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.
John Quiggin 
The problem with the tgicking bomb scenario is that it requires too many assumptions to be provide a useful boundary. It is generally posed as “Suppose you knew that a bomb had been placed but didn’t know where or the hour of detonation. Then suppose you knew that a particular person would have the information…”
Well there you go. First you already know two key facts and you are merely going to connect the dots — so the cost-benefit analysis of using torture to extract the information appears persuasive.
The only problem is that I do not believe that those two points would in reality be known with such certainty.
So really the way the situation ought to be phrased is “You suspect that a bomb has been placed and you suspect that Mr. X knows…”
I think that if the question is phrased in reality, the answer is not even remotely debatable.
Note that, at least if the report is accurate, there’s a third step endorsed by the authors.
Suppose that you know [in reality, suspect] that Y knows where to find X so that you can torture him to get the information you know [in reality, suspect] he has. Then it’s OK to torture Y to force her to turn X in.
a link to the smh story would be nice.
D’oh! Fixed now.
What could motivate this guy Bargaric to write what he did and then seek this publicity? It sounds suspiciously like a job application to me. I would say that he is hoping to get a much juicier appointment from the Howard government than the refugeee tribunal; something like Solicitor General, or maybe the Federal Court.
And why not? An ostentatious public display of ideological fealty worked for Dyson Heydon. It might work for Bargaric too.
Hmmm, I take it all back. Bagaric has published a paper saying the rich should be taxed more, because money doesn’t make us happy.
Definitely not Howard Government material.
It’s not often you get lawyers writing about tax and torture.
We become what we despise…
Everybody’s noticed
“Suppose that you know [in reality, suspect] that Y knows where to find X so that you can torture him to get the information you know [in reality, suspect] he has. Then it’s OK to torture Y to force her to turn X in.”
And there’s a further weakness. You can’t know that torture is any more likely in practice than skilled non-coercive methods to get the accurate, timely info you want? Particularly as, by assumption, such cases are rare and the torturer will therefore be inexperienced.
But I shouldn’t waste my time arguing with proponents of torture – they’re mostly dreaming of themselves as the torturer, and their sick fantasies should not be encouraged.
I specially liked this bit:
‘Asked if he believed interrogators should be able to legally torture an innocent person to death if they had evidence the person knew about a public threat such as the attacks of September 11, 2001, he replied: “Yes, you could.”‘
A Swiftian may ask if it is absurd to restrict the beneficial effects of torture to merely preventing the demolition of tall buildings. Think of that enormous volume of information that is stored up in idle minds both guilty and innocent.
One excellent method of value-adding mental activity is to permit torture for all vexing issues such as: “Where did I leave my car keys?” And in maximising performance in competititive entrance exams to our more exclusive schools and colleges.
The occupational classification “Torturer” has such negative connotations. Surely it wouldn’t constitute a torturing of the English language to rebrand these useful members of society as “Cognitive maximisation facillitators”.
By the way, the link to my post is borked for some reason. Try
http://benambra.org/benambra/?q=node/302
Torturing rarely produces any more results that normal questioning. Its real purpose is to terrorise the population with the threat of torture.
Most reports from Gitmo suggest that they obtained no better data than the FBI did with normal investigations. Interviews like Andrew Denton does usually yield a wealth of material because the interviewee can see that he/she might survive the interrogation. If a torturer causes injuries that the subject would class as life threatening then usually the subject will tell anything to save his/her life. After the life saving line then it is all over red rover.
If you had a ticking time bomb then the best way to get the info is competant investigation, paid informers and gentle interviews. Mind you the very very best way to avoid a ticking time bomb is to remove the reason that the time bomb was planted.
[…] th discussion of a paper by two Australian legal academics which seeks to justify torture. John Quiggin, Tim Dunlop, Ken Parish and Robert Merkel have all ref […]
Torture and police state methods work alright to reduce terrorism. The case of Nazi Germany and Soviet Russia prove that administrative violence is an effective economic alternative to counter-insurgency and normal police methods.
The problem with torture is not so much what it may do to the target tortured suspect, although this is bad enough to constrain it in all but the most dire in extremis cases. Pr Q’s solution to this conflict between act and rule utilitiarianism is admirable.
The problem with the adminstrative lawful use of torture is the damage it does to the source torturing agency.
Once a regime relies on police state methods as a routine resort for outlaws, and these are found to work, it will begin to rely on them as a first resort for lawabiding citizens. And that is a track we dont want to take one step down along.
PS I still think that terrorists fall into a third juridical category between criminals and POWs, and do not deserve the full rights accorded to such persons. Terrorist-types planning city-scale massacres, should not get the same treatment as delinquent parking offenders.
I would argue that the correctional regime for institutions such as Guantanomo Bay should be modelled on penal stockades used by military criminals during war-time or special forces training camps. That is, the inmates (terrorists susps and perps) should be subjected to a harsh disciplinary regime, drill seargeant style, designed to break their will, get them to comply with lawful military authority and provide useful information. This is good enough, under war-time conditions, for our soldiers so it is good enough for theirs.
