.png)
By Shaurya Mahajan
Keywords: Torture, Judicial Warrant, Morality, Justice, The Mauritanian Review
I. Introduction
The movie ‘The Mauritanian’ by Kevin Mac Donald depicts the detainment and torture of Mohammedou Slahi in Guantanamo Bay in the aftermath of the 9/11 terror attacks. While the movie takes us on an emotional rollercoaster, it also raises some profound questions and dilemmas. It highlights his illegal detention without cause, the advanced interrogation techniques, or torture, used to interrogate him, and the repressive nature of such practices. Stuart Couch, the man responsible for prosecuting Slahi, succinctly puts it this way: “What’s been done here is reprehensible” (The Mauritanian). The movie brings to the forefront, once again, the age-old Benthamite debate on torture and the dilemma: can it ever be justified? Torture or advanced interrogation techniques have been used since time immemorial as a state-sponsored tactic of violence, but in recent times, they have come to be condemned in the strongest terms and have been banned around the world. The War on Terror sparked in the aftermath of the 9/11 attacks, has reignited the debate around the morality of the global position of torture in light of practical realities and requirements. While the moral and ethical position with regard to torture is heavily debated, so is its efficacy. It is also important to distinguish between torture to convict and torture to get information that could save lives. In certain cases, the latter may be necessary and justified, but the former is something contrary to the basic principle of the right against self-incrimination and outside the scope of this paper. While “The Mauritanian” views Guantanamo Bay’s practice of torture as unjust and indefensible, this paper argues that when necessary and regulated, it harmonises normativity with reality, becoming a justified state practice.
II. Understanding the Torture Dilemma
A. The Justice Problem
The prohibition of torture is a peremptory norm under international law, and Article 2 of the UN Convention Against Torture further provides for “no exceptional circumstances whatsoever as justification.” It is one of the few global practices universally recognised as unjust and illegal. It is because of this universally accepted position that Nancy remarks in the film, “They built this place out of the reach of the courts for a reason” (The Mauritanian). But a deeper examination of this perception reveals that it is not the act of torture itself that is so unjust, but the framework and circumstances within which it usually operates. John Rawls, in A Theory of Justice, famously posits, “The principles of justice are chosen behind a veil of ignorance,” giving the concept of “the veil of ignorance,” according to which a truly just conception of society is one where we do not know our place in it. He specifically includes demographic aspects in this, but it can be juxtaposed with any situation where we do not have the necessary facts. The movie highlights the fact that Slahi was, in fact, not guilty and was held without trial for so many years before being released. It focuses on how the US’s assumption that he was guilty was based on insufficient evidence. Despite this insufficiency, the government is overconfident and has not assessed it from the sense of reason it requires or from the veil of ignorance. A particular exchange between Nancy and Stuart drinking beers in a prison gift shop in Guantanamo goes, “What if you are wrong? We are not. What if you are? You built this place and abandoned all your principles and all of your laws, and you are wrong?” (The Mauritanian). We see the intelligence agencies explain their position with a slightly cliché response: that it’s not possible to have all the facts in such situations. If we assume this statement to be true, we arrive at a position very similar to what Rawls asks us to imagine; we operate on a hunch or a conclusion reached through insufficient facts. The problem highlighted in the movie is not that he was tortured, but that he was innocent. This implies that if it were unequivocally clear that he was guilty, using torture was a justified approach—that it’s not the act of torture that is unjust or wrong, but subjecting an innocent to it. This leads us to question the nature and scope of the absolutist prohibition on torture, starting with the classic ticking bomb case.
