Ethics of Torture PDF

The Ethics of Torture
Oxford Research Encyclopedia of International

Studies
Rebecca Evans
Print Publication Date: Nov 2012 Subject: Ethics Online Publication Date: Jan 2018
DOI: 10.1093/acrefore/9780190846626.013.326
Summary and Keywords
Torture has recently become the focus of renewed scholarly attention, including a philosophical
and political debate about whether torture is ever justified. The basic parameters of the debate
revolve around the question whether there should be an absolute prohibition against torture or
whether it is a lesser evil to torture a suspect for information to prevent a greater evil that
menaces society. Historically, torture was not only common in times of war and social upheaval,
but it was also openly practiced in many societies as an integral part of the judicial system. It
was seen as an effective technique for obtaining “true” information as well as an appropriate
punishment for the immoral and a useful deterrent against future misconduct. Both democratic
and nondemocratic forms of government engage in ill-treatment and torture, but the existence
of liberal democratic institutions reduces the incidence of torture. Since 9/11, there has been
considerable debate over state use of torture, as some scholars have suggested that there is a
profound shift in attitudes toward torture following the 9/11 attacks. Numerous works have
provided detailed analyses and documentary evidence of the Bush administration’s incarceration
and interrogation policies in the war on terror. Critics of torture charge that it is immoral
because it involves the inhumane treatment of human beings. On the other hand, a number of
scholars have argued that individual acts of torture by state officials are warranted in extreme
situations.
Keywords: torture, state use of torture, war on terror, liberal democratic institutions, 9/11, terrorism, war, social
upheavals
Once accepted as a legitimate judicial practice, torture has come to be widely condemned as
unacceptable. The atrocities of World War II led the framers of the 1948 Universal Declaration of
Human Rights to include a prohibition against torture, stipulating in unqualified terms that “no
one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment” (Article 5). Similarly, the Geneva Conventions, which were expanded and revised in
1949, not only provided protection for prisoners of war and civilians but also banned the use of
torture and cruelty against “unlawful” combatants as “outrages against personal
dignity” (Fourth Geneva Convention, Article 3). Since that time, various international
conventions have made the ban on torture an absolute moral imperative, assigning it the status
of a peremptory norm (jus cogens) that is binding on all states, whether they have ratified a
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particular treaty or not. The 1966 International Covenant on Civil and Political Rights prohibited
torture even “during public emergencies that threaten the life of the nation” (Articles 4 and 7).
Similarly, the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment insisted that “no exceptional circumstances whatsoever, whether a
state of war or a threat of war, internal political instability or any other public emergency, may
be invoked as a justification of torture” (Article 2). In 1998 the International Criminal Tribunal
for Yugoslavia ruled in the case of the Prosecutor v. Anto Furundzija that the jus cogens value of
the prohibition against torture meant that national measures authorizing or condoning torture
or absolving perpetrators through amnesty laws are impermissible; furthermore, the court ruled
that every state is entitled to investigate, prosecute, and punish or extradite individuals accused
of torture who are present in a territory under its jurisdiction (de Wet 2004:98). This ruling was
upheld in the landmark Pinochet case, in which the British House of Lords divested former
Chilean dictator Augusto Pinochet of his sovereign immunity and ruled that even heads of state
can be held accountable for violating crimes against humanity, including the prohibition against
torture.
Yet just as considerations of political expediency led the British government to allow General
Pinochet to return to Chile rather than be extradited to Spain to stand trial, governments and
international courts have not consistently upheld the prohibition against torture. In the case of
Sulaiman Al-Adsani, a dual British-Kuwaiti national who sued the Kuwaiti government for
damages resulting from alleged torture, the European Court for Human Rights ruled that the
torture survivor could not sue Kuwait for compensation because foreign states benefit from
immunity as to alleged acts of torture committed in their own territory (Bianchi 2008:501).
Moreover, torture continues to be practiced by many countries throughout the world, including
leading democracies. As of 2011, 147 countries have ratified the Convention Against Torture,
but torture or other ill-treatment was documented in 98 countries (Amnesty International 2011).
Few countries openly acknowledge employing such practices, resorting to a variety of strategies
to circumvent the legal prohibition against torture, including denials that given treatments
constitute torture, plausible deniability, and torture by proxy. For example, though the George W.
Bush administration denied using torture against detainees in the “war on terror” launched after
September 11, 2001, others argue that the US government authorized and systematically
employed techniques that amount to torture. As a result, torture has recently become the focus
of renewed scholarly attention, including a philosophical and political debate whether torture is
ever justified. The basic parameters of the debate revolve around the question 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. This review essay begins with a discussion of the ambiguities inherent in
the modern definition of torture. It goes on to examine the history of torture and then
summarizes recent scholarship on the effectiveness of international agreements banning torture.
Following a discussion of the controversy over interrogation methods in the war on terror, the
essay analyzes the debate over the ethics of torture. The essay concludes with a review of recent
scholarship that questions whether the norm against torture has lost its effectiveness.
The Definition of Torture
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The UN Convention Against Torture defines torture as “any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as
obtaining from him or a third person information or a confession, punishing him for an act he or
a third person has committed or is suspected of having committed, or intimidating or coercing
him or a third person, or for any reason based on discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity. It does not include pain or suffering arising
only from, inherent in, or incidental to lawful sanctions” (Article 1). In other words, according to
international law, torture is the intentional infliction of intense suffering aimed at forcing
someone to reveal information, punishing unwanted behavior or inspiring fear in a broader
population. While this legal definition focuses on the involvement of states and their agents
rather than cruelty committed by private citizens, scholars have noted that illegal organizations,
such as the mafia or guerrilla armies, are also capable of torture (Davis 2005:163).
Like many legal formulas, the definition of torture is sufficiently vague as to permit varied
interpretations. Given the stigma attached to torture, governments have carefully parsed the
language with which they describe interrogation techniques, using euphemisms and narrow
legal interpretations to differentiate between their methods and torture. Governments
acknowledge employing “coercive interrogation” but insist that they do not practice or condone
torture. The definition of torture makes it easier to draw such semantic distinctions since it
stipulates that a particularly high threshold must be met. Interrogation methods must not only
cause pain but “severe” pain; they must not only involve degrading and inhuman treatment, but
an “aggravated” form of such treatment. The prohibition against the intentional infliction of
severe physical or mental suffering therefore opens up a subjective judgment as to whether
particular methods cause sufficiently severe pain as to be considered torture. Certainly, officials
have a vested interest in insisting that instances of painful abuse should not be branded with the
emotionally charged label of “torture.” As a case in point, former US Secretary of Defense
Donald Rumsfeld refused to qualify actions by US soldiers as torture, qualifying the
controversial methods as “abuse, which I believe is technically different from torture” (quoted in
Hochschild 2004).
By drawing such distinctions, officials seek to distance themselves from any association with
torture. In the popular imagination, torture calls to mind images of dungeons furnished with
medieval instruments designed to maim and mutilate. As such, torture tends to be associated
with barbaric methods of inflicting physical pain that are readily condemned by the civilized
world. Yet modern torture, as Darius Rejali chronicles, often takes the form of “clean” torture
techniques that inflict pain without leaving visible marks. Techniques such as electric shock,
choking with water, near asphyxiation, and certain types of beatings are specifically designed
not to “bruise the merchandise,” which makes them easier to deny and allows states to avoid
bad publicity (Rejali 2007:1–5). Interrogation techniques such as “sleep management” (20-hour
interrogations for every 24-hour cycle), “environmental manipulation” (exposure to extreme heat
or cold), “stress and duress” (forcing a prisoner to stand or sit in uncomfortable positions for
long periods of time), and “ego down” (degrading treatment) produce extreme physical suffering
more than intense pain; as such, they are often downplayed as “torture lite” (Jaffer and Singh
2007:8–19; Bowden 2003:53). For example, when asked to approve specific interrogation
techniques for prisoners at Guantánamo, Defense Secretary Rumsfeld authorized forcing