But no physical violence against their person, or plausible threats of such, should be countenanced by the authorities.
One practical consideration that often escapes due attention of practitioners of disciplines that emphasise the synchronic and discount the diachronic: it is the very practical issue of time.
“Ticking bomb” hypotheticals have such urgency because, well, the bombs are ticking.
There is therefore a deadline to be beaten. The terrorist or sympathiser careless enough to fall into the hands of the authorities presumably has some knowledge of that deadline.
One way to stop torture is to say something. It inevitably takes time to determine whether that something is a pack of lies.
Often it will be too late to resume torturing, because the bomb will have stopped ticking.
But imagine that the bomb is still ticking. The potentiality for plausible lies is almost boundless.
Therefore, the question must arise for the authorities: “When, and under what circumstances, does one stop torturing?”
And think of this: let us say that the caprtured terrorist keeps telling plausible lies until the bomb explodes. At that point does it become unacceptable to persist with torture?
Bagaric’s argument says it does. That seems to be a very perverse outcome, given the legitimacy of torture.
There is one situation in which torture IS justified!
The proponents of torture would obviously not protest if they themselves were tortured. In fact, we should start now in case they are terrorists and know where bombs are planted. No knowledge about any bombs? Better to torture them to death anyway just in case they are lying.
As a confirmed RWDB and ex-soldier I can’t support the use of torture. Three major reasons – 1. Can’t trust the accuracy of the information. I personally, having considered what would happen if taken captive, would tell the buggers anything they wanted to hear if tortured and would probably sign anything they wanted me to sign. Always thought I would attempt to resist, but for how long and to what level of pain I did not know. – 2. I always hoped that if we (Aussies) had a reputation for treating our captives according to the law of war, hopefully the enemy might, too. -3. One thing I learnt in the military is if you set very high standards, in all areas, under normal conditions, then when standards started to drop under pressure (tiredness, operations, lack of resources, etc. etc.) then any fall in standards meant your performance had a long way to fall to being really crap. What this means in terms of torture is that western society, based on the rule of law etc. etc., should strive to maintain high standards and this includes not torturing.
Noting all of the above, the question then becomes ‘what is torture?’ – I don’t consider sleep deprivation torture, some do. I have no problem with applying mental pressure, it is the physical stuff I can’t agree with.
Note that I do not believe any of the combatants captured in Afghanistan, and those not in Iraqi army uniform in Iraq, are covered by the Geneva Conventions. I don’t think they should be tortured. They should be aggressively interorgated. I have no problem with their continued detention while hostilities in those theatres continue.
For those who give a stuff, I do think that members of the armed forces should be subjected to rigorous escape and evasion traning and be subjected to mild torture as part of this. This is because almost all of our enemies in history have not complied with the Geneva Conventions and it improves our personels’ self-confidence to come through challenging ordeals. (There may be some casualties – but maybe those individuals needed to be identified before the stress of real combat.)
“Let’s say that straight after the first plane hit in New York you had a person in custody who admitted they had overheard the [September 11] organisers’ plans and knew there were going to be further attacks, but then refused to say any more.”
i see we’re playing “let’s say”.
there’s a preceeding step, which comes before the above. let’s say your hypothetical person in custody was sufficiently well-informed to know, despite being in custody, that the attacks had begun. and let’s say he just thought to freely mention that he had more information about the attacks, despite the fact that saying this would tend to incriminate him.
and let’s say that your hypothetical interrogator is able to obtain useful information from him about the second, third and/or forth planes. let’s say he would not have been able to obtain this information, except by torture. let’s say the information does not contain any intentional or inadvertant errors.
also, let’s say that said interrogator has superiors he can immediately report his information to. i.e., let’s say his superior is not busy doing breakfast with a senator [george tenet], or tied up in a meeting with a different senator [acting chairman of the joint chiefs of staff richard meyers], or at a meeting in peru [colin powell], or very busy in florida with my pet goat.
further, let’s say said superiors have the necessary authority to order fighter jets into the air. let’s say this order can be effected in 15 minutes, and let’s say said planes can be in a position to shoot down the second, third or forth planes in a further 10 minutes.
the first plane crashes at 8:46am. it is not possible for all of the above to happen before 9:03 [when the second plane hits]. even at 9:23 [by which time the forth plane has been hijacked] or 9:38 [when the third plane hits pentagon], i would think it extremely unlikely [even, let’s say, if the system for responding to terrorist attacks worked exactly as it should]. i think on this “let’s say” scenario, the use of torture would not have saved any lives.
as an added bonus, let’s say there wasn’t a system for responding to terrorist attacks, or, in the alternative, there was one but it fell apart so catastrophically that no one could tell whether or not it existed…
It is not so much about the torture but what legalised and institutionalised torture means. One of the basic premises of cultured, progressive, and peaceful societies, as we would judge ourselves to be, is the simple statement that the end does not justify the means. The slope downward that any society puts itself on by embracing torture where the end (information) justifies the means (deliberately hurting a human being) is a road to militaristic barbarism where any action, however reprehensible, is justified soley on its results.
