Australians for torture ?

According to this SMH report, two Australian academics are advocating the legalisation of torture, including the torture of innocent people who [their interrogators believe] might have useful information. If the SMH report is to be believed, the supporting ‘argument’ is just our old (and multiply-refuted) friend, the ‘ticking-bomb’ scenario. (Here’s my response, and here’s a fairly typical instance of the way the ticking-bomb scenario is used in practice to justify routine and prolonged torture[1].

I find it difficult to believe that this report can be accurate and I certainly hope it isn’t. The views of Bagaric and Clarke are spelt out in this opinion piece, which is as lame and morally obtuse as you might expect. A quick Google reveals that Bagaric is a Part-time member, Refugee Review Tribunal and Migration Review Tribunal, which is certainly inappropriate for someone who apparently advocates sticking needles under the fingernails of innocent suspects. At least, that was what this Age report said when I checked it an hour ago, but the relevant passage has now disappeared.

Update More from Ken Parish, Tim Dunlop and Benambra. I haven’t seen any comment yet from pro-war bloggers, but I hope at least some of them will repudiate this terrible proposal.

fn1. This was a case in Israel, but I don’t want to discuss the Israel-Palestine issue here. Any comments on this issue, or on the fact that there are other countries that do far worse, and don’t have courts to appeal to, will be deleted.

64 thoughts on “Australians for torture ?

  1. I have missed something here. Isn’t the argument for state sanctioned torture the same as the argument for state sanctioned killing ie legal war. If there are sometimes situations where it is ethical for the international community to go to war, then surely there must be situations where it is ethical to torture. I agree that rarely will torture be an effective means, but there would surely be some situations where it was an effective means to an end. There must have been situations during WW2 when torture was effective. It is still a wrong thing to do, but like war it could sometimes be the lesser evil as compared to not doing it. I thought that was ethics 101, but I’m obviously missing something.
    And for the record I am opposed to the Iraqi war and capital punishment. And I think the bans on chemical and biological weapons and mines are a good thing.

  2. Jack – all your egs are of the “improper imperialism”. Care to back up your inflammatory claim that state torture has arisen in the West due to immigration?

    Now I understand your steadfast opposition to multi-culturalism, but you are really pushing it this time.

  3. John . . . I posted this on Crooked Timber–just cross-posting here.

    I know nothing of Australian law, but here in America I think one has to challenge not only torture as a method of interrogation, but even the idea of interrogation itself.

    The question I want answered first is: “When does the government have the right to interrogate—i.e., to demand information from any individual?� Certainly, in criminal cases before a court, witnesses can be made to testify under U.S. law. However, the 5th Amendment protects people from incriminating themselves. Given the existence of the 5th Amendment, one could argue that if torture were legal in the U.S. (and I hope it never will be), only innocent people could be tortured, because the guilty would be protected by the 5th! It’s unlikely that anyone who knows the location of a ticking time bomb and doesn’t want to divulge the information willingly would be innocent of all crimes, therefore torture would effectively be prohibited by the 5th amendment in criminal cases.

    Outside of criminal cases, the only other situation in which I could imagine the government having some power to interrogate would be during time of war, when captives might be open to interrogation. The treatment of these captives, though, would normally be guided by the Geneva Conventions.

    The Bush administration has claimed a third category—enemy combatant. I see no Constitutional justification for this third category and there’s certainly no clear “due process� for handling this third category, if it is in some way legal. What’s dangerous about this third category is that the executive can apparently declare anyone an enemy combatant without any due process or judicial oversight, detain that person indefinitely without any charge, and do whatever it wants to that person (including endless interrogation and maybe even torture). I can’t see how this third category with no rights and subject entirely to whims of the executive branch without any check or balance from the judiciary could possibly be acceptable under U.S. law—it seems completely against the spirit of the Constitution—but it seems to be where we are headed.


  4. More from Crooked Timber, cross-posted here

    It seems to me that the Constitution really only allows the federal government to exercise the strong arm of power in two contexts: criminal justice and war. Terrorists (including enemy combatants), therefore, must be covered either by the laws of criminal justice or the rules of war. If they are covered by the criminal justice system, then we all know there are a vast number of checks and balances built into the system to ensure individual rights are protected and the public has oversight of the executive’s action in attempting to deprive the accused of life, liberty, or property (these checks and balances include the double jury system, the Bill of Rights, and the Constitutional division of powers and responsibilities between different branches of government, all three of which are involved in criminal justice in some ways—Congress by passing the laws, the executive by prosecuting the case and punishing those found guilty, and the courts by managing the trial). As I argued above, however, interrogation cannot really be pursued under the criminal justice system, since the 5th Amendment gives the accused the right to remain silent.