prisoners to stand for long periods of time and even asked why this was limited to eight hours
per day, suggesting that he stood that long if not longer himself. Elaine Scarry points out that
forcing people to stand completely immobile for long periods of time “can produce as violent
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muscle and spine pain as can injury from elaborate equipment and apparatus, though any of us
outside this situation, used to adjusting our body positions every few moments before even mild
discomfort is felt, may not immediately recognize this” (Scarry 1985:47–8).
Thus, according to certain perspectives, interrogation techniques and detention procedures that
aim at “softening up” prisoners through sensory deprivation, sexual humiliation, and exploitation
of phobias, though unpleasant, do not constitute torture. Similarly, psychological manipulations
designed to break a person's resistance by creating fear, terror, or helplessness may not be
counted as torture because they are presumed not to cause prolonged mental harm, such as the
development of post-traumatic stress disorder (Başoǧlu, Livanou, and Crnobarić 2007:277–8).
Such a distinction between physical torture and extreme mental suffering is reflected in the
different legal status of torture, on the one hand, and cruel, inhuman, or degrading treatment,
on the other. The British government, recognizing the significance of this distinction, appealed a
ruling by the European Court and scored a public relations victory by reducing the court's
finding to the judgment that Britain was “only” guilty of cruel and unusual treatment of Irish
political prisoners – not actual torture (Millett 1994:102). The Convention Against Torture also
creates a distinction, requiring signatory states to criminalize official torture, but simply
exhorting them to work to prevent cruel, inhuman, or degrading treatment.
Yet, a recent study of survivors of torture found that psychological manipulation, humiliating
treatment, exposure to adverse environmental conditions, and forced stress positions were no
different from physical torture in terms of the level of traumatic stress and the long-term
psychological after-effects that they cause. Based on their findings, the authors conclude that it
is misleading to distinguish between torture and other cruel, inhuman, or degrading treatment
since both can cause severe mental suffering (Başoǧlu, Livanou, and Crnobarić 2007:283–4).
Along the same lines, David Luban argues that “there is something deeply wrong, not to mention
perverse, about the entire enterprise of trying to draw fine lines between torture and lesser
abuses. An essential continuity exists between them, because all have the degradation of their
victim as their core” (Luban 2009:222). For Luban, the key characteristic of torture lies in the
abject humiliation of the victim, whose sense of complete powerlessness creates such intense
fear that the victim is terrorized and “broken.”
Elaine Scarry shares Luban's view that torture renders the victim completely powerless, but she
focuses on the way that the infliction of excruciating pain does this. According to Scarry, torture
reduces people to prisoners of their bodies, demonstrating and magnifying the power of the
agent (and, by extension, the regime) employing torture (Scarry 1985:27–8). The “annihilating
power of pain” narrows victims’ consciousness, reducing their focus to immediate bodily
sensations. Their bodies become agents of their own agony, as the “grotesque overload” of
physical pain disintegrates their sense of self and eliminates their ability to express and project
themselves through language (Scarry 1985:47–9). The “world-destroying” effect of torture, in
turn, compels prisoners to confess, “to assent to words that through the thick agony of the body
can be only dimly heard” (Scarry 1985:33, 35). The confession, as Scarry explains, is what
provides a justification for brutal treatment, redirecting moral responsibility from the torturer to
the prisoner. Even though the torturer is in complete control, the interrogation process shifts
blame on to the victim, pretending that the prisoner has caused this situation by withholding
information. Yet even a confession does not absolve the prisoner: “despite the fact that in reality
he has been deprived of all control over, and therefore all responsibility for, his world, his words,
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and his body, he is to understand his confession as it will be understood by others, as an act of
self-betrayal” (Scarry 1985:47).
Along similar lines, Jean Améry, a victim of torture during World War II, writes that torture
destroys people's sense of self by breaking down the boundaries of the body. When the victim's
body is attacked – and furthermore, when the victim has neither the ability to defend himself nor
the expectation of help from another person – then he becomes nothing but a body in pain: “only
in torture does the transformation of the person into flesh become complete. Frail in the face of
violence, yelling out in pain, awaiting no help, capable of no resistance, the tortured person is
only a body, and nothing else beside that” (Améry 1980:28). The victim can no longer control his
own body, which becomes the instrument of the torturer. By virtue of his control over the
victim's body, the torturer becomes absolutely sovereign over the prisoner's flesh and spirit.
Victims are completely isolated, hopeless and helpless, with their fundamental trust in the world
shattered. The torturer exercises absolute domination by rendering the victim utterly helpless
and subordinate (Améry 1980:21–40).
Recent philosophical essays argue that it is the asymmetrical relationship between victims and
torturers that makes torture distinctive. Whereas victims of torture are completely vulnerable
and exposed, their torturers are in perfect control. Victims are utterly at the mercy of their
tormentors; the prisoner “cannot effectively evade, retaliate or shield himself against these
assaults. Unlike other kinds of attack, here the victim must simply take it: there is no reply or
counter open to him” (Sussman 2005B:31). Moreover, the victim cannot stop his or her physical
suffering by admitting defeat; although in theory torture will stop once the subject confesses or
provides certain information, “a torturer seldom if ever knows how much useful information the
tortured has or how much the tortured must confess in order to have confessed
‘everything’” (Davis 2005:164). Torture takes full advantage of victims’ helplessness, turning them
into active accomplices in their own debasement. Because of the insistent, primal demand for
relief from intense pain, victims cannot help but search for some way of appeasing or mollifying
their tormentors; the “victim experiences within himself a dialectic where some part of him
serves as the eager agent of his tormentor … the victim finds in his pain, and his own immediate
responses to that pain, a surrogate for the torturer. The victim's own voice, the voice of his body,
has come in part to speak the torturer's mind” (Sussman 2005B:24). In addition to exploiting the
victim's pain, torturers defile, degrade, and overwhelm their victims with shame, similar to
victims of rape; not surprisingly, sexual torture is often used to emphasize the power of the
tormentor and the vulnerability of the victim (Millett 1994:34–5). In Christine Gudorf's (2011)
feminist analysis of torture, rape, especially serial gang rape, should be understood as torture,
as the essence of torture is the use of severe pain to obscure or obliterate the victim's sense of
agency.
Although torture does not always succeed in forcing a prisoner to say or do what the torturer
wants, it aims at destroying a prisoner's will. The deliberate infliction of severe physical pain or
mental suffering is not enough; this must be done against the victim's will. When a person
voluntarily submits to painful procedures (such as self-flagellation or painful medical
procedures), this does not qualify as torture. Moreover, torture differs from coercion insofar as
torture seeks to terrorize victims into submission by overwhelming their capacity to exercise
rational control over their decisions. Finally, torture differs from corporal punishment insofar as
the latter prescribes a specific, predetermined penalty for a particular transgression and does
not seek to break the guilty party's will (Miller 2008; for a contrasting view, see Schabas 1996:4).
As Manfred Nowak, the UN Special Rapporteur on Torture, explains in his study of US and
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international standards of torture, what distinguishes torture is the total subordination of the
victim to the will and power of the torturer, for example through prolonged incommunicado
detention in a secret place, which permits the perpetrator to intentionally inflict pain or
suffering so as to extract a confession, obtain information, or punish or intimidate the victim
(Nowak 2006:832).
History and Contemporary Practice
