,” January 9, 2002, and January 22, 2002; “Status of Taliban Forces under Article 4 of the Third Geneva Convention of 1949,” February 7, 2002; reprinted in Greenberg & Dratel, 2005, pp. 38–117, 136–43). White House General Counsel Alberto Gonzales argued that the war on terror was a new kind of war that “renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions” (quoted in Carvin, 2010, p. 153). President Bush agreed with this conclusion, publicly declaring that the Geneva Conventions did not apply, although detainees would be treated humanely “as a matter of policy” even though they were “not legally entitled to such treatment” (Greenberg & Dratel, 2005, p. 118). Building on this, the Office of Legal Counsel argued that prisoners deemed enemy combatants, including US citizens arrested on US soil, could be imprisoned and tried by the military (Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, “Determination of Enemy Belligerency and Military Detention,” June 8, 2002). Prisoners in Guantánamo were denied the right to habeas petitions (Patrick F. Philbin, Deputy Assistant Attorney General and John Yoo, Deputy Assistant Attorney General, US Department of Justice, Office of Legal Counsel, “Possible Habeas Jurisdiction over Aliens Held in Guantánamo Bay, Cuba,” December 28, 2001; reprinted in Greenberg & Dratel 2005, pp. 29–37) and the president was argued to have the unfettered right to transfer prisoners captured in the war on terror to governments without regard for whether they would be tortured (Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, “The President’s Power as Commander in Chief to Transfer Captured Terrorists to the Control and Custody of Foreign Nations,” March 13, 2002).

As early as 2002, staff from the Survival, Evasion, Resistance and Escape (SERE) program were enlisted to instruct military personnel at Guantánamo on interrogation techniques. The SERE program, which was designed to train US soldiers and CIA operatives to withstand torture, subjected participants to harsh treatment such as simulated drowning, stress positions, isolation, and multiple days of sleep deprivation induced by painful shackling to the ceiling. Psychologists associated with the SERE training program went on to “reverse engineer” these techniques for offensive rather than defensive purposes and added cultural humiliation and exploitation of phobias, including forced nudity, sexual humiliation, and threats by dogs. Psychologists drew on research on learned helplessness, which exposed subjects (originally dogs) to repeated shocks in conditions where they were unable to escape and found that they gave up hope and no longer attempted to escape (Mayer, 2008, pp. 157–164; McCoy, 2011, pp. 35–37; Soldz, 2011, p. 180). Psychologists James Mitchell and Bruce Jessen designed an interrogation protocol aimed at psychologically breaking detainees by subjecting them to severe physical and psychological abuse including prolonged sleep deprivation and nudity, starvation, beating, water dousing, and extreme forms of sensory deprivation. This protocol was authorized by the Department of Justice in August 2002 and first used against Abu Zubaydah who was accused of being a high-ranking member of al Qaeda. Mitchell and Jessen personally oversaw Zubaydah’s interrogation and went on to refine their protocol for future use by the CIA, receiving a US$ 81 million contract for their company, which was also tasked with evaluating the effectiveness of the program that they had designed (Fink, 2017; Yachot, 2015).

US interrogators also drew on stereotypical accounts of Islamic and Arab culture to design specific torture techniques meant to exploit phobias and sexual vulnerabilities associated with detainees’ cultural and religious beliefs. Since Muslim detainees were presumed to be less sexually progressive, they were subjected to humiliating sexualized practices; since they were supposed to be easily offended by Western music, they were bombarded with heavy metal or country music or songs with suggestive lyrics. In fact, no one would be able to withstand music at high levels of volume for such extensive periods of time, regardless of their taste in music (Cusick & Joseph, 2011, p. 15). US Army Interrogator Tony Lagouranis (2005) reported hearing “all the time” while he was stationed in Iraq that Arabs “really hate being sexually humiliated” but noted “who doesn’t? I mean, who wants to be sexually humiliated? That’s not a cultural thing, that’s a human thing. So I attribute a lot of those comments to just pure racism. You hear a lot of comments like that, that really don’t make sense.” Judith Butler also argues that efforts to shame and humiliate prisoners at Guantánamo and Abu Ghraib had less to do with culturally specific vulnerabilities than with prejudices toward Arabs and Muslims. While the US military cast itself as a sexually progressive institution, it hypocritically resorted to sexual humiliation of detainees based on widespread views of Arabs as homophobic, misogynistic and backward (Butler, 2008, pp. 15–18).

At the same time that the administration insisted that neither the Geneva Conventions nor customary international law applied, it sought to justify its actions in legal terms. Top administration officials and legal advisors also articulated the legal basis for a far-reaching set of permissible interrogation techniques that would arguably fall just under the “talismanic legal threshold” of torture (Luban, 2009, p. 221). Defense Secretary Donald Rumsfeld authorized a number of approved interrogation techniques in December 2002, including the use of stress positions, forced nudity, sensory deprivation, and manipulation of phobias, with harsher techniques for “exceptionally resistant detainees” permitted only by special request (“Counter-Resistance Techniques,” December 2, 2002; reprinted in Greenberg & Dratel, 2005, p. 237). These techniques superseded existing military regulations prohibiting “acts of violence or intimidation, including physical or mental torture, threats, insults, or exposure to inhumane treatment as a means of or aid to interrogation” (Jaffer & Singh, 2007, p. 5). In response to objections from some FBI agents and military lawyers about the legality and effectiveness of the techniques employed, a working group commissioned by Secretary Rumsfeld issued a revised list of interrogation techniques in April 2003. These remained controversial, however, as was the report’s claim that interrogation techniques prohibited by law could be overruled by the president if he believed they were necessary to prevent attacks upon the United States (“Working Group Report on Detainee Interrogations in the Global War on Terrorism,” April 4, 2003; reprinted in Greenberg & Dratel, 2005, pp. 286–359). Such a finding rested on the arguments articulated in a March 2003 memo prepared for Department of Defense General Counsel William J. Haynes II by Deputy Assistant Attorney General Yoo. In this memo, Yoo argued against the application of statutes such as the prohibition against torture to the conduct of the military during wartime since this would infringe on the president’s commander-in-chief authority and the government’s right to use any and all measures necessary for its self-defense; in effect, this suggested that presidential directives can never result in crimes on the grounds that whatever the president orders in his role as commander in chief is lawful (“Military Interrogation of Alien Unlawful Combatants Held Outside the United States,” March 14, 2003, p. 13).

The legal memoranda prepared by officials in the Bush administration thus sought to establish a set of guidelines for interrogation policies that would allow for a wide range of practices believed necessary to secure actionable intelligence. Interrogators at detention facilities at Guantánamo and in Iraq and Afghanistan began using abusive techniques, believing that such techniques were not only useful but were encouraged by senior officials. From Vice President Dick Cheney’s statement in a 2001 press interview that US intelligence personnel would have to “work . . . sort of the dark side, if you will” to encouragement by the Commander of the US Central Command, Lieutenant General Ricardo S. Sanchez, to “go to the outer limits” and “break” prisoners in order to obtain information, senior officials conveyed the message that abuse was acceptable. In a June 2004 memorandum prepared for the navy inspector general, Navy General Counsel Alberto Mora (2004, p. 4) noted that this created the danger of “force drift”: “once the initial barrier against the use of improper force had been breached . . . the level of force applied against an uncooperative witness tends to escalate such that, if left unchecked, force levels, to include torture, could be reached.”