B. The Ticking Bomb Scenario
The classic argument against the absolutist prohibition of torture is that of the ticking bomb case, eloquently explained by Dershowitz as “a captured terrorist knows the location of a ticking bomb that threatens hundreds of innocent lives; the only way to prevent mass murder is to torture the terrorist into disclosing the bomb’s location; there is no time for reflection; a decision must be made.”. The question here is: would we torture someone who had information that would save the lives of many more? As Strauss simply puts it – “torture would be allowed only if there were significant evidence that loss of life was imminent, and the only way to obtain the necessary information to prevent such a tragedy would be through the use of extreme measures, including torture”. The position here is eloquently exemplified by Dershowitz: “Everybody says they are opposed to torture. But everyone would do it personally if they knew it could save the life of a kidnapped child who had only two hours of oxygen left before death. And it would be the right thing to do.”. In this case, and such cases only, we would only reluctantly sanction torture. Even though there appears to be a collective affirmation and acceptance of this view, it is not without criticisms and counterpoints. The most popular and widely raised is the claim that such a situation is highly unlikely to emerge in real life, and if it indeed does, it should be left to the discretion of the law enforcement authorities and the people in charge of making the decision, effectively countering and questioning the very need for discourse on the subject.
C. Fallacy of Non-Existence and Shirking Responsibility
The counterargument that such a situation will rarely come true is inherently fallacious, for we need to determine what those responsible for people’s safety would be required to do if one day it does. This determination is, in a way, the very role of such hypotheticals in a discursive analysis. The suggestion that it should be left to the discretion of those responsible for making the decision is one of shying away from responsibility and the reality and outcome of our decisions. It is to ensure the prevention of the perception that bowing to executive discretion yields, as Stuart Couch puts it: “You cranks all think we are trying to set up a lawless garrison state” (The Mauritanian). Simply put, this is the don’t ask, don’t tell approach. This position has been eloquently summarised by Slavoj Zizek, who commented,
We can well imagine that in a specific situation, confronted with the proverbial ‘prisoner who knows’ and whose words can save thousands, we would resort to torture’, but that ‘it is crucial that we do not elevate this desperate choice into a universal principle: following the unavoidable brutal urgency of the moment, we should simply do it. Only in this way, in the very inability or prohibition to elevate what we had to do into a universal principle, do we retain the sense of guilt, the awareness of the inadmissibility of what we had done.
While this approach is an option for individuals, it does not state and state leaders can adopt it, especially in democratic societies that prioritise transparency and accountability in government. There appears, thus, to be a dual moral standard for judging the actions of individuals and states and a need to pick the lesser evil by state leaders.
D. State’s Unavoidable Faustian Pact
There is, and has to be, a difference in the moral standards used to judge individual’s and the state’s actions. The movie depicts the interrogators’ reluctance to use torture as a means of interrogation, as well as their subsequent acceptance of it in the interest of the state’s security. A particular interrogation scene goes, “You should know that when MI takes over, your sessions won’t be as friendly. What, no tea? No cake? Good luck, Mo. All I can tell you is to be truthful” (The Mauritanian). This is the scene immediately before his torture and ‘advanced interrogation’ by the military intelligence begins. Machiavelli, in his classic work, ‘The Prince’, sets out a dual moral standard applicable to individuals and state functionaries in the discharge of their official duties. It is necessary to clarify the meaning of the expression “state” here. As famously put by Max Weber, “The state is that human community that successfully claims the monopoly of the legitimate use of force”. In our context, this becomes clearer by taking into consideration the principal and cardinal aim of the state: maintaining the security of the state and its citizens. The dual moral standard posits that while one set of morality exists for individuals existing within the state, there exists another set of morality applicable between states, and this morality is dictated by the cardinal aim of maintaining state security. The classic “the ends justify the means approach” provides that if torturing a person known to have information that alleviates a present and imminent threat to the lives of many others, then such an act is not immoral within the set of state morality—a clear reference to the ticking bomb scenario. This view allows for torture to be moral and permissible only when carried out by the state, specifically for reasons of necessity. This sentiment is echoed by Stuart Couch in the movie when he says, “The military is founded on law and order” (The Mauritanian). This follows the well-established ‘lesser evil’ doctrine as propounded by scholars such as Ignatieff and holds that in emergency cases, leaders can act in immoral ways for the greater good. But it also raises questions as to the basis for this dual moral standard and brings to the forefront the great dilemma: how do we decide and balance the rights and interests of an individual against those of a state?