Although torture has come to be widely rejected, this was not always the case. Historically,
torture was not only common in times of war and social upheaval, but it was also openly
practiced in many societies as an integral part of the judicial system. No euphemisms for torture
were needed in medieval Europe since there was no need to deny the process and torture
enjoyed general cultural consent (Silverman 2001:21). Throughout much of history and much of
the world, torture was seen as an effective technique for obtaining “true” information as well as
an appropriate punishment for the immoral and a useful deterrent against future misconduct.
Ancient Greeks accepted torture for the interrogation of slaves based on the assumption that
slaves could not be trusted to reveal the truth voluntarily. The Romans adopted this practice and
extended it to citizens, including Christians who were “put to the question” to force them to
renounce their faith. With the rise of Christianity, torture fell into relative disuse until the
eleventh century, when European judicial systems resurrected the practice of judicial torture
and the Catholic Church reversed its previous opposition to torture and sanctioned the use of
torture against heretics (Peters 1985:13–14). In China, torture was a legally sanctioned means of
extracting information and confessions from the Han dynasty (206 BCE–220 CE) until just before
the end of the imperial system in 1905. Chinese officials were convinced that “the measured use
of torture could result in more substantive justice – in the sense that the guilty were more likely
to be convicted and the innocent allowed to go free” (Park 2008:37).
Analyzing the accepted use of torture in medieval Europe, Lisa Silverman explains that
Europeans generally believed that the truth could be elicited from the subconscious by applying
physical pain: “It was widely believed that the body had many ways to betray the criminal
involuntarily, speaking the truth in signs for all to see while the will stopped the tongue. Pallor,
for example, was well known to indicate guilty knowledge” (Silverman 2001:61). By inflicting
physical pain, legalized torture was therefore seen to bypass the human will and force truth
from the guilty, while God would reward those proven innocent. Contrary to the modern
assumption that only testimony that is given voluntarily is true, early modern people assumed
that “the accused spoke the truth not freely but under compulsion, and it was precisely this
compulsion … which made evidence acquired under torture so valuable” (66).
The legal acceptability of torture therefore rested on the belief that it was an unpleasant but
necessary means for discovering the truth and thus achieving justice. Criminals would be made
to confess their guilt and pay for their crimes; the innocent would be vindicated. In both cases,
the pain and suffering of those tortured would help achieve a higher goal, whether preserving
civilization, fulfilling a sacred religious mission, or protecting the community. Torture was also
used as an accepted part of ordinary criminal procedure in Europe from the thirteenth to the
late eighteenth centuries, when judges were required to establish certain guilt in order to
convict someone of a serious crime; certainty, in turn, was established through the testimony of
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two eyewitnesses or the accused person's own confession. Because the two-eyewitness standard
was so difficult to achieve, torture became an accepted means of extracting confessions
(Langbein 2004:94–7).
In each case, the practice of torture was subject to strict rules, including the specific
instruments to be used, the way in which they were to be applied, and the types of people who
could be subjected to torture. In each case, initial restrictions were eventually eased. In ancient
Greece and Rome, the rule that only slaves could be tortured was eventually expanded to
include other groups; similarly, initial exemptions for women, children, and privileged classes
were eventually dropped in medieval Europe. As John Conroy explains, “the class of people
whom society accepts as torturable has a tendency to expand” (Conroy 2000:27–8).
Changes in European legal systems led to a general ban on torture in continental Europe over
the course of the eighteenth century. With the advent of less severe punishments for crimes,
standards of proof could be relaxed. Defendants could be sentenced to jail, the workhouse, or
exile rather than death; whereas the high stakes involved in sentencing a prisoner to death
required definitive proof, relatively lighter sentences could be justified on the basis of
circumstantial evidence. Torture-induced confessions were no longer legally justified (Langbein
2004:97–9). The abolition of a legalized system of judicial torture also reflected a shift in thinking
about torture. Previously, torture was justified on religious grounds since it was presumed to
benefit the sufferer by forcing him to admit the truth, even against his will, and thus bringing
him closer to God. The infliction of pain was seen as a positive technique for saving the souls of
fallen Christians, allowing sufferers to atone for their sins and win eternal salvation; hence,
torture in the Inquisition was justified as Rettungsfolter or salvation-oriented torture (Glucklich
2001).
Over the course of the eighteenth century, however, Enlightenment thinkers challenged this
sacramental view of pain, contending that pain had no redeeming value and no connection to
metaphysical truths; these intellectuals replaced the sacramental vision of pain with a medical
approach to pain that emphasized the need to relieve suffering. Rather than embracing physical
pain as a positive technique for overcoming selfishness, they condemned it as a negative
practice that destroyed the self. They denied the value of testimony elicited through torture and
charged that torture was a “tool of despotism” and “a weapon in the arsenal of political
oppression” (Silverman 2001:171). In his 1764 “Essay on Crimes and Punishments,” noted Italian
prison reformer Cesare Beccaria wrote that governments have no right to authorize the
punishment of a citizen so long as there remains any doubt of his guilt; according to Beccaria,
torture was “a sure way to acquit robust scoundrels and to condemn weak but innocent
people” (quoted in Foot 2006:135). The changing cultural landscape meant that, in Europe at
least, torture was transformed from a generally accepted practice to a generally rejected
practice by the end of the eighteenth century. In fact, judicial torture had already become less
common before this time, since judges had previously become skeptical that torture necessarily
produced truthful testimony (Silverman 2001:66–7; Langbein 2004:99).
Michel Foucault analyzes a similar shift in attitudes toward the use of torture as a method of
punishment. Prior to the eighteenth century, torture was not only used to extract confessions but
was also used as a form of extreme punishment intended to demonstrate and strengthen the
sovereign's power: “Its aim is not so much to re-establish a balance as to bring into play, at its
extreme point, the dissymmetry between the subject who has dared to violate the law and the
all-powerful sovereign who displays his strength” (Foucault 1975:48–9). As such, torture was used
to terrorize the rest of the population by demonstrating the fearsome consequences of incurring
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the sovereign's wrath. Yet the sovereign's public use of torture as punishment, for example in
public executions, did not necessarily deter others from misbehaving; it sometimes triggered
sympathy for the convict and prompted riots in support of the prisoner. Public torture therefore
proved counterproductive to the goals of the state, undermining rather than reinforcing the
sovereign's power. As such, it gave way to new disciplinary techniques that rejected brutal
violence as an ineffective method of controlling and manipulating behavior. Although there was
still a fear of violence and brutality, prisoners were found to be much more effectively
disciplined by isolating them and subjecting them to constant surveillance.
Changes in legal theory meant that after the eighteenth century, judicial torture was no longer
condoned in Western Europe. Coerced confessions were considered unreliable and were
inadmissible as evidence. Torture came to be seen as the hallmark of a premodern, uncivilized
culture, and modern, liberal regimes were assumed to have abandoned such a barbaric practice.
According to the author of a 1907 entry on torture in the Encyclopaedia Britannica, “the whole
subject is now only one of historical interest as far as Europe is concerned” (quoted in Twining
and Twining 1973:305). Yet as Darius Rejali has shown, liberal democracies did not actually
eradicate torture; instead, they developed “stealth” or “clean” torture techniques that left no
visible marks and were therefore easier to downplay and deny (Rejali 2007:1–5). Clean torture