Criticism of interrogation practices came from other sources as well. The International Committee of the Red Cross issued a confidential report in February 2004 in which it charged that abuse of Iraqi prisoners by US military intelligence personnel was widespread and in some cases “tantamount to torture.” The report, excerpts of which were published in the Washington Post, included statements by military intelligence officers that harsh and brutal tactics were “part of the process” when trying to “obtain confessions and extract information” (“Report of the International Committee of the Red Cross on the Treatment by the Coalition Forces of Prisoners of War and Other Protected Persons by the Geneva Conventions in Iraq During Arrest, Internment and Interrogation,” February 2004; reprinted in Greenberg & Dratel, 2005, pp. 383–404). A secret 2004 report prepared by US Army Major General Antonio Taguba detailed various forms of abuse of detainees and other prisoners at Abu Ghraib prison in Baghdad, including failure to register several prisoners with the International Committee of the Red Cross, an unambiguous breach of international law (“Article 15–6 Investigation of the 800th Military Police Brigade,” March 2004; reprinted in Greenberg & Dratel, 2005, pp. 405–466; also see Jaffer & Singh, 2007, p. 37). A Defense Department “Information Paper” leaked to the press in early April 2004 lists 62 allegations of prisoner abuse, including 14 deaths that could not be attributed to natural causes (“Allegations of Detainee Abuse in Iraq and Afghanistan,” April 2, 2004). These and other documents detail various types of abuses in detention facilities throughout Iraq and Afghanistan, including electrocution, burning, asphyxiation, strangulation, sexual assault, and blunt force injuries.

Despite such reports, generally little attention was paid to administration policies until the publication of shocking photographs of detainee abuse at Abu Ghraib in April 2004 (for exceptions, see Press, 2003; Schulz, 2002). The photographs had a visceral impact, profoundly challenging Americans’ self-image. They offered “the actual incontrovertible proof of abuse [and] had a power that no written or oral description could match” (Mayer, 2008). As Brent Steele (2010, pp. 2–4) explains, Americans (like citizens of any nation-state) draw intrinsic satisfaction from an aesthetic construction of national identity that makes them appear more attractive to others and to themselves. The iconic images in the Abu Ghraib photographs compromised this aesthetic identity and forced Americans to confront the unappealing aspects of their government’s use of power. The undeniable evidence in the photographs brought practices to light that had previously been hidden from view, triggering a debate whether the abuses were an aberration or the logical consequence of government policies in the war on terror.

The Bush administration responded by denouncing the abuses as the actions of rogue individuals and denying that the US government officially sanctioned torture. However, a number of academic works and journalist reports criticized US policy, charging that “the torture of prisoners is not an aberration” (Sontag, 2004). In its 2008 report, “Inquiry into the Treatment of Detainees in US Custody,” the Senate Armed Services Committee agreed that claims made by top administration officials that detainee abuses could be chalked up to the unauthorized acts of a “few bad apples” were false. As Senator Carl Levin (2008) summarized, the committee’s investigation showed that “senior officials sought out information on, were aware of training in, and authorized the use of abusive interrogation techniques. Those senior officials bear significant responsibility for creating the legal and operational framework for the abuses.” Critics also denounced the Bush administration’s use of “tricky legalisms” to sanction practices that many people—including prominent administration insiders—considered to be torture (Birdsall, 2016, p. 178; Mayer, 2008, p. 151). One such critic, former State Department official Philip Zelikow (2012, p. 5) faulted government lawyers for focusing on a narrow legal analysis that ignored political realities: “instead of framing the question around what should be done, carefully inventorying prior US and foreign experience in detention practices and interrogations and analyzing all the pros and cons, the issue was debated as one of what can be done.” Ben Saul (2008, p. 9) advanced a similar criticism of “instrumentalist lawyering” that manipulated legal rules so as to serve the counter-terrorist imperatives of the executive, instrumentally interpreting existing prohibitions “so as to fit one’s chosen methods of torture within the contours of permissible conduct.”

With the leak of the torture memos to the press in December 2004, the White House issued a new policy statement, disavowing torture and pledging to adhere to the definition of torture forwarded in the UN Convention Against Torture. At the same time, however, the administration did not withdraw its view that the president has unchecked powers, nor did it condemn specific techniques. Despite some internal disagreements, top Bush administration officials continued to reject recommendations—for example, in the July 2004 report of the 9/11 Commission—that the United States abide by Common Article 3 of the Geneva Conventions, which prohibits cruel, inhuman, and degrading (CID) treatment in all types of armed conflict (Zelikow, 2012, pp. 33–34). It took media scrutiny, international criticism and Congressional pressure to eventually accept the “CID” standard of Common Article 3 in the fall of 2005, as Congress passed the Detainee Treatment Act prohibiting cruel and inhuman treatment of anyone in the custody of the US regardless of location and nationality. Given overwhelming support for the measure, President Bush signed the bill into law, but added a signing statement that gave the president unrestricted powers to exercise authority in times of war to protect national security (Birdsall, 2016, pp. 185–189).

Lawyers in the Office of Legal Counsel continued to insist that existing CIA interrogation practices—including “waterboarding, walling, dousing, stress positions, and cramped confinement”—were necessary to protect the United States from terrorist attacks and did not violate the ban on cruel and inhuman treatment (Birdsall, 2016, pp. 191–194; Zelikow, 2012, pp. 34–39). It was not until the fall of 2006, following considerable internal debate and the Supreme Court’s ruling in Hamdan v. Rumsfeld that Common Article 3 must be applied to the US government’s treatment of captives, that the administration announced a tightening of interrogation standards. Shortly thereafter, Congress approved the administration-backed Military Commissions Act of 2006, which provided CIA interrogators with legal immunity, both past and future, and legitimated psychological methods as a legal tool (McCoy, 2011, pp. 41–42).

With the transition to a new administration, the United States appeared to adopt a clear stance against torture, although in fact a number of policies related to counter-terror interrogation remained in place. President Barack Obama issued an executive order in January 2009, shortly after taking office, barring all US government officials and employees from using any interrogation method not included in the US Army Field Manual and outlawing enhanced interrogation techniques such as waterboarding that had previously been authorized. Nonetheless, the Military Commissions Act still defined torture in terms of major organ failure or major bodily injury, which excludes most acts captured by international law. An interrogation task force later recommended that harsh psychological techniques, stress positions, environmental manipulation, protracted sleep deprivation and solitary confinement continue to be permitted (McCoy, 2011, p. 43; Rejali, 2011, p. 39). While the Obama administration officially repudiated the use of torture, it chose to limit criminal investigation into detainee mistreatment, arguing that beyond two cases of detainee deaths, further investigation was “not warranted” and that the country needed to look forward rather than backwards (Cohn, 2013, p. 69). The administration contended that CIA and military interrogators acted in good faith based on legal advice from the Justice Department, and it concluded that the individuals who gave legal advice authorizing torture practice merely “exercised poor judgment” and “have not violated or acted in reckless disregard of a clear obligation or standard” (from July 2009 report of the Office of Professional Responsibility, quoted in Birdsall, 2016, p. 192).

In 2014, the US Senate Select Committee on Intelligence released a report following a five-year investigation into the CIA’s detention and interrogation program. The Democratic majority on the committee, joined by one Republican Senator, argued that the use of torture had not produced unique intelligence, while most of the Republican minority claimed that it had. Yet regardless of different opinions on the effectiveness of the techniques, the report made it clear that they violated national and international law. While the report blamed the CIA for misleading the administration, top officials including Vice President Dick Cheney, National Security Adviser Condoleezza Rice, and President George Bush maintained that they had been informed about and approved CIA interrogation techniques (Birdsall, 2016, p. 193). Nonetheless, senior civilian and military leaders have not been held accountable for the abusive tactics that they devised and authorized, and President Obama declined to prosecute anyone for ordering or participating in abuse. He justified this stance by pointing to the incredible pressure that officials faced in the aftermath of the 9/11 attacks: “It is important for us not to feel too sanctimonious in retrospect about the tough job those folks had. A lot of those folks were working hard under enormous pressure and are real patriots” (Lewis, 2014).