    So we are left with the war powers as the only option for dealing with these alleged terrorists. And here we face a number of serious issues:

    Can war really be declared against individuals or groups that aren’t actual states?

    I’m skeptical about this, but I’m willing to accede that it may be necessary in some cases. Note, however, that a Congressional declaration of war against an individual seems very much like a Bill of Attainder, and Bills of Attainder are specifically prohibited under the Constitution. Also, the “Privelege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.� It’s hard to see how terrorists not in active invasion of the country (non-citizens) or in rebellion (citizens) would qualify under the two allowed exceptions to Habeas Corpus.

    If we do decide that the war powers can be exercised against individuals or groups, can the executive exercise these powers without Congress first giving its authority through a declaration of war against the specific group or individual?

    Here I would demand a declaration. Leaving it to the executive seems dangerous to liberty. I want some check and balance on such an extraordinary power.

    Shouldn’t declarations of war always be public?

    Here again I would say yes. If the extraordinary power to deprive people of life, liberty, and property through war is to be granted to the executive, shouldn’t both public consent (through Congress) and public notice be required? A declaration is not a declaration if it is not declared openly.

    Should Congress be able to put time limits on the declaration?

    Leaving the duration of war solely to the executive seems to allow for unlimited war—again a dangerous threat to liberty.

    Are those captured in war criminals?

    It seems to me the answer is clearly no for soldiers fighting for their country. We treat these captives as innocents (essentially this is the spirit behind the Geneva Convention)—people simply acting in defense of their country. If we think they’ve committed crimes, we transfer them to the criminal justice system for prosecution under the appropriate criminal law. Note that the Constitution gives Congress—not the Executive—the power “to make Rules concerning Captures on Land and Water.�

    For people who are acting independently of a state, however, do we treat them as innocents?

    The closest the Constitution gets to this issue (at least as I read it) is in giving Congress the power “to define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.� Pirates seem to be the closest thing to today’s terrorists—stateless individuals exercising warlike powers. I am not an expert here, but I think historically pirates might have been captured by the military, but they were then charged with a criminal offense and given an ordinary trial do determine guilt or innocence. If this is true, then the precedent seems to be that we can capture terrorists using military power, but once we capture them, we need to transfer them to the criminal justice system for any kind of prosecution. I would also expect them to be treated just like ordinary soldiers (with the presumption of innocence) until being transfered to the criminal justice system for prosecution. I don’t see too much room for interrogation (or torture) here.

    So is interrogation (never mind torture) allowed ever?

    Well, it’s up to Congress to define the rules for the treatment of captures on land and sea. So if the law allows it, maybe, though not in criminal contexts (where the 5th Amendment allows it only if the accused provides answers voluntarily). Right now it seems to me like the only rules that apply are the Geneva Conventions (ratified by Congress)—and these don’t seem to allow coercion. So right now neither interrogation nor torture seems to be legal to me. I admit, though, that I am not a lawyer or legal scholor, so I’d be interested in the opinions of anyone more knowledgeable than I in these areas.

  5. Interesting post RSL.

    The point you make here merits further discussion:

    ‘For people who are acting independently of a state, however, do we treat them as innocents?

    ‘The closest the Constitution gets to this issue (at least as I read it) is in giving Congress the power “to define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.â€?’

    I want to consider “Law of Nations”.

    “Law of Nations” is the eighteenth-century nomiclature for “International Law”.

    It appears that the Founding Fathers intended the phrase “and Offenses against the Law of Nations” not as a qualification of “Felonies committed on the High Seas”, but as constitutiing a separate sphere of Congressional competence.

    Thus Congress is accorded the right to pass laws aimed at punishing offenders on the high seas, where no national laws apply, but also pass laws aimed at punishing persons who have breached international law in places where national sovereignty has been asserted and recognised.

    This latter case is more or less an exact description of the folks at present languishing in Gitmo and various other oubliettes scattered around the bleaker parts of the world under the direct control of the Bush Administration in his guise as the Commander-in-Chief of the US Armed Forces.

    And as you suggest, RSL, it appears that the constitutional right of Congress that you allude to simply allows Congress to legislate to have accused malefactors to be tried in US Civil Court.