first appeared in democratic countries, where governments continued to believe that coercive
interrogation techniques were a useful means of generating valuable intelligence but also
realized that they were being watched and judged by others in how well they respected human
rights. In order to avoid bad publicity and preserve a veneer of legitimacy, they turned to stealth
torture (Rejali 2007:10). Officials from intelligence agencies of democratic countries were also
involved in training their counterparts in developing countries on interrogation methods,
including torture (Blakeley 2006, 2009).
Since torture is forbidden by law, it is commonly associated with nondemocratic regimes that fail
to recognize limits on their power and wantonly subject individuals to brutal, inhumane
treatment. This association was encouraged after World War II when the victorious Allies worked
hard to reinforce the sense that torture was “the method of the enemy,” something invented by
the Gestapo and later used by Stalinists to sow fear in the population and neutralize dissent
(Rejali 2007:538–42). Indeed, many totalitarian and authoritarian regimes have specifically used
torture to terrorize their population, coerce false confessions, deter opponents, and consolidate
power. These regimes employ torture as a mechanism for social control, using it to elicit
information and intimidate their opposition. Christopher Einolf argues that repressive states
came to see every citizen as a potential threat and created extensive networks of spies and
informers, making it more likely that citizens who defied or criticized the government would be
reported and punished (Einolf 2007:116). Nondemocratic regimes’ lack of accountability meant
that they did not face the same pressures to disavow torture as did liberal democracies.
However, with the rise of international campaigns against torture and the conditioning of foreign
aid on adherence to human rights norms, even these states came to appreciate the value of
appearing to conform to international norms prohibiting torture and adopted “clean” torture
techniques in order to avoid bad publicity about their human rights practices (Rejali 2007:23–6).
Democratic countries also developed ways of evading public scrutiny of unsavory practices that
they officially renounced but privately employed, yet their use of torture has been different from
that of nondemocratic countries. Unlike nondemocratic governments, democracies are reluctant
to use torture against their own citizens. While democratic governments have used torture
extensively in the context of foreign wars and in maintaining control of colonial possessions, as
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well as against marginalized groups in their own territory, the torture of criminals and political
opponents has become very rare in liberal democratic states, regardless of their level of
economic development and other variables (Einolf 2007:113). Nonetheless, Einolf cites statistics
that the use of torture increased dramatically during the twentieth century and attributes this in
part to changes in the intensity and nature of military conduct; he points to the rise in counter-
insurgency conflicts and explains that prisoners of war are more likely to be tortured for
information in such conflicts than in conventional wars, where common soldiers possess
relatively little information of value to the other side (Einolf 2007:114).
Thus, despite their general disavowal of torture, democratic regimes have continued to use
torture, as revealed in reports of the French use of torture in Algeria and British practices
against Irish dissidents, as well as the Israeli Supreme Court's condemnation of the methods
used by Israeli security services to interrogate Palestinians suspected of “hostile terrorist
activity” (Millett 1994:74–116). These practices were deliberately hidden from the public since
this allowed democratic citizens to imagine that the methods employed by their government
were both efficient and moral; as Andrew Linklater explains, “concealment protects moral
sensibilities” (quoted in Steele 2010:153). Democratic elites also took advantage of the public's
greater willingness to condone the use of torture against noncitizens or marginal citizens such
as street children, vagrants, or illegal immigrants, who are often seen as “deserving” rough
treatment (Kelly 2009). As Brent Steele explains, if we do not identify – or identify with – the
individuals who are subjected to torture, then we can imagine that they are as bad as possible
and that they deserve the treatment they receive (Steele 2010:153). Einolf agrees, citing evidence
that torture is used “more often against people who are not full members of a society, such as
slaves, foreigners, prisoners of war, and members of racial, ethnic, and religious outsider
groups” or when the state is perceived to be under severe threat (Einolf 2007:102).
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Institutional and Legal Influences on the Practice of Torture
All types of governments respond to violent challenges with repression. Studies have found that
governments are significantly more likely to resort to torture when they face threats to their
continued rule, especially when they are engaged in civil and international wars (see, for
example, Wantchekon and Healy 1999; Einolf 2007). Emilia Powell and Jeffrey Staton cite data that
83 percent of all states that ratified the Convention Against Torture (CAT) engaged in at least
minimal treaty violations, while 42 percent of ratifiers – including 30 percent of democracies
that ratified the CAT – systematically violated the convention (Powell and Staton 2009:149–50). At
the same time, however, not every government responds to terrorist attacks by resorting to
torture; in countries where there have been strong public and cross-party support for limited
counter-terrorism measures as well as effective political and judicial oversight, terrorist attacks
have not caused governments to restrict human rights protections (Piazza and Walsh 2009:128–9).
Domestic institutions therefore influence the likelihood that states will uphold human rights.
Democracies have a better record when it comes to respecting physical integrity rights
(including freedom from torture as well as lack of extrajudicial killings, disappearances, and
political imprisonment), especially where they have effective constitutional guarantees of the
right to fair and public trials (Keith, Tate, and Poe 2009:652; Simmons 2009:273–4). Democracies
are also more likely to ratify international human rights treaties; when they do, they generally
comply with the terms of the treaties. Nondemocratic governments, on the other hand, are more
likely to flout the terms of international human rights treaties, even when they have ratified such
treaties. Thus, two types of governments are likely to adopt a ban on torture: sincere
governments that are genuinely eager to set a pro-rights example and cynical governments that
have little intention of actually improving their human rights practices and strategically ratify
treaties as a form of “social camouflage” to win international approval or avoid criticism
(Simmons 2009:112).
Nondemocratic governments are actually more likely to practice torture if they have signed the
Convention Against Torture (CAT) than if they have not (Hathaway 2002). James Vreeland explains
this initially counterintuitive finding by analyzing the different circumstances facing “open” and
“closed” dictatorships. He found that dictatorships with the trappings of competitive party
politics are both more likely to sign the CAT and also demonstrate higher rates of torture
(2008:69–70). He explains that “closed” dictatorships in which power is concentrated in a single
political party, junta, or leader actually face less opposition since defection is invariably
punished. Such regimes face little pressure to ratify human rights treaties; moreover, since they
rely on fear and intimidation to rule, “even a symbolic gesture against torture could introduce
ambiguity over [their] limitations” (Vreeland 2008:78). Dictatorships that allow some competition,
on the other hand, face much greater prospects of defection and consequently have higher
average rates of torture. At the same time, the greater level of uncertainty that characterizes
multiparty dictatorships means that domestic political actors are in a better position to press
their government to ratify human rights conventions such as the CAT. Vreeland clarifies that
acceding to the CAT does not itself cause an increase in torture and “may even serve to help
reduce torture as governments adopt CAT provisions into domestic law” – which is why the
domestic opposition in multiparty authoritarian regimes push for accession in the first place
(2008:94). Jay Goodliffe and Darren Hawkins also argue that ratification entails a significant
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commitment insofar as it requires ratifying states to verify policy implementation, and