Legal suits against officials involved with the CIA’s interrogation program were generally dismissed, as both the Bush and Obama administrations claimed that state secrets would be at risk if the cases proceeded. In a series of legal cases related to the detention of foreign nationals at Guantánamo, the Supreme Court ruled that these prisoners had the right to challenge their detention and petition federal courts for writs of habeas corpus: Rasul v. Bush (US Supreme Court, 2004), Hamdan v. Rumsfeld (US Supreme Court, 2006), and Boumediene v. Bush (US Supreme Court, 2008). Nonetheless, provisions of the 2006 Military Commissions Act were left in place that authorized “unlawful enemy combatants” to be tried by military commissions rather than civilian courts, allowing those who used questionable techniques to be sheltered from prosecution. Moreover, such protections were not extended to human rights violations outside of US territory. In February 2016, the Washington DC Circuit Court ruled that US citizens cannot sue federal agents who illegally detain or torture them in other countries: “when a citizen’s rights are violated in the context of military affairs, national security, or intelligence gathering, [constitutional protections are] powerless to protect him” (Meshal v. Higgenbotham, 2016, p. 1797). In his concurring opinion, Judge Brett Kavanaugh (then on the DC Circuit Court, now on the Supreme Court) argued that courts should not intrude on matters of national security and foreign policy without congressional authorization since this could impede the United States’ ability to conduct the ongoing war against terrorism (Meshal v. Higgenbotham, 2016, p. 1798).

With legal action blocked domestically, international courts stepped in. Criminal cases have been filed against senior US officials in Switzerland, France, Germany, Spain, Argentina, and Sweden to secure redress for victims of extraordinary rendition and torture. In 2007, German and Italian courts issued arrest warrants for CIA personnel involved in rendition and subsequent torture of a German citizen of Lebanese descent (Khalid al-Masri) and an Egyptian-born Muslim cleric residing in Italy. Although the United States refused to surrender agents, the Council of Europe demanded review of all US–EU bilateral military basing agreements with an eye to instituting human rights clauses and the European Parliament called for European governments to investigate CIA use of stopover sites in Europe and ban CIA officials and aircraft suspected to have been involved in rendition operations in Europe (Walsh & Piazza, 2010, p. 561). Former President George W. Bush and top officials cannot travel to states that assert universal jurisdiction for acts of torture without risking detention and prosecution (Cohn, 2013, pp. 65–66; Johnson et al., 2016, pp. 128–129). In the United States, the military commission system is still wrestling with how to handle evidence of what the United States did to terrorist suspects at CIA black sites. Evidence gained through torture cannot be used in court and defense lawyers are openly calling for details of what happened to their clients, hoping to use this information to win more lenient sentencing or even win a dismissal of charges on grounds of outrageous government conduct (Rosenberg, 2019). Legal action against the psychologists who designed, implemented and oversaw the CIA’s interrogation protocol successfully forced the CIA to release secret records on the agency’s interrogation program; in August 2017, a district judge rejected attempts to dismiss the case on national security grounds and in the settlement that followed, the psychologists admitted that they worked with the CIA to develop a program “that contemplated the use of specific coercive methods to interrogate certain detainees” (ACLU, 2017).

In November 2017, the chief prosecutor of the International Criminal Court requested a full investigation into violations of international law, including “war crimes of torture and related ill-treatment” in Afghanistan as well as war crimes closely linked to the situation in Afghanistan allegedly committed on the territory of other ICC member states. The investigation would cover crimes by all parties involved in the war since 2003, when Afghanistan became an ICC member state, and would include the Taliban, Afghan forces, and allied forces including the United States. This follows on a 2016 report by the prosecutor’s office that pointed to evidence that members of the US military “subjected at least 61 detained persons to torture, cruel treatment, outrages upon personal dignity” and members of the CIA “subjected at least 27 detained persons to torture, cruel treatment, outrages upon personal dignity and/or rape” (Office of the Prosecutor, 2016, p. 47; 2017).

Torture Debate

Just as US actions in the global war on terror have triggered contradictory legal responses, they have also renewed a philosophical and political debate over state use of torture. Critics of torture charge that it is immoral because it involves the inhumane treatment of human beings. These critics describe torture as even worse than death since “torturers deprive the tortured of every means of suicide, fearing that the tortured will choose death over further torture if given the chance” (Davis, 2005, p. 165; also see Sussman, 2005, p. 15; for a contrasting point of view, see Miller, 2008). From this moral absolutist point of view, torture and related abuses should be absolutely banned because they are “antithetical to the entire concept of human rights. Rights define the limits beyond which no government should venture. To breach those limits in the name of some utilitarian calculus is to come dangerously close to the ends-justify-the-means rationale of terrorism. By contrast, a society that rejects torture affirms the essential dignity and humanity of each individual” (Roth & Worden, 2005, p. xiii).

However, a number of scholars have argued that individual acts of torture by state officials are warranted in extreme situations. These scholars criticize the moral perfectionism of absolutists who prefer to “let justice be done though the heavens fall” (Levinson, 2004) and argue that in some cases torture constitutes a lesser evil for a greater good. According to this consequentialist analysis, it is acceptable to torture individual terrorist suspects in order to protect the well-being of large numbers of innocents (Bowden, 2003, pp. 53–54; Posner, 2004, pp. 293–294). According to Richard Posner (2006, p. 85), constitutional limitations on brutal interrogation are not applicable if they are necessary to ward off a great evil: “Many consciences will not be shocked at the use of torture when it will ward off a great evil and no other method would work quickly enough to be effective.” Such arguments see torture as a kind of “noble cause corruption” in which violations of legal procedures are sometimes necessary in order to obtain moral outcomes (Wahl, 2014, p. 814).

Consequentialist scholars argue that decisionmakers sometimes have to choose between two evils in what is commonly referred to as the problem of dirty hands. Alan Dershowitz (2004), for example, contends that state officials have to make hard judgments about choices between evils and are often not in the position simply to refuse to act in an evil fashion. Michael Walzer (2004) argues that it is impossible to govern innocently, and that a given action might be a moral wrong and yet, considered in utilitarian terms, would still be the right thing to do. Jean Bethke Elshtain (2004, p. 87) insists that “far greater moral guilt falls on a person in authority who permits the deaths of hundreds of innocents rather than choosing to ‘torture’ one guilty or complicit person.” Fritz Allhoff (2003, pp. 127–129) goes even further and supports the use of torture to prevent future threats from occurring provided there is a reasonable expectation that the suspect has relevant information about a threat that poses a significant and imminent danger and provided that there is a reasonable expectation that information obtained through torture can prevent a significant threat from being realized.

In addition to the argument that torture secures more human rights than it infringes, justifications for torture often point to an underlying asymmetry of power that necessitates the resort to torture. As Ben Saul (2008, p. 8) explains, modern democratic societies are considered particularly vulnerable to terrorist attacks, leading to the assertion “that the terrorist tactics—the risk of exposure to indiscriminate death at any moment—must be met by measures of a proportionate intensity, including torture where necessary.” In the face of the danger posed by terrorism, the use of torture by democratic institutions can be seen as a type of preemption. Mark Danner (2004, p. 39) cites the logic articulated by a French intelligence officer in Algeria as depicted in the 1965 film Battle of Algiers:

a traditional army can defeat a determined guerrilla foe only through superior intelligence; superior intelligence can be wrested from hardened insurgents in time to make it “actionable” only through the use of “extreme interrogation”—torture; therefore, to have a chance of prevailing in Algeria the French army must torture.