III. Resolving The Torture Dilemma
A. Balancing Rights And Duty: An Imperative
Answering the great dilemma necessitates a calculus that balances the person’s natural rights with the rights of many others. Jeremy Bentham, who propounded the utilitarian principle as “the greatest happiness for the greatest number,” is the most famous figure in the debate on whether torture can ever be justified. In summary, the act-utilitarian case argues that torture becomes acceptable when a cost-benefit analysis indicates that using it is more likely to save more lives than not using it. To satisfy Bentham, a potential torturer must pass two tests. First, it has to be clear that the purpose behind the torture is to acquire information likely to save civilians. Second, the torturer must ensure that the victim possesses the necessary information to save lives. Further, it should be made sure, to the extent possible, that the techniques utilised are not lethal and do not cause any lasting physical damage to the person, for such a result would upset the calculus. As Bellamy eloquently puts it, “In short, for Bentham, the torture of one guilty person to save more than one innocent person satisfies the cost-benefit ratio and is therefore justifiable”. This sentiment is echoed by the saying the military officers use: “Honour bound, defending freedom” (The Mauritanian). It is indicative of their commitment to ideals of honour and rights and the urge to balance them with the interests of security and defence. It demands that torture be only permissible once it is made sure that it is necessary to the extent that the information to be obtained presents a solution to an imminent threat and there is no other reasonable way possible of obtaining this information within the required period. In such situations, it becomes necessary to examine the efficacy of torture as a means of obtaining reliable information and determine the framework within which it could potentially operate.
B. The Efficacy Debate
There has been much debate over the efficacy of torture as a means of interrogation., There is, undoubtedly, ample evidence that torture frequently yields false confessions. However, this concern is less significant when the purpose of the interrogation is to obtain information and not to secure a conviction. In examining the efficacy of torture as a means of getting reliable information, it is necessary to keep in mind that the majority of evidence comes from survivors of torture themselves and is thus inherently biased and unrepresentative. This is because if torture had been successful in achieving the results it intended, the fact of torture would never have come out. This has to be read with the fact that if it were not, on the whole, an effective practice, it would not be a practice resorted to by states in desperate times, time and again—a testament to its efficacy itself. At the same time, it is essential to note that the definition of ‘effective’ is also different when assessing the efficacy of torture and its justification. However, the burden on those who argue that torture is too ineffective to use would be heavy. Simply put and elegantly summarised by Strauss, “Even if, nine times out of ten, a tortured suspect would falsely confess to a crime or lie to stop being tortured, if the one-time truth prevails in the situation where the terrorist has hidden a nuclear bomb in a major city, torture could arguably be seen as effective”. To put it another way, even a 10% chance of success might make torture ‘effective’ if there is no viable alternative. Thus, evaluating the efficacy of torture necessitates information that is not currently available and may be unknowable.
C. Limiting the Scope
It is important to remember that torture is not being argued to be used to obtain evidence to prosecute someone. In such a case, “the reliability of the information would be paramount”. The information gained through torture is being sought to further investigate and try to prevent future terrorist attacks. When torture is used for such informational purposes only, the only drawbacks that arise from gaining false information are the risks of wasted time and resources. The possibility of even a germ of truth coming from the mouth of an otherwise silent conspirator, conceivably, might be worth the risk. There are times when torture has worked in the past and undoubtedly will in the future. But this doesn’t solve the problem central to the practice of torture, even in such cases where it may be the justified and ‘right’ thing to do. The problem with both Bentham’s act-utilitarianism and such a pragmatic approach to torture is the lack of guidelines for making these cost-benefit judgements. Curing this defect necessitates striking a balance between the extremes of the utilitarian perspective and the natural rights of individuals, resulting in a negotiated and centrist approach to the issue. The right to liberty and life of the accused has to be made compatible with the same rights of many others who might face present and imminent danger. This itself requires strict oversight and regulatory measures to prevent the slippery slope argument from coming true. It is to overcome these problems that Dershowitz’s regulatory model comes into play.