establishes international monitoring and delegates prosecuting authority to other states through
universal jurisdiction (2006:359–60).
Emilie Hafner-Burton, on the other hand, argues that “naming and shaming” by human rights
NGOs, media sources, and international organizations is often followed by even more acts of
torture and disappearances (Hafner-Burton 2008:700–1). This arguably results from the fact that
international pressure compels repressive governments to make a variety of improvements in
political rights, but doing so exacerbates leaders’ insecurity and prompts them to engage in
increased terror to offset these improvements, especially when armed opposition groups or
elections threaten their hold on power (Hafner-Burton 2008:712). While Simmons acknowledges
that international human rights treaties like the CAT cannot force governments to comply, she
insists that these treaties can and do reduce torture in polities that have had some experience
with political accountability and in regimes that are highly volatile (Simmons 2009:273).
All in all, both democratic and nondemocratic forms of government engage in ill-treatment and
torture, but the existence of liberal democratic institutions reduces the incidence of torture.
More particularly, effective judicial institutions seem to protect individuals from torture (Einolf
2007:118; Powell and Staton 2009:162–7). In addition, “both freedom of expression and elections
hasten the transition away from the ill-treatment and torture of detainees” once violent dissent
is stopped (Moore 2010:423). Yet strong domestic legal systems can make states less inclined to
ratify international human rights treaties since this implies significant constraints on their
behavior. As a result, electoral and legal constraints make human rights treaty ratification more
costly for democracies, as demonstrated by widespread criticism of US failure to live up to its
legal obligations in its war on terror.
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;
Hersh 2004; Greenberg and Dratel 2005; Jaffer and Singh 2007; Mayer 2008). Although some have
argued that the physical and sexual abuse of prisoners has been standard practice in US prisons
for quite some time, others suggest that there was a profound shift in attitudes toward torture
following the 9/11 attacks. Justice Richard Goldstone, a former prosecutor of the International
Criminal Tribunal for the former Yugoslavia and Rwanda and retired justice of the South Africa
Constitutional Court, argues that the US government shifted its traditional stance against
torture following the terrorist attacks on September 11, 2001, abandoning its leading role in
outlawing torture (Goldstone 2005:344–5). Similarly, Jane Mayer comments that the United States
followed strict rules governing the humane treatment of military prisoners throughout most of
its history and took the lead role in drafting and ratifying the 1984 Convention Against Torture.
However, “the fear flowing from the attacks on September 11” led the Bush administration “to
institute a policy of deliberate cruelty that would have been unthinkable on September
10” (Mayer 2008:328).
In her study of the US treatment of prisoners of war from independence to the present,
Stephanie Carvin 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
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justified in waging savage wars against native populations, especially when they did not fight in
the “civilized” manner of European nations (Carvin 2010:59–61). Indeed, Carvin 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 (Carvin 2010:80–2). 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 2010:135). 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 2010:140–50).
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.
In October, Deputy Assistant Attorney General John Yoo authored a memorandum indicating that
legal and constitutional rules governing law enforcement (including the Fourth Amendment's
prohibition against unreasonable searches and seizures) did not apply due to the state of armed
conflict; furthermore, Yoo argued that the President had the constitutional authority to use
armed force against terrorists within the United States (“Memorandum Opinion for the Deputy
Counsel to the President,” September 25, 2001; reprinted in Greenberg and Dratel 2005:3–24).
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
and Dratel 2005:38–117, 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:
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 and Dratel 2005:118).
Building on this, the Office of Legal Counsel argued that prisoners deemed enemy combatants –
including US citizens arrested on US soil, as the case of Jose Padilla demonstrated – 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 and Dratel 2005:29–37) 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,
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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 forced nudity, stress positions, isolation, sleep
deprivation, sexual humiliation, and exhaustion from exercise. Despite the fact that SERE
training was not designed as a means of interrogation, similar techniques were employed at
Guantánamo and subsequently in Afghanistan and Iraq (Mayer 2008:157–64). In October 2002,
chief counsel to the CIA's counterterrorism center, Jonathan Fredman, consulted with military
interrogators at Guantánamo, noting that the Justice Department had approved “significantly
harsh” techniques for the CIA, including waterboarding and the manipulation of phobias
(Benjamin 2008). Military interrogators were reluctant to adopt higher standards that would call
the Justice Department's reasoning into question and began to engage in similar practices,
“always shadowed by information and rumors about what the ‘intelligence’ people were
doing” (Zelikow 2012:30).
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. These included an August 2002 memo written by
Deputy Assistant Attorney General John Yoo, which was approved by the Assistant Attorney
General, Jay S. Bybee. This memo, which was dubbed the “torture memo” after it was released
in 2004, promulgated an extremely narrow view of the ban on torture, concluding that abuse did
not rise to the level of torture unless it inflicted pain “equivalent in intensity to the pain
accompanying serious physical injury, such as organ failure, impairment of bodily function, or
even death.” For purely mental pain or suffering to constitute torture, it had to result from
“extreme acts” and “result in significant psychological harm of significant duration, e.g., lasting
for months or even years.” The memo went on to examine a number of techniques such as
sensory deprivation that “may amount to cruel, inhuman or degrading treatment,” but insisted
that these “do not produce the pain or suffering of the necessary intensity to meet the definition
of torture” (“Standards of Conduct for Interrogation under 18 USC §§2340–2340A,” August 1,
2001; reprinted in Greenberg and Dratel 2005:172–217). As such, in the words of Alberto Mora,
General Counsel of the Navy, the memo “explicitly held that the application of cruel, inhuman
and degrading treatment to the Guantánamo detainees was authorized with few
restrictions” (Jaffer and Singh 2007:14–15).
Consistent with this narrow interpretation, detainees were carefully monitored “to ensure that
… their suffering never crossed the talismanic legal threshold to ‘severe’ (in which case it might
count as torture, and the agents who performed it as serious felons)” (Luban 2009:221). 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 and Dratel 2005:237). 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
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and Singh 2007:5). 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 and Dratel 2005:286–359).
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; 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, 2003:13). Furthermore, Yoo argued that no international
treaty can eliminate the government's right to use necessary measures for its self-defense, so
that international law prohibiting torture does not apply to some interrogations: “if interrogation
methods were inconsistent with the United States' obligations under CAT, but were justified by
necessity or self-defense, we would view these actions still as consistent ultimately with
international law” (“Military Interrogation of Alien Unlawful Combatants Held Outside the
United States,” March 14, 2003:58).
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 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” (Mora 2004:4).
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 and Dratel 2005:383–404).
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. The report
also cited evidence that interrogators from military and civilian intelligence organizations
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“actively requested” that military police at Abu Ghraib “set the physical and mental conditions
for favorable interrogation of witnesses.” The Taguba report also revealed that several prisoners
had been detained without registering them with the International Committee of the Red Cross,
despite the fact that such “ghost prisoners” constitute an unambiguous breach of international
law (“Article 15–6 Investigation of the 800th Military Police Brigade,” March 2004; reprinted in
Greenberg and Dratel 2005:405–66; also see Jaffer and Singh 2007:37). A Defense Department
“Information Paper” leaked to the press in early April 2004 lists sixty-two allegations of prisoner
abuse, including fourteen 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. 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 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 (Steele 2010:2–4). 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. 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 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 (Mayer 2008:151). One such critic,
former State Department official Philip Zelikow, 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” (Zelikow 2012:5). Ben Saul 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” (Saul 2008:9).
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,
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inhuman, and degrading treatment in all types of armed conflict (Zelikow 2012:33–4). Although
the administration eventually did accept the “CID” standard of Common Article 3 in the fall of
2005, thanks to media scrutiny of controversial practices including the CIA's use of “black sites”
for interrogation as well as congressional pressure to adopt new standards for the treatment of
detainees, Zelikow notes that lawyers in the Office of Legal Counsel insisted that existing CIA
interrogation practices – including “waterboarding, walling, dousing, stress positions, and
cramped confinement” – did not violate the constitutional ban on cruel and unusual punishment
(Zelikow 2012:34–9). 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.
From Zelikow's point of view, 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 (Zelikow 2012:43–4). Brent Steele
argues that US use of torture is ultimately a symptom of the decline of US influence and the
vulnerability of power, citing US inability to prevent the dissemination of images that challenge
“the beauty of the ‘idea’ that is US power” (Steele 2010:157). In addition, Steele argues that
powerful actors become trapped by the need for action; they “must move, do something,
‘demonstrate’ [their] physique, foil more attacks” even if this becomes counterproductive (Steele