Given the gap between rhetoric and reality, some scholars have called for a more pragmatic approach, arguing that the use of torture should be regulated rather than proscribed. Alan Dershowitz (2004, pp. 259, 266–267) maintains that the better question to ask is whether torture should be allowed to continue “below the radar screen, without political accountability” or whether to require authorization from top political or judicial leaders as a precondition to the infliction of any type of torture; from Dershowitz’s perspective, a “realistic” emphasis on accountability would reduce hypocrisy and minimize the occurrence of torture. Mirko Bagaric and Julie Clarke (2007, pp. 4, 12) take this argument one step further, contending that torture is “an effective means of gathering information” and is “morally permissible where it is the only means available to save innocent lives.” From Bagaric and Clarke’s perspective, those who advocate an absolute ban on torture adopt an inappropriate focus on individual rights, ignoring what is important for the collective. A number of other scholars forward similar arguments, insisting that torture is morally justified when it is used to save innocent lives, especially since torture (rather than killing) is only a temporary infringement of the terrorist’s autonomy (Allhoff, 2003; Bowden, 2003; Machan, 1990; Miller, 2008). Some individuals associated with designing and implementing coercive interrogation policies agree that such policies were necessary to stop terrorists and prevent more bloodshed. While insisting that the techniques he recommended were actually less brutal than “unproven and perhaps harsher techniques made up on the fly that could have been much worse” (quoted in Taguba & Cooper, 2017, p. 119), psychologist James Mitchell, who oversaw Survival, Evasion, Resistance, and Escape (SERE) training for the US Air Force and adapted such tactics for use by the CIA, insisted that these techniques produced valuable intelligence and led to the capture of high-profile targets (Mitchell, 2016). Similarly, former CIA director Michael V. Hayden (2016) insists that—despite the fact that “there were occasional mistakes”—the worst abuses did not happen under his watch and the enhanced interrogation that he did authorize produced vital information about al Qaeda.

Critics of torture, however, question its effectiveness. Bowden (2003, p. 55) cites reports that claim that interrogation of captured terrorist leaders yielded important information and helped foil violent plots, but he also notes that there is no way to corroborate these stories. Experiments with mind-altering drugs have failed to produce a consistently reliable means of inducing subjects to divulge information that they do not want to. Sensory deprivation and isolation are generally more reliable, but even then, experimental results varied from person to person (Bowden, 2003, pp. 57–58). Some captives will be more inclined to talk if threatened with death; others will give up and be less inclined to talk (Bowden, 2003, p. 60). Other studies doubt whether torture allows interrogators to obtain more and better information than non-coercive methods. Of 625 instances of torture in France between 1500 and 1750, 67–95% of captives never confessed. The German Gestapo could not get precise information about the French resistance movement and only 5% of 400 airmen in the Vietnam War issued anti-US propaganda despite the widespread use of torture by both governments (Arrigo, 2004). During World War II, faced with “a fanatical and implacable enemy, intense pressure to achieve quick results, [and] a brutal war in which the old rules no longer seem to apply,” US military interrogators found through experience that humane interrogation was much more effective than torture; military interrogator Marine Major Sherwood F. Moran stated that in his and others’ experience,

strong-arm tactics simply did not work. Stripping a prisoner of his dignity, treating him as a still-dangerous threat, forcing him to stand at attention and flanking him with guards throughout his interrogation . . . invariably backfired. It made the prisoner “so conscious of his present position and that he was a captured soldier vs. enemy intelligence” that it “played right into [the] hands” of those who were determined not to give away anything of military importance.

(Budiansky, 2005, pp. 32–33)

Similarly, the man described as the Nazis’ most successful interrogator, Hanns Scharff, enjoyed great success by building rapport with captured Allied pilots and treating his prisoners with dignity. After the war, the US Air Force paid him the ultimate compliment by inviting him to America to teach their interrogators. Indeed, a recent study of the so-called “Scharff technique,” which consists of a friendly approach that makes claims rather than pressing for information in order to create an illusion of knowing it all, has been found to be particularly effective in convincing individuals to reveal more, and more precise, information (Oleszkiewicz et al., 2014).

More recent experimental studies suggest that subjecting individuals to extreme conditions (including food and sleep deprivation) can lead to psychosis and the formation of false memories and that physical pain (caused by submerging participants’ hands in ice water) makes individuals more likely to reveal false information (Houck & Conway, 2015; Morgan et al., 2006). Research on civilian criminal interrogations show that the more coercive the interrogation, the more likely it is to elicit a false confession. Although trained interrogators are more confident in their ability to distinguish between true and false confessions as well as guilty and innocent subjects, studies shown that they are often deceived. Their overconfidence makes them more likely to believe that others are lying to them and this makes them more likely to resort to coercion (Constanzo & Gerrity, 2009, pp. 183–186). Tony Camerino, a former senior interrogator with a special operations task force who saw sleep-deprived prisoners frequently during his time in Iraq, insisted that sleep deprivation “absolutely” harms memory and “leads to inaccurate information” (Stone, 2016). Former SERE instructor Malcolm Nance rejected the use of waterboarding, which was a part of resistance training for certain US soldiers until 2007, asserting that it does not elicit reliable information but rather generates false confessions: “The captive will say absolutely anything and agree to anything to make the torture stop” (Stone, 2016). A recent study shows that under conditions of extreme sleep deprivation, many people will confess to crimes they did not commit (Frenda et al., 2016).

While the CIA claimed that interrogations produced unique intelligence that saved lives, it took no position on the question whether this intelligence could have been obtained through other means (Johnson et al., 2016, p. 131). According to researchers at the Carr Center for Human Rights Policy, this obscures “the long-standing consensus among interrogation professionals that rapport-building methods are both more humane and more effective” (Johnson et al., 206, p. 131). Colonel (Ret.) Stuart Herrington, a military intelligence officer with notable success “turning” South Vietnamese enemy soldiers, comments on the problems he observed while inspecting detention facilities in Guantánamo and Iraq. Herrington (quoted in Pryer, 2009, p. xvi) argues for the superiority of rapport-based approaches over torture, insisting that “virtually all experienced and professional interrogators” understand that “interrogation was not about physical mistreatment, but about outwitting and even recruiting the subject. . . . How could anyone think that abusing prisoners was effective, let alone wise, moral, advisable, or good for our country’s image?” The 2006 Army Field Manual on Interrogation asserts that the “Use of torture is not only illegal but also it is a poor technique that yields unreliable results, may damage subsequent collection efforts, and can induce the source to say what he thinks the HUMINT collector wants to hear” (US Army, 2006, pp. 5–21). Ali Soufan, an Arabic-speaking FBI interrogator, was able to convince top al Qaeda operatives, including Abu Zubaydah, to cooperate with US forces. Soufan writes that it was a rapport-based approach, based on understanding of language, culture, and religion, that convinced Zubaydah to identify Khalid Sheikh Mohammed as the mastermind of 9/11, and Soufan goes on to criticize the fact that once psychologists and amateur interrogators from the CIA destroyed this rapport through brutality, detainees stopped providing substantial intelligence (Soufan, 2011, pp. 373–410). Similarly, one of the professional interrogators who uncovered intelligence that led to the successful US air strike against Abu Musab al-Zarqawi, leader of al Qaeda in Iraq, wrote that US interrogators were far more effective when they convinced (rather than coerced) their sources to talk, noting research by the Intelligence Science Board and other studies that validated “the opinions of experienced interrogators: rapport-building approaches produce the best chance of success, a multidisciplinary approach can approve our methods, and cultural knowledge is vital to convincing detainees to cooperate” (Alexander & Bruning, 2011, p. xiv).

Neuroscientist and brain researcher Shane O’Mara argues that the effects of torture are the reverse of those intended due to psychopathological changes in the person who is tortured. He notes that brain regions concerned with intention and general behavioral control become less responsive as a result of chronic and extreme stress, citing multiple studies of combat and elite soldiers as well as normal populations that demonstrate that chronic and severe stress compromises memory, mood, and cognitive function: “The effect of imposing such extreme stressors causes a significant degradation in cognitive performance. There is no basis for expecting that imposing such stressors, especially in combination, is going to facilitate recall by people who are being subjected to interrogation” (O’Mara, 2015, pp. 132–133). While harming and humiliating prisoners can get them to say what interrogators want them to say, torture is an ineffective way to produce reliable, accurate information. Victims of torture are likely to fabricate evidence and tell interrogators what they wanted to hear, generating false information that results in a waste of time and resources (O’Mara, 2015, pp. 36–37). A prominent example of this comes from the case of Ibn al-Shaykh al-Libi, a high-ranking member of al Qaeda who ran a training camp in Afghanistan. After being rendered to Egypt, where he was tortured, al-Libi lied about connections with Saddam Hussein, providing the smoking gun that the administration desperately wanted to show that an invasion of Iraq was necessary to prevent chemical or biological weapons from falling into the hands of terrorists. In fact, al-Libi later admitted that he had fabricated the information “illustrating the extraordinary power of torture to force false confessions and compromise the intelligence process” (McCoy, 2011, p. 44). As CIA counter-terrorism expert Dan Coleman (quoted in Mayer 2011, p. 151) explained,

It was ridiculous for interrogators to think Libi would have known anything about Iraq. . . . He wouldn’t have had anything to do with Iraq. Administration officials were always pushing us to come up with links, but there weren’t any. The reason they go bad information is that they beat it out of him. You never get good information from someone that way.