D. Judicial Torture Warrants
Alan Dershowitz has put up the most sustained defence of the use of torture and propounded a model based on judicial warrants for torture to increase accountability. He presents his normative aversion to torture and goes on to say that, given empirically the usage of torture, it is better to have such torture regulated by some kind of warrant, with accountability, record-keeping, standards, and limitations. Torture cannot be used to get confessions, and in any case that does not fall within the narrow category of rare and exceptional classification eligible for a ‘judicial torture warrant’. This is echoed in the film when the interrogators tell Slahi – “We won’t hurt you. That shit is not allowed” (The Mauritanian). It is undemocratic and hypocritical to say that such action would be permitted in case of an emergency but not to accept it. He argues that it’s better to legitimate and control a specific practice that is bound to take place than to legitimise a general practice of tolerating and turning a blind eye to extra-legal actions, for they operate under the table of scrutiny and beneath the radar screen of accountability. This position is eloquently put forward by him in a famous quote: “If torture is going to be administered as a last resort in the ticking bomb case, to save enormous lives, it ought to be done openly, with accountability, with approval by the President of the United States or by a Supreme Court Justice” (Dershowitz). This is in line with the spirit and values of democracy that such issues be made public and not left to an unspoken and discretionary realm. He succinctly captures and resonates with this sentiment: “Democracy requires accountability and transparency, especially when extraordinary steps are taken. Most importantly, it requires compliance with the rule of law. And such compliance is impossible when an extraordinary technique, such as torture, operates outside of the law.” (Dershowitz). Further, such procedural requirements are bound to have a negative effect on the frequency and number of cases in which torture is practised, for the simple fact that it would be that much harder to torture someone. Dershowitz eloquently puts this as “I think there would be less torture with a warrant requirement than without one”. This follows the well-established analogy in law of imposing procedural requirements to protect against excessive intrusion into individual rights and can be illustrated with the example of the requirement of search warrants.
IV. The Way Ahead
Excursive exercises of law and justice often blind our perception of what constitutes a just society. Perhaps it is this conscience that drives us to believe ignorance towards difficult topics like torture is the right method to adopt, but is it true? This paper starts with examining our view of torture as unjust, deals with the classical ticking bomb case and explores the normative inconsistencies of the prohibitionist view on torture. Further, it discusses the practical aspects related to the efficacy of torture and presents the regulation and legalising of torture for ‘necessary cases’ as a path forward. Through careful examination, it finds that it is not torture itself but the scope and framework of its application, which is the problem. A discussion of the hypothetical ticking bomb scenario results in an acknowledgement of the viability of torture in such cases. The don’t ask, don’t tell approach is displaced, with a focus placed on the values of accountability, transparency, and citizen engagement, all essential to a democratic society. The analysis of Machiavelli’s dual moral standard and Bentham’s utilitarian case presents us with the moral justification for torture in limited cases, with only one fatal flaw: the balancing of rights required in individual cases. This fatal flaw is remedied by the judicial warrant and regulation model presented by Dershowitz, which presents the grand synthesis of morality with reality in the debate on the justification for torture—a necessary acknowledgement. It is essential that this acknowledgement be made publicly and openly, and that instead of pushing torture into the darkness of discretion and silence, we push it into the light of regulation and discourse, for only then can we fully understand the complexity of torture and metastasize it into a truly just and moral society.
Shaurya Mahajan is a second-year law student at Jindal Global Law School. Main areas of interest are Constitutional Law, Criminal Law, International Law and intersection of society and law.
Comments