2010:158). Steele adds that powerful actors can also become trapped by their own rhetoric, with
the amorphous threat of global terror defined so broadly that it cannot possibly be contained
(Steele 2010:158).
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Torture Debate
Since 9/11, there has been considerable debate over state use of torture. Critics of torture
charge that it is immoral because it involves the inhumane treatment of human beings, who are
treated as means. 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 2005:165; also see Sussman 2005B:15; for a contrasting
point of view, see Miller 2008). From this point of view, torture is evil because it intentionally
inflicts severe physical suffering.
On the other hand, a number of scholars have argued that individual acts of torture by state
officials are warranted in extreme situations. These authors argue that in some cases torture
constitutes a lesser evil for a greater good; according to this consequentialist analysis, in order
to protect the well-being of large numbers of innocents, it is acceptable to harm individual
terrorist suspects (Wynia 2005:4). Decision-makers 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 still be the right thing to do. To act with dirty hands you
must do something wrong in order to achieve some higher good. Fritz Allhoff, for example,
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
(Allhoff 2003:127–9). Similarly, Gary E. Jones supports the use of torture in order to save many
lives, citing the need to “balance the morality of torturing the terrorist against that of allowing
the murder of many innocent persons” (Jones 1980:13).
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 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” (Saul 2008:8). 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 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” (Danner 2004:39). He
draws parallels between the “practical” logic of soldiers and intelligence officers charged with
gaining intelligence as opposed to the hypocrisy of politicians who ensure they will have
plausible deniability so that if and when controversial methods are exposed, the politicians can
express mock surprise and distance themselves from the unpleasantness.
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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 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 (Dershowitz 2004:259, 266–7). Mirko Bagaric
and Julie Clarke 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” (Bagaric and Clarke 2007:4, 12). 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. Tibor R. Machan offers a similar argument,
insisting that torture is morally justified when the moral right of innocents to live preempts the
moral right of the guilty to be exempt from retaliation.
Mark Bowden agrees that torture is justified if it is used to save lives and that the well-being of
captives is outweighed by the lives that might be saved by forcing them to talk. “A method that
produces life-saving information without doing lasting harm to anyone is not just preferable; it
appears to be morally sound” (Bowden 2003:54). Miller also agrees:
For those who hold that killing is not an absolute moral wrong, it is very difficult to see
how torture could be an absolute moral wrong, given that killing is sometimes morally
worse than torture. In particular, it is difficult to see how torturing (but not killing) the
guilty terrorist and saving the lives of thousands could be morally worse than refraining
from torturing him and allowing him to murder thousands – torturing the terrorist is a
temporary infringement of his autonomy, whereas his detonating of the nuclear device is
a permanent violation of the autonomy of thousands.
(Miller 2008)
Allhoff takes this argument further: “torture can be justified, even if it entails rights violations,
so long as we find ourselves in such a quandary that rights will end up being broken whether
torture occurs or not. In these situations, some rights violation is bound to occur regardless, we
might as well either serve the greater good or aim to minimize the overall violation of
rights” (2003:126–7).
This raises the question whether torture is effective or not. Bowden 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 (Bowden 2003:55).
Experiments with mind-altering drugs have failed to produce a consistently reliable means of
inducing subjects to divulge information that they don't want to. Sensory deprivation and
isolation are generally more reliable, but even then, experimental results varied from person to
person (Bowden 2003:57–8). Some captives will be more inclined to talk if threatened with death;
others will give up and be less inclined to talk (Bowden 2003:60). On the other hand, other studies
doubt whether torture allows interrogators to obtain more and better information than other
methods. Of 625 instances of torture in France between 1500 and 1750, 67–95 percent of
captives never confessed. The German Gestapo couldn't get precise information about the
French resistance movement and only 5 percent of 400 airmen in the Vietnam War issued anti-
US propaganda despite the widespread use of torture by both governments. In an official
statement recommending that the United States should no longer employ “enhanced
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interrogation techniques,” Director of National Intelligence Dennis C. Blair conceded that such
techniques may produce valuable information in some instances, but 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.”
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 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 (Matthews 2006:71–6). Similarly, Henry Shue argues that successful
torturers need training but this entails the institutionalization of torture and creation of a
torture bureaucracy (Shue 2006:236). 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 2006:238). “One can imagine rare torture but one
cannot institutionalize rare torture – as The Torture Papers show” (Shue 2006:238).
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 2005B: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 2007:24). According to
Rejali, “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 2007:455).
Torture has also been criticized for its corrosive effect on 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 2007:456–8). It also has a
negative impact on medical professionals, eroding medical ethical norms (Wynia 2005:6). Another
criticism of torture's harmful effects focuses on its tendency to discourage informants from
coming forward (Rejali 2007:458–60). All in all, critics see torture as a counterproductive strategy
of political control, which leaves a subject population more alienated and radicalized than cowed
(Sussman 2005B:12). Given that torture is not confined to the guilty, it may make innocent victims
into enemies.
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
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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
1978:130). 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 1978:130).
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 1978:130). Nonetheless, Shue rejects this line of argument, responding first of all that
modern torture isn't necessarily aimed at eliciting “ticking bomb” kind of information;
“terroristic” torture is used to intimidate people from opposing a regime, in part by punishing
opponents and in part by demonstrating the penalty to others to deter them from opposing the
regime (Shue 1978:131–2). In this case, victims cannot possibly comply. “Interrogational” torture
is different insofar as it is aimed at extracting information; once this is done, there is no more
need for torture (as opposed to terroristic torture, which has an incentive to torture as long and
as cruelly as possible, even leading to death) (Shue 1978:133). The latter case provides, at least in
theory, stronger grounds, but Shue nonetheless rejects it. He argues that the torturer may have
the wrong suspect and cannot be certain that the victim actually possesses information that
would allow him to surrender. As Shue notes, “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’” (Shue 1978:135). An estimated 70–90
percent of prisoners abused at Abu Ghraib were not terror suspects (Wynia 2005:4). In such
cases, victims of torture obviously have no way of complying and thereby ending their torture
and are liable to make up false information.
Shue considers justifications for interrogational torture, admitting 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” (Shue 1978:141–2).
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date: 06 March 2018
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 2006:144). 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
(Mayer 2008; Steele 2010:154–62). 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 (Sands 2008:73–4; Clucas 2009:178–9; Steele
2010:154). In addition, it has arguably 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” (Clucas
2009:198, 201).
So has the US public become more accepting of the use of torture? Empirical data are
contradictory. Recent public opinion polls conducted by the Pew Research Center suggest that
most US citizens are willing to condone the use of torture as a way of gaining important
information from suspected terrorists, even if only sometimes or rarely. In contrast, Paul Gronke
and Darius Rejali studied US attitudes toward torture between 2001 and 2009 and found that a
majority of people were opposed to the use of torture throughout most of this period (Gronke
and Rejali 2010:437). 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:
137–8). 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 2006:138).
Steven Lukes worries that inhibitions against violating basic rights have been corroded by a fear
of terrorism, undermining the idea of human dignity that he insists should lead democracies to
absolutely ban torture (2007:14–15). Rosemary Foot agrees that 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 number of other governments to emulate its
“unrestrained” precedent (Foot 2006:139–40). At the same time, however, she argues that the
normative prohibition against the use of torture continues to have “residual constraints” on
Page 21 of 28
date: 06 March 2018
behavior; although states may seek to reinterpret the anti-torture norm, they cannot simply cast
it aside (Foot 2006:140, 144).
While human rights nongovernmental organizations and UN bodies seek greater compliance
with the prohibition against torture, scholars generally agree that the most effective constraint
on the use of torture is the existence of effective liberal democratic institutions (Moore 2010:422–
3). Yet 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. While the Obama administration has
repudiated the use of torture and released additional documents detailing the use of so-called
“enhanced interrogation techniques,” it has stopped short of releasing the torture photos and
has decided against investigating the lawfulness of the Bush administration's treatment of
detainees. Although disagreements remain over the precise definition of torture, its justifiability,
and the effectiveness of international treaties prohibiting torture, most scholars agree that “the
impressive worldwide prohibition of torture must be honored rather than co-opted by legal
sleight of hand” since torture cannot be justified on moral grounds and is not necessary for
security (Miller 2005:41).
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Links to Digital Materials