False information is also a problem when victims of torture are innocent and have no way of complying; in order to end their torture, they likely made up false information. Henry Shue (1978, p. 135) notes that “systems of torture are notoriously incompetent. The usual situation is captured with icy accuracy by the reputed informal motto of the Saigon police, ‘If they are not guilty, beat them until they are’.”

In addition to questions about the tactical efficacy of torture as a method of interrogation, academic scholars and policymakers have raised concerns about the strategic consequences of torture. The decision to indiscriminately subject prisoners to violent and dehumanizing treatment undermined the willingness of critical constituencies to cooperate, alienated civilians who may otherwise provide authorities with intelligence, and lost the campaign for hearts and minds. This makes it more difficult to collect intelligence. In an official statement recommending that the United States should no longer employ “enhanced interrogation techniques,” Director of National Intelligence Dennis C. Blair (2009) argued that such techniques may produce valuable information in some instances, but he doubted whether they are necessary to obtain such information: “the bottom line is these techniques have hurt our image around the world, and the damage they have done to our interests far outweighed whatever benefit they gave us and they are not essential to our national security.” Similarly, Philip Zelikow (2012, pp. 43–44), former deputy to Secretary of State Condoleezza Rice and member of the Presidential Intelligence Advisory Board under Presidents George W. Bush and Barack Obama, the US government “program of coolly calculated dehumanizing abuse and physical torment to extract information” was a mistake that damaged the stature of the United States and the efficacy of US policies and operations.

Researchers at the Carr Center for Human Rights Policy found that reports of torture by US soldiers at Abu Ghraib and in Guantánamo Bay were a strategic liability as they spurred foreign extremists to join insurgents in Afghanistan and Iraq; State Department cables, interviews with captured terrorists, reports by Saudi authorities, and martyrdom videos show that US use of torture at Abu Ghraib and Guantánamo enabled Islamist militants to paint the United States as a villain and made it more difficult for the United States to recruit potential allies (Johnson et al., 2016, pp. 122–125). Reports of the use of torture discouraged informants from coming forward, alienated local populations, and turned innocent victims into enemies (Rejali, 2007, pp. 458–460; Sussman, 2005, p. 12). Former Navy counsel Alberto Mora (quoted in Cohn, 2017), who testified to the Senate Armed Services Committee, concurs that “there are serving US flag-rank officers who maintain that the first and second identifiable causes of US combat deaths in Iraq . . . are, respectively, the symbols of Abu Ghraib and Guantánamo.” In an empirical study of the effects of violations of physical integrity rights, including the use of torture, on domestic and transnational terrorist attacks, James Walsh and James Piazza (2010) find that violations fuel terrorism by making it more difficult to collect intelligence on terrorists and undermining domestic and international support for counterterrorism efforts.

Along similar lines, scholars have advanced a number of objections to the use of torture, citing unintended harms, destruction of political and social institutions, and the radicalization of populations that identify with those tortured. Richard Matthews (2006, pp. 71–76) warns that establishing a utilitarian rationale for torture can all too easily lead to the institutionalization of torture, as the establishment of a utilitarian rationale tends to preclude logical limits on the kinds (and targets) of torture that may be employed; in addition, the need for “practiced” torture in order to ensure methods will be successful compromises many individuals and raises questions about wider impact on public life. Similarly, Henry Shue (2006, p. 236) argues that successful torturers need training but this entails the institutionalization of torture and creation of a torture bureaucracy (also see Arrigo, 2004; Wolfendale, 2006). He argues further that “to try to leave a constrained loophole for the competent ‘conscientious offender’ is in fact to leave an expanding loophole for a bureaucracy of routinized torture” (Shue, 2006, p. 238). “One can imagine rare torture but one cannot institutionalize rare torture—as The Torture Papers show” (Shue, 2006, p. 238).

Scholars who are concerned that abusive treatment will become the norm point to cases in which officially sanctioned “aggressive interrogation” techniques deteriorated into a system of routine abuse, citing Israel and the United States as examples. They worry that torture tends to become an entrenched, ever-widening practice; though initially justified as an emergency measure, it tends to become a permanent feature (Sussman, 2005, p. 12). In addition, critics worry that torture tends to be applied to broader groups, taking in more suspects than those approved and leading to harsher methods than were originally authorized (Rejali, 2007, p. 24). According to Rejali (2007, p. 455), “torture breaks down professionalism”—there is no effective guard against an inevitable decay in professionalism due to the fact that torturers are forced to push harder and use more severe methods to overcome some victims’ high threshold for pain and interrogators vie to break the prisoner first, with competitive rivalry between agencies gathering information. This can produce a “narrow professionalism, a kind of tunnel vision in which torture becomes an end unto itself” (Rejali, 2007, p. 455).

Torture has also been criticized for its corrosive effect on those who employ it. It has been found to undermine professional and bureaucratic authority, encouraging police and military personnel to take short-cuts rather than work on other methods of crime detection and intelligence analysis. This can lead to the growth of an uncontrolled, unaccountable bureaucracy within bureaucracy (Rejali, 2007, pp. 456–8). It also has a negative impact on medical professionals, eroding medical ethical norms (Soldz, 2011). Torture has been found to cause lasting trauma not only in survivors but also in perpetrators, who are often haunted by their experience and suffer from post-traumatic stress disorder (Costanzo & Gerrity, 2009, pp. 189–193; DePillis, 2014; O’Mara, 2015, pp. 137–139). The National Vietnam Veterans Readjustment Study of more than 3,000 veterans, released in 1983, found that exposure to abusive violence—including torture of Vietnamese prisoners—had the strongest correlation with the incidence of PTSD and produced “toxic levels of guilt and shame” (Rejali, quoted in DePillis, 2014). O’Mara summarizes findings that show that humans have a specialized brain network (the “pain matrix”) that automatically and reflexively responds to distress, pain and despair in another and argues that those who conduct torture on behalf of the state are terribly affected by what they have done, for reasons rooted deep in human beings’ brain circuitry (O’Mara, 2015). This is confirmed in a number of memoirs describing the “moral injury” of being thrown into conditions where individuals were pressured to employ harsh interrogation techniques and developed depression and PTSD due to the cognitive dissonance of seeing and doing things that conflicted with their own deeply held values (Fair, 2016; Fallon, 2017; Lagouranis, 2008; Phillips, 2012).

The main arguments for abolition of torture are based on its inhumanity and injustice. Henry Shue argues that what makes torture, as opposed to some uses of deadly force, morally wrong is the fact that in order to torture someone, the agent must be in a position of complete power—i.e., not in any danger himself. There is no circumstance in which we would have to torture in self-defense. Thus, torture violates a basic principle of just combat: the prohibition against attacking the defenseless. “At least part of the peculiar disgust which torture evokes may be derived from its apparent failure to satisfy even this weak constraint of being a ‘fair fight’” (Shue, 1978, p. 130). The victim cannot fight back, has already lost, is defenseless: “It is in this respect of violating the prohibition against assault upon the defenseless, then, that the manner in which torture is conducted is morally more reprehensible than the manner in which killing would occur if the laws of war were honored. In this respect torture sinks below even the well-regulated mutual slaughter of a justly fought war” (Shue, 1978, p. 130).