    Thus, it lies within the competency of the US Congress to legislate to nullify the spurious legal category of “illegal combattant” unconstitutionally invented by the Bush Administration.

  6. The US has in the past undertaken military action against entities which it didn’t recognize as a state – i.e. the confederate Sattes of America and, probably, various Native American that weren’t recognised as nations.

    It suspended habeus corpus during the civil war and interned Japanese-American citizens during World War II without due process in civil courts.

    This isn’t intended to bash the US – jsut to point out that there are precedents for military action against entities not recognised as states and has interned civilians withotu resort to the civil courts.

    Presumably the egla and constitutional issues involved were dealt with at the time.

  7. Ian, although the US Congress may have the right to pass laws to curb the power of the US Executive, as you point out, does not imply that Congress has had the will to curb the Executive.

    In fact, as you imply, the historical record suggests the opposite.

    And I wouldn’t hold my breath in expectation that Congress is going to start to exercise its right any time soon.

  8. OK I see what I missed. I knew that the Geneva convention was against torture but I didn’t realise that it was very strongly against torture, and I didn’t realise it was international law not a convention.
    So that means torture illegal. And that’s a good thing. Anything that limits the damage that can be done during war is a good thing.
    So that then brings us back to John Quiggin’s point. There may be situations where it is the most ethical thing to do to break the law against torture. But if the law is broken the consequences should be taken.
    I can imagine quite a few situations where a high value prisoner during WW2 would have had very valuable information which could have been extracted by torture (and usually the most effective torture would be mental ie sleep deprivation etc rather than physical per se). Do we know of situations where the Allies did torture prisoners and actually obtain useful information?

  9. Katz, I’d agree with both of your posts above. I think Ian is right about the precedents, but I’m not confident the Constitutional issues were adequately addressed at the time. During time of conflict, great deference seems to be given to the military and the executive. Presidents also like to interpret the powers of the Commander in Chief very broadly (the Constitution is frustratingly silent). If Congress is controlled by the President’s party, Congress generally won’t challenge him. When Congress is controlled by the President’s opposition, there’s more of an effort to reign him in.

    Don’t have much hope that the current Congress will try to reign in Bush.

  10. Too true RSL,

    But the War Powers Act (1973) does provide a somewhat hopeful precedent for congressional willpower.

    The War Powers Act requires the president to inform Congress within two days of military action. Armed forces must be removed within sixty to ninety days unless Congress approves of the action or declares war.

    At the very least the War Powers Act establishes the constitutionality of curbing the authority of the Commander-in-Chief to act unilaterally.

  11. One point that seems to be missing in all (most?) of this thread is the very basis of our (and most civilisations’) moral/ethical/legal system is the imperative “Do as you will be done by”. Do the people advocating, if not torture, then forceful interrogation ever consider how they would like to be treated should they find themselves in that situation?

  12. Katz

    The War Powers Act was one of the best things Congress has ever passed in my opinion. Something like that is now needed to define (and limit) the Executive’s powers in detaining and interrogating terrorists and to create some kind of due process for these types of detentions.

    Unfortunately, I fear we will need a political climate similar to that in 1973 before any such legislation could get through Congress. In 1973, the prestige of the President and the military were at a near all-time low, thanks to Nixon and Vietnam, and we had Democrats controlling Congress and a Republican President.

    I guess if we want to be optimistic, though, we can say that the one good thing about Iraq’s looking more and more like a disaster of Vietnam-like proportions is that the political climate may resemble that of 1973 sooner than we think!

  13. RSL,

    I’m afraid that Pollyanna might shake her head in sad wonderment at the optimism of foks who foresee a Vietnam-magnitude correction arising from Iraq. There are several reasons for this:

    The Bush Administration has been quite effective at tailoring their policies and their rhetoric to events on the ground in Iraq.

    The media have been well-and-truly neutralised.

    There is a ready-made exit strategy of pointing to the establishment of a democratically elected government as a marker of success.

    There is no draft.

    There is no sizeable pre-existing counter-cultural movement in the US which can be energised by the war.

    The Republicans have constructed for themselves a more-or-less permanent large minority of congressional support by careful grooming of the Christian Right. Therefore, it will be almost impossible for a Republican-unfriendly Bill to pass into law over the veto of a Republican president.

  14. I don’t know what all the fuss is about. The latest entries at Fafblog provide an unanswerable, if not correct, rebuttal to any torture nay-saying. Just see the postings about omelettes/eggs with its “idea of an omelette”, and the one about the calculus of freedom.

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