American Civil Liberties Union. At http://www.aclu.org/national-security/torture, accessed
November 2012. The ACLU website includes thousands of searchable documents related to
torture as well as a link to its 2009 “Torture Report,” which compiled government documents,
investigations, press reports, witness statements, and other publications in order to give a full
account of the Bush administration's use of torture. The website also provides information on
individuals in the administration who designed and approved the abuse of prisoners, calling for
them to be held accountable.
American Torture. At http://www.americantorture.com/documents.html, accessed

November 2012. Michael Otterman, the author of American Torture: From the Cold War to Abu
Ghraib and Beyond (2007), created this companion website that includes declassified documents
that chart US involvement in torture from the early Cold War onward, including declassified
documents on coercive interrogation techniques developed by the CIA in the 1950s, training
manuals for Latin American military officers, torture memos of the Bush administration, and
related documents from Guantánamo and Iraq.
Amnesty International. At http://www.amnesty.org/en, accessed November 2012. 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.
Center for Constitutional Rights. At http://ccrjustice.org/international-law-and-

accountability, accessed November 2012. 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.
Human Rights Watch. At http://www.hrw.org/topic/torture, accessed November 2012. 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. At http://www.gwu.edu/~nsarchiv/, accessed November 2012. This

nongovernmental organization, 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.”
World Organization Against Torture (Organisation Mondiale Contre la Torture, OMCT). At http://
www.omct.org/, accessed November 2012. 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
Page 27 of 28
date: 06 March 2018
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.
Rebecca Evans
Department of Politics and International Relations, Ursinus College
Page 28 of 28
date: 06 March 2018