Shue considers the counter-argument that the victim of torture may not be defenseless: while he cannot resist or shield himself against anything the torturer does to him, he may nonetheless be in a position to inflict harm (e.g., by refusing to reveal the location of a bomb). “The victim is not, on this view, utterly helpless in the face of unrestrainable assault as long as he or she holds in reserve an act of compliance which would satisfy the torturer and bring the torture to an end” (Shue, 1978, p. 130). For those who defend the use of torture in exceptional circumstances, the analogy to a ticking bomb scenario is often evoked. Uwe Steinhoff (2013, pp. 60–67), for example, points to actual examples when police captured kidnappers and tortured them in order to obtain information about where their respective victims were hidden and presumably in grave danger; he characterizes this as a contest between the rights of an innocent victim and an unjustified aggressor and insists the victim’s rights should triumph—as they do when we kill aggressors in self-defense, or imprison them for crimes, despite the otherwise presumptive rights to life or to liberty.

Scholars like Alex Bellamy and John Lango acknowledge the importance of protecting the security of civilians—especially in exceptional circumstances that involve an existential threat to thousands if not millions of people—but they nonetheless recommend that the prohibition on torture should be maintained. According to Bellamy (2006, p. 124), “desperate necessity may dictate, though not excuse, its use.” Those who would torture terrorist suspects in a case of such desperate necessity should not do so with the expectation that their act is morally or legally justified; a normative context hostile to torture must remain in place (Bellamy, 2006, pp. 146–147). For Lango, the right not to be “tormented” must be weighed against the right to self-defense, especially in the case where the survival of large groups of people is at stake; nonetheless, he insists that it is impermissible to override the former with the latter. Instead, the latter may be “set aside” where there is just cause (such as prevention of genocide), where torture is regulated correctly by legally authorized agents, where the benefits outweigh the harms, and where it is used as a last resort (Lango, 2011, pp. 105–110).

In contrast, critics of torture like Eitan Felner criticize “ticking bomb” arguments for resting on extremely improbable assumptions. It presumes that there is a bomb that will explode if not neutralized; the suspect knows where the bomb is located and the bomb has not been moved since the suspect’s arrest; the suspect will provide the necessary information if and only if tortured; the information will enable us to discover and disarm the bomb in time; etc. (Felner, 2005, p. 32). Shane O’Mara (2015, p. 114) adds another objection, arguing that:

it is probable, on the basis of what we know about the neurophysiology of pain, that there is no technique for inducing pain that is sufficiently severe so as to cause a well-conditioned and well-prepared individual to rapidly want to reveal information” and “supervening states of pain” are likely to cause a dissociative state that impairs the ability to recall items of information from memory.

Given the implausibility that all these conditions would be met, Felner (2005, p. 42) concludes that the ticking-bomb case is “an interesting case for philosophy students to ponder” but misleading as a basis for public policy. Similarly, Shue (1978, pp. 141–142) admits that it is possible to imagine a hypothetical case in which torture would be permissible, but he goes on to insist that

hard cases make bad law, and . . . artificial cases make bad ethics. If the example is made sufficiently extraordinary, the conclusion that the torture is permissible is secure. But one cannot easily draw conclusions for ordinary cases from extraordinary ones, and as the situations described become more likely, the conclusion that the torture is permissible becomes more debatable.

Defenders of the use of interrogational torture like Alan Dershowitz insist that there are actual ticking bomb scenarios and point to the case of Abdul Hakim Murad as a paradigmatic case in which the torture of a would-be terrorist prevented a major disaster. Legal scholar Stephanie Athey (2007) counters this example by presenting evidence that Murad’s torture actually produced little useful information as a computer found in Murad’s apartment held key details of the plot, making his torture unnecessary. Similarly, CIA agent Michael Scheuer (2008) argued that the information collected from Murad’s apartment, not the information gleaned from Murad’s torture, provided actual useful intelligence.

This raises another objection to the “lesser evil” rationale insofar as this justification can open the door to using coercive interrogation techniques under a wide variety of circumstances and against a potentially broad group of suspects. As proof, Felner (2005, p. 43) point to the case of Israel, where the limited authorization of physically coercive interrogation in exceptional cases devolved into routine torture, as the government applied such techniques not only against guilty individuals but broadly targeted groups. The French experience battling nationalist guerrilla forces in Indochina and Algeria offers a similar case, as does that of the United States in Iraq.

While an increasing number of states have been willing to contest the international norm against torture, other states have pushed back against this. On the one hand, some countries began citing US practices to justify their own human rights abuses and even began adopting similar policies. Russia cited US detention policies in an effort to deflect criticism of its treatment of Chechen prisoners while Colombia characterized rebels as “illegal combatants” ineligible for protection under international law, much as the United States had labeled suspected al Qaeda terrorists. Ethiopia and Kenya turned to extraordinary rendition for Somali militants. China, Syria, and India rejected US criticisms of human rights violations, arguing that the United States “was guilty of horrific human rights violations and thus had no moral basis to speak on such matters” (Schmidt & Sikkink, 2019, pp. 129–131). On the other hand, other countries limited policy cooperation with the United States and placed additional safeguards on humane treatment of detainees due to an expectation of accountability and fear of implicating their own officials in unlawful activities (Schmidt & Sikkink, 2019, pp. 111–112, 118). In an empirical study of global compliance with the Convention Against Torture, Averell Schmidt and Kathryn Sikkink found that states that actively collaborated with the US program of rendition, detention and interrogation experienced increased levels of torture relative to countries there were not involved with these policies. Yet democratic states, where the expectation of enforcement and accountability are greatest, defended the international norm against torture. Indeed, democratic states that actively supported US detention policies did not exhibit worsening human rights practices (Schmidt & Sikkink, 2019, pp. 117–118).

US actions in the global war on terror have set a troubling precedent for human rights, as the United States has upgraded ties with rights-abusing states and encouraged a greater degree of legal and cultural acceptance for the situational use of torture. At the same time, however, the normative prohibition against the use of torture continues to have “residual constraints” on behavior; although states may seek to reinterpret the anti-torture norm, they cannot simply cast it aside (Foot, 2006, pp. 139–140, 144).

Torture in Popular Culture and Public Opinion

Not surprisingly, torture has been an increasing part of public discourse since 9/11 and this has been reflected in popular culture as well. Since 9/11, representations of torture have become much more common on television and in the media, serving as a “chilling plot device driving dramatic revelation of truth, and where the end justifies the means” (Lowth, 2017, p. 126). In their study of the impact of popular culture on world politics, Christina Rowley and Jutta Weldes (2016, pp. 21–22) point to a huge increase in the number of torture scenes aired on primetime US television between 2002 and 2007 compared to 1995–2001 as well as a transformation in the character of the torturers: “while previously only bad guys tortured, thereby delegitimizing the practice, torture after 9/11 was perpetrated by “heroic American characters” on the grounds that torture is “necessary, effective, and even patriotic.” Jinee Lokaneeta (2011, p. 109) cites evidence that “the number of times torture is shown on television has grown from four times in a year before 2001 to more than one hundred times per year in the post-9/11 period” while Casey Delehanty and Erin Kearns (2019) add that torture is a common feature of films, with 60% of the top-grossing films from 2008 to 2017 containing at least one torture scene and torture generally depicted as effective, at least when used by protagonists.

