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The Use of State-Sponsored Torture for National Security

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The Use of State-Sponsored Torture for National Security Rollins College Rollins Scholarship Online Honors Program Theses Spring 2019 The seU of State-Sponsored Torture for National Security: A Debate on the Permissibility of Torture in the Name of Public Safety Matthew iF sher [email protected] Follow this and additional works at: https://scholarship.rollins.edu/honors Part of the Political Theory Commons Recommended Citation Fisher, Matthew, "The sU e of State-Sponsored Torture for National Security: A Debate on the Permissibility of Torture in the Name of Public Safety" (2019). Honors Program Theses. 85. https://scholarship.rollins.edu/honors/85 This Open Access is brought to you for free and open access by Rollins Scholarship Online. It has been accepted for inclusion in Honors Program Theses by an authorized administrator of Rollins Scholarship Online. For more information, please contact [email protected]. The Use of State-Sponsored Torture for National Security A Debate on the Permissibility of Torture in the Name of Public Safety Matthew Fisher Honors Degree Program Thesis, Rollins College Spring 2019 Department of Political Science Faculty Advisor: Dr. Julia Maskivker Abstract Can the United States government’s use of state-sponsored torture ever be justified for national security purposes? This question is a taboo subject that frequently elicits passionate responses from individuals who argue both for and against its use in upholding national security. This vigorous debate challenges moral, ethical, legal, and even pragmatic ideals in seeking to determine if state use of torture can ever be a part of America’s national security strategy. These considerations, and others, have inspired this research project and the specific research question which seeks to determine whether the United States government’s use of state-sponsored torture for national security purposes can ever be justified. This study intends to analyze existing literature on the relevant arguments, ideologies, and statistics that both proponents and opponents of torture employ to analyze their positions. In doing so, the study achieves the conclusion that state-sponsored torture should be absolutely prohibited under all circumstances for moral, ethical, legal, and pragmatic reasons as it represents a flagrant and systematic degradation of the freedoms and values that this country is based on. ♦ ♦ ♦ Fisher 2 Table of Contents Introduction 3 Defining Torture 4 History of Torture in the United States 7 Public Opinion on Practice of Torture 14 The Nature of the Torture Dilemma 21 Key Arguments in Practice 22 Arguments in Support of State-Sponsored Torture 23 The Ticking Time Bomb Scenario 23 Torture from a Utilitarian Standpoint 29 A Philosophical Argument for Torture: The Role of Government 34 Benefits of Institutionalizing Torture 42 Arguments in Opposition to Torture 46 Moral Argument in Opposition to Torture 47 Deontological Argument in Opposition to Torture 51 Legal Arguments Against Torture 55 Torture is Ineffective as an Information-Seeking Method 68 Analysis of Arguments 74 Conclusion 78 Bibliography 80 ♦ ♦ ♦ Fisher 3 Introduction The use of torture for national security purposes has sparked great debate among philosophers, academics, human rights activists, and members of the legal community. Many have argued that the practice is immoral and should not be considered at all while others have asserted that it can be justified and maybe even required under certain circumstances. This debate has further intensified in the aftermath of 9/11 and other recent terror attacks as the pain and shock experienced by millions of Americans as a result of these tragedies have led to both anger and strong retaliatory reactions. Considering the ferocity of this discussion and the multitude of arguments that have been presented by actors on both sides of the debate, it has become apparent that a full-scale research project that analyzes each of these assertions is necessary in determining whether torture can ever be justifiable. In making this determination, the following research question followed naturally: Is it ever justifiable for the United States government to use state-sponsored torture for national security purposes? In doing justice to this research, it is necessary to approach this question from multiple angles. While this research is primarily focused on the philosophical and moral considerations and implications of torture, it does take an interdisciplinary approach, employing arguments that address legal and pragmatic bases, in order to be properly thorough, holistic, and applicable to real-world situations. Failing to consider arguments from any of these areas would be a disservice to the topic and would not be comprehensive. In seeking to properly answer this research question, this paper is presented in multiple sections. Beyond this introduction is a section presenting a clear definition of torture, followed by a brief historical account of torture in the United States, a discussion of current public opinion on the practice, arguments both for and Fisher 4 against, and finally an analysis and conclusion of all the arguments presented. The goal of this research is not necessarily to persuade of my own opinions, but instead to discuss, examine, and synthesize existing literature and make an educated and well-researched determination whether state-sponsored torture can ever be justified in the United States. ♦ ♦ ♦ Defining Torture While the preceding section of this work has gone to great lengths to briefly explain why the torture question is important, no time has yet been taken to narrow down and determine a clear definition for torture that can be applied throughout this research. As with nearly any controversial topic, much debate, discourse, and controversy exist when seeking to identify a proper definition for torture and how to identify where torture begins and ends and if any distinction exists between it and softer terms or euphemisms such as enhanced interrogation. In a general sense, torture is often understood to be the infliction of pain and suffering on someone in an effort to coerce him or her into doing or saying something that he or she would otherwise refuse to do or say. While this definition may seem quite clear on the surface level, debate begins to develop when one starts to consider the finer details. A critical agreement in international law, Article I of the United Nations Convention Against Torture (UNCAT) describes torture as “any act by which severe pain or suffering… is intentionally inflicted on a person for such purposes as obtaining from him…, information or a confession, punishing him for an act he… has committed or intimidating or coercing him… Fisher 5 when such pain or suffering is inflicted… with the consent or acquiescence of a public official.”1 According to this definition, three conditions must be met for an action to constitute torture: the intentional infliction of severe mental or physical suffering, undertaken by a public official, who is directly or indirectly involved for a specific purpose.2 While torture’s opponents sometimes attempt to argue that the United States government has no (or a weak) legal obligation to follow the direction or doctrines of the United Nations, it is at the very least inarguably bound by the language of Federal law.3 Having said this, the description of torture appears largely the same under U.S. law. Section 18 U.S. Code § 2340 outlines the official definition of torture under Federal law. This law outlines torture as any “act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.”4 The law also includes an explanation of what acts constitute “severe physical or mental pain of suffering” including: the intentional infliction or threatened infliction of severe physical pain or suffering, the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality, the threat of imminent death, or the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the 1 "Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment," OHCHR, Accessed November 15, 2018, https://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx. 2 Ibid. 3 More in depth analysis of legislation and international law regarding torture such as the Geneva Conventions, the United Nations Convention Against Torture, excerpts from the U.S. Code, and Supreme Court rulings are discussed in detail in a dedicated legal analysis section beginning on P.56. 4 "18 U.S. Code § 2340 – Definitions," Legal Information Institute, Accessed January 12, 2019, https://www.law.cornell.edu/uscode/text/18/2340. Fisher 6 administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.5 While these definitions are largely in concurrence, the execution of interrogation methods has historically straddled the gray area in between, where actors argue that certain actions either did or did not represent torture. Even though these arguments exist, it is clear that some actions administered under the direction of the government have crossed into the realm of torture even if recent administrations deny it. For example, waterboarding and sensory deprivation meet the torture qualifications listed above for both the United Nations and the U.S. Code, especially depending on how they are administered. Still, U.S. officials in the past have claimed otherwise publicly, or at the very least, have attempted to present their tactics as less harmful or severe than the reality. For example, former Secretary of State Condoleezza Rice said in 2009 "[w]e never tortured anyone;" she maintained the abuse was "not torture," but was "legal", and "right.”6 When asked whether waterboarding was a demonstration of torture, Rice responded “I just said — the United States was told, we were told, nothing [was done] that violates our obligations under the Convention Against Torture.
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