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The Ethics of Torture

Oxford Research Encyclopedia of International

Summary and Keywords

The Definition of Torture

techniques for prisoners at Guantánamo, Defense Secretary Rumsfeld authorized forcing

History and Contemporary Practice

Institutional and Legal Influences on the Practice of Torture

commitment insofar as it requires ratifying states to verify policy implementation, and

Torture in the War on Terror

Amnesty International (2011) State of the World's Human Rights. At http://www.amnesty.org/

Benjamin, M. (2006) Torture Teachers. Slate (June 29), at www.salon.com/news/feature/

Millett, K. (1994) The Politics of Cruelty. New York: Norton.

Moore, W.H. (2010) Incarceration, Interrogation, and Counterterror: Do (Liberal) Democratic

Peters, E. (1985) Torture. Oxford: Blackwell.

Shue, H. (1978) Torture. Philosophy and Public Affairs (7), 124–43.

Links to Digital Materials

American Torture. At http://www.americantorture.com/documents.html, accessed

Amnesty International. At http://www.amnesty.org/en, accessed November 2012. AI has

Center for Constitutional Rights. At http://ccrjustice.org/international-law-and-

Human Rights Watch. At http://www.hrw.org/topic/torture, accessed November 2012. This

National Security Archive. At http://www.gwu.edu/~nsarchiv/, accessed November 2012. This

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