Free from basing plot lines on actual evidence—arguably because popular culture is merely entertainment—media representations have contributed to a growing sense that torture is a necessary, effective, and justified response to terrorism (Mayer, 2008; Steele, 2010, pp. 154–162). The popular television series 24, which debuted in 2001 and includes frequent, graphic depictions of torture, has been reported to have given US military personnel “lots of ideas” about interrogation models (Clucas, 2009, pp. 178–179; Sands, 2008, pp. 73–74; Steele, 2010, p. 154). 24 revolves around repeated variations of the ticking bomb scenario. In each episode, Jack Bauer, who works for a fictional government agency known as the Counter Terrorist Unit (CTU), has just 24 hours to prevent some catastrophic terrorist attack, often involving weapons of mass destruction and a potential death toll of hundreds of thousands. Agent Bauer stops at nothing and his ruthlessness is vindicated over and over again. Although he regularly resorts to torture, he is framed as a selfless hero, willing to sacrifice himself and morally justified because of the noble cause that he serves.

While the show’s producers insisted that 24 was merely meant as entertainment, both scholars and policymakers have warned about the show’s effects. Bev Clucas (2009, pp. 198, 201) argues that the show has led to greater acceptance of torture on the part of viewers since “in repeatedly portraying torture as necessary, valuable, legally and morally permissible, and the proper remit of the hero . . . 24 stealthily, seductively convinces us that torture is a serious option, in fact a necessary, mandatory and inevitable right response to suspicion and time pressure and the need for information, and does so in the guise of entertainment.” Rowley and Weldes (2016, p. 22) argue that 24 reinforces the image of interrogational torture as an effective means to break suspects and compel them to provide useful information; torture comes to be seen as rational, necessary (due to ticking time bomb logic), successful (in producing sensitive and accurate information), and thus legitimate. Other popular culture depictions of torture, as in the 2012 film Zero Dark Thirty and the Showtime television series Homeland, arguably offer a more complex depiction of torture but continue to suggest that enhanced interrogation techniques are an understandable part of counterterrorism strategy, yielding actionable intelligence that increases national security (Pears, 2016; Schlag, 2019).

Louise Pears (2016) found notable variation in viewers’ responses to depictions of controversial counter-terrorism strategies, including enhanced interrogation techniques. While some viewers agreed that extreme measures are necessary to keep citizens safe, others took a more critical perspective (Pears, 2016, pp. 86–89). Yet a study by Erin Kearns and Joe Young (2014) provides experimental evidence for the impact of media depictions of torture, finding that people who viewed dramatic depictions of torture—whether torture was portrayed to be effective or ineffective—were significantly more supportive of torture than were those who did not view the clip. Gabi Schlag argues (2019, p. 4) that popular culture not only serves as a mirror of contrasting perspectives over controversial policies but also influences what people think of such policies; not surprisingly, then, the director and writer for Zero Dark Thirty enjoyed the eager cooperation of the CIA, including “unprecedented access” to details about the operation against Osama bin Laden (Schlag, 2019, p. 6).

Officials and policymakers have also made close linkages between political and popular imagery. US Brigadier General Patrick Finnegan expressed concern that 24 was having a significant influence on West Point cadets, convincing them that torture was an effective, necessary and legitimate tactic in the War on Terror; similarly, a retired military leader noted that positive depictions of torture in popular culture had “a significant impact on how interrogations are conducted in the field. US soldiers are imitating the techniques they have seen on television—because they think such tactics work” (Dunn, 2008, p. 171; Rowley & Weldes, 2016, p. 12). Former Supreme Court Justice Antonin Scalia also invoked Jack Bauer, albeit in a much more approving manner. At a law conference in Ottawa in 2007, in response to a remark by a Canadian judge that security agencies in law-abiding countries thankfully do not subscribe to the mantra “what would Jack Bauer do?” Scalia gave a spirited defense of both Jack Bauer and the use of torture, arguing that law enforcement officials deserved great latitude in times of crisis: “Jack Bauer saved Los Angeles. . . . He saved hundreds of thousands of lives. . . . Are you going to convict Jack Bauer? . . . Is any jury going to convict Jack Bauer? I don’t think so” (quoted in Benen, 2014; Rowley & Weldes, 2016, p. 21). Jinee Lokaneeta (2011, p. 110) notes that Justice Scalia did not expressly refer to Jack Bauer in a Supreme Court opinion, he did articulate the underlying logic of a “necessity exception” during the oral arguments in Chavez v. Martinez (2003), indicating the possibility of accepting excessive violence in some instances.

Popular culture representations arguably reinforce a “torture myth” consisting of three assumptions: (a) that torture is only used against hardened terrorists; (b) that those who are being tortured have valuable information that can save lives or avert future attacks; (c) torture effectively forces terrorists to divulge such information (Bell, 2008, p. 340). Such assumptions coincide with a general belief that torture is effective because coercion elicits a response and the popular ticking bomb scenario leads people to imagine that there is not time to adopt the experience-tested method of building rapport. Moreover, enemies are perceived as hardened fanatics on whom “soft” persuasion will not work and who may deserve to be punished (Janoff-Bulman, 2007, pp. 430–433). Yonatan Lupu and Geoffrey Wallace (2019) similarly find that individuals are generally more concerned about protection from violent opposition groups than about the appropriateness or legality of human rights abuses; thus, when opposition groups are violent, support for human rights abuses increases significantly and citizens may even consider it a moral imperative for their government to resort to such practices in order to ensure public order.

These views are reflected in growing, albeit divided, acceptance of the use of torture. Immediately following September 11, 45% of Americans surveyed were willing to have the government torture known terrorists if they knew details about future terrorist attacks in the United States; significantly, a slight majority of 53% were not (Roper Center, nd). Following the publication of the Abu Ghraib pictures in April 2004, support for the use of torture against suspected terrorists dropped to 43%, and a majority of Americans remained opposed to torture and enhanced interrogation techniques throughout the Bush presidency, even in order to thwart an imminent terrorist attack and even when assured that torture would work to get crucial information (Gronke et al., 2010, p. 437). Public sentiment regarding the use of torture began to shift in 2009, during the Obama administration, when a slight majority came to approve the use of torture and believed that the CIA’s treatment of suspected terrorists produced important information that could not have been obtained by other means. This coincided with former Vice President Dick Cheney’s public defense of the use of coercive interrogation techniques and increasing partisan divisions, whereby Republicans came to adopt more hawkish views on national security and crime, suggesting by increasing support for torture and the death penalty (Gronke et al., 2010, p. 438).

Public opinion polls conducted by the Pew Research Center in 2016 suggest that US citizens remain divided over whether US use of torture is ever acceptable, with 49% rejecting torture outright and 48% accepting torture under certain circumstances (Tyson, 2017). This masks considerable partisan differences, as conservative Republicans were 54% age points more likely than liberal Democrats to say that there are circumstances when torture is acceptable; although the magnitudes were smaller, women, younger adults and minority respondents were more likely to oppose the use of torture than men, older adults and white respondents (Tyson, 2017). Rosemary Foot offers an explanation for these conflicting tendencies, pointing to different ideas about the kind of reputation that the United States should cultivate. On the one hand, some believe that the United States should act as a responsible sovereign, defending and upholding human rights; on the other hand, others emphasize that the United States needs to be an effective sovereign in order to deal with threats like terrorism (Foot, 2006, pp. 137–138). Whereas the former reacted with disgust and dismay over the use of torture, the latter interpreted US willingness to resort to harsh interrogation methods as a sign of mastery over the enemy (Foot, 2006, p. 138).

Empirical studies also suggest that framing is critical. When respondents are prompted to think about the 9/11 terrorist attacks, they are more likely to express slim support for torture whereas respondents display substantial opposition to the use of torture if the specific tactics used on detainees or broader consequences for American interests abroad are emphasized (Blauwkamp et al., 2018). Americans’ support for torture is considerably stronger if the detainee has an Arabic name and when the alleged crime is terrorism; similarly, public support for harsh interrogation practices was found to be greater against terror suspects identified as Muslim than those described as domestic, right-wing terrorist suspects (Conrad et al., 2018; Piazza, 2015). This coincides with research showing that decisions on whether to use coercive interrogation techniques tend to be based on whether a suspect fits a “terrorist profile” rather than on solid evidence, with cultural differences increasing the likelihood of error (Costanzo & Gerrity, 2009, pp. 184–189).

Conclusion

At the same time that torture is sometimes justified as an exceptional means to serve a moral cause, the strength of the universal norm against torture and torture’s inherent repulsiveness mean that officials generally deny engaging in such practices. Michael Steele notes that images of official torture unmask the unappealing aspects of power, forcing societies to question the identity that they have constructed for themselves. When confronted with evidence such as the images in photographs from Abu Ghraib, American citizens’ sense of national identity was rattled since they want to believe, in the words of Senator John McCain, that their nation “stands for something more in the world—a moral mission, one of freedom and democracy and human rights at home and abroad” (quoted in Foot, 2006, p. 144). At the same time, however, depictions of torture have become much more common on television and in the media since 9/11, contributing to a growing sense that torture is a necessary, effective, and justified response to terrorism.

The rise of populist governments in the United States and elsewhere has renewed debate on the topic of torture. As a presidential candidate, Donald Trump vowed to reinstate torture, including treatment that would be “a hell of a lot worse than waterboarding,” and boasted that it would not bother him “even a little bit.” He insisted that torture works but added that even “if it doesn’t work, they deserve it anyway, for what they’re doing” (Johnson, 2015). As president, he pledged to confer with his Cabinet before considering any changes to US policy, noting pushback from members of the military and the foreign policy establishment, including his first Secretary of Defense, James Mattis. However, the Trump administration included a number of other officials who publicly endorsed waterboarding and other harsh interrogation techniques, called for CIA black sites to remain open, and dismissed criticism of detainee treatment at Guantánamo as “foolishness” (Cohn, 2017; Johnson, 2016). In January 2017, leading newspapers published copies of a draft executive order calling for a policy review of a 2009 decision to end “black site” prisons overseas and limit interrogators to the non-abusive techniques contained in the US Army Field Manual. Although the administration denied the report and circulated a different draft order on detainees, it continued to send mixed signals on the legitimacy of torture as an acceptable interrogation technique (Miller, 2017). The appointment of Gina Haspel as director of the CIA, despite her history of overseeing the use of torture at US secret prisons in the war on terror and her role in destroying evidence documenting these instances of torture, sent another mixed signal. During the confirmation process, Haspel circulated a statement indicating that she had changed her position on torture while simultaneously continuing to defend its efficacy: “While I won’t condemn those that made these hard calls, and I have noted the valuable intelligence collected, the program ultimately did damage to our officers and our standing in the world. With the benefit of hindsight and my experience as a senior agency leader, the enhanced interrogation program is not one the CIA should have undertaken” (Scahill, 2018).

Global public opinion on government-sponsored torture is also divided. In a 2015 Pew survey, support for the use of torture against suspected terrorists to gain information to prevent attacks ranged from 25% in Latin America to 58% in the United States to 78% in Uganda (Wike, 2016). Much like Donald Trump, Brazilian President Jair Bolsonaro and Philippine President Rodrigo Duterte have boasted about their support for torture, playing on their supporters’ fear, cultivating disdain for political correctness, and pushing the boundaries of civility (Hunt, 2019; Simões, 2018). In fact, these controversies reflect a worrying tendency of disrespecting institutions and the rule of law. Societies that feel under threat more likely to strike out at those whom they fear; leaders can leverage that fear and count on democratic publics to look the other way.

While human rights nongovernmental organizations and UN bodies seek greater compliance with the prohibition against torture, scholars generally agree that democratic publics do not necessarily oppose the use of torture and even liberal institutions like independent judiciaries may find it difficult to successfully prosecute cases of torture (for a fuller discussion, see Evans, 2019). Even though torture challenges the way that we like to think of ourselves and want others to think of us, democratic publics are inclined to look the other way so long as politicians do not openly acknowledge their use of dirty actions like torture.

American Civil Liberties Union (ACLU). The ACLU website includes thousands of searchable documents related to torture as well as a link to the partially redacted investigative report produced by the Senate Select Committee on Intelligence that describes human rights abuses by the CIA’s post-9/11 program of detention, torture, and other abuse of detainees. The website also includes links to statements demanding accountability for the CIA torture program and observations on the merits of legal cases against the US for its unlawful rendition, arbitrary detention, forced disappearance and torture of suspected terrorists.

Amnesty International (AI). AI has documented torture for decades and regularly posts information on its website about torture practices in countries throughout the world, including annual reports on the state of human rights around the globe, as well as urgent action updates that contain information for letter writing campaigns calling for the release of prisoners of conscience at high risk of torture and other ill-treatment or even death.

Center for Constitutional Rights. The Center for Constitutional Rights focuses on promoting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights and its website contains extensive information and criticism of immigration sweeps, ghost detentions, extraordinary rendition, and other programs that deny individuals their right to due process. The website also includes descriptions of cases that have been brought against foreign officials and corporations for human rights abuses in US courts, as well as cases against US officials in foreign courts under the principle of universal jurisdiction.

Cingranelli–Richards (CIRI) Human Rights Data Project. The CIRI Human Rights Dataset contains data on government respect for 15 internationally recognized human rights in 202 countries from 1981 to 2011. It codes data from annual human rights reports produced by Amnesty International and the US Department of State and calculates a physical integrity index that measures state practices for torture, extrajudicial killing, political imprisonment and disappearances. The project was originally designed by Dr. David Cingranelli and Dr. David Richards.

Committee Against Torture (CAT). The CAT is the body of 10 independent experts that monitors implementation of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by its State parties. The website contains information about the CAT and its work, as well as country-specific information.

Documents on CIA Torture. In Salim v. Mitchell, a lawsuit filed in federal court in Washington State in 2015 by two former CIA detainees and representatives of a third who died in custody, psychologists James Mitchell and Bruce Jessen were charged with responsibility for designing a systematic program of torture used to interrogate terrorist suspects. The case was settled out of court in August 2017, but prior to settlement, previously secret documents were made declassified and made public, including CIA cables on the interrogation of Abu Zubaydah and his recollections of those experiences provided to his lawyers.

Guantánamo Testimonials Project. The Center for the Study of Human Rights in the Americas at the University of California Davis has collected testimonies of prisoner abuse at the US naval base at Guantánamo Bay, Cuba since 2005 as part of a long-term project to assess the effects of the US war on terror on human rights in the Americas. The website includes testimonies of prisoners, officials from US intelligence agencies, interrogators and military guards, military physicians and psychologists, defense lawyers, and the Red Cross.

Human Rights Watch. This nongovernmental organization grew out of the 1978 Helsinki Watch to become a leading defender of human rights. HRW investigates human rights violations, including torture, in countries throughout the world and publishes investigative reports of country practices as well as annual reviews of human rights practices around the globe.

National Security Archive. This NGO, founded in 1985 by journalists and scholars to check rising government secrecy and based at George Washington University’s Gelman Library, has a massive archive of declassified US documents. The award-winning archive includes tens of thousands of documents released through Freedom of Information and declassification requests, which has produced what one review called a “state-of-the-art index to history.”

Rule of Law Oral History Project. This project, part of Columbia University’s Center for Oral History Archives, was initiated in 2008 to explore the state of human and civil rights in the post-9/11 world and expanded in 2010 to study the statutory and constitutional challenges of the use of the detention facilities at Guantánamo Bay. The website includes an archive of interviews with former detainees, psychologists and activists, legal scholars, military prosecutors and officials, defense attorneys, judges, journalists and representatives of human rights NGOs.

World Organization Against Torture (Organisation Mondiale Contre la Torture, OMCT). Created in 1986, the OMCT is a coalition of international nongovernmental organizations dedicated to ending torture, summary executions, enforced disappearances, and all other cruel, inhuman, or degrading treatment. The OMCT website contains information about grave human rights violations and campaigns to protect victims and pressure governments to respect international human rights norms and prosecute the alleged perpetrators of human rights violations. The website also contains links to annual reports on the work of human rights defenders.

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