Torture is a terror weapon used by repressive governments to terrorise its subjects, no more, no less. America and others, by torturing people are not after information, they are after a deterrent. They think that by torturing people they are sending a message to the insurgents that if you plant bombs and are caught you will be violently tortured possibly to death.
If a society has got so far out of kilter that it thinks that torturing people will help it then it is lost.
If a planted bomb depends on one person then it is our failing. We need to stop repressing people so that they do not feel the need to resort to assymmetric warfare techniques.
Jeff Sparrow has written an interesting response to the article:
http://theage.com.au/news/Opinion/A-deeply-flawed-case-for-power-abuse/2005/05/16/1116095904953.html
Its also worth checking out his blog:
http://www.sleepybrain.net/2005/05/this-torture-stuff.html
Ender you need your head examined. Although, to be fair, you are expressing a view held by many when you state that ‘We need to stop repressing people so that they do not feel the need to resort to assymmetric warfare techniques.’ Don’t you get it yet Osama and his crowd don’t primarily hate the Bush’s and Howard’s of this world, what they really hate are the more progressive aspects of western culture (freedom to criticise religion, equality for women, etc etc). That is why they bombed the twin towers, etc.
Well, buggar me (but not in Saudi Arabia). I agree with Michael Burgess.
Further update:
Dave Ricardo – you need a nice lie down, I’d say.
“Osama and his crowd don’t primarily hate the Bush’s and Howard’s of this world, what they really hate are the more progressive aspects of western culture (freedom to criticise religion, equality for women, etc etc). That is why they bombed the twin towers, etc.”
Say what?
At the risk of breaking the advice “Don’t mention the jihad”, if OBL and his merry men hated all that good stuff, why didn’t he bomb Hollywood, or the tomb of Voltaire, or the National Organization of Women rather than a rather bland example of late modernist architecture or the military headquarters of the one remaining superpower?
Sometimes there is no accounting for the actions of madmen, but seeing as MB feels confident in his ascription of motive, perhaps I can be just a little bold. It seems to me that OBL’s message was against financial and military power rather than enlightenment principles or female liberation.
John
We don’t need to speculate whether the opinions of these people are accurately represented in the article you’ve linked to, since there’s an op-ed piece by them in the same edition (i.e. today’s) of the Herald, as you may have discovered by now. There’s a link to the latter in the article you’ve linked to, and Ken Parish has a link to it as well, and can anyone tell me how I could have said the preceding without repeating the word link so many times?
>
Actually the Soviet Union relied mostly on a massive system of state surveilliance and repressive controls (on where people could live; what they could read; where they could work) rather than torture.
That’s post-Stalin. Except where confessions were required for show trials Stalin seems to have preferred executions (or forced labor to death under conditions that could be argued to constitute a form of torture) to torture.
One of Stalin’s secret police chiefs was a big fan of torture but more as a result of his sexual sadism than as part of any coherent policy.
Whenever this topic comes up I feel obliged to point out that Israel which does literally face the “ticking bomb” dilemma on occasion and isn;t shy about using airstrikes to kill suspected terrorists in such situations doesn’t use torture because they believe it to be ineffective.
They did use torture in the past and stopped because of domestic and international pressure. Shin Bet’s chief interrogator was interviewed in New Scientist a few motnhs back and insisted that torture is simply unnecessary.
You can get the same results as quickly and with fewer lies through “moderate physical pressure” (which includes stuff like sleep deprivation and stress positions) and psychological techniques.
Another torturous debate that needed to happen!
Wonder how tabloids will run with this, when Kylie has possible breast cancer. Hope they go for the latter.
Bagaric is off the Refugee Tribunal Board – the announcement says it had been made as an administrative decision months ago.
BTW – I heard Downer on the radio tonight doing the usual schtick about the Alvarez/Solon case, saying that he was reserving judgement blah blah but that the people responsible would be identified and then “they can be pilloried”.
I swear I heard the word pilloried. Strange kind of consent.
“they can be pilloried�
In view of the topic of this thread, can we assume this was meant literally?
[…] r « Another step Torture Recommended John Quiggin raises the issue of a SMH report that reports two Aus […]
Razor nailed it.
Information gained from physical torture is unreliable.
Why do it if it produces unreliable info, is morally repellant to most Diggers, and is likely to earn the practitioner time in the slammer?
[…] en much ado in the blogosphere of everyone shouting down this torture article. It has been universally refuted by the entire spectrum of the Australian Blogosph […]
what wbb said
Information gained by torture is quite often unreliable. But the dirty little secret of torture is that it works to deter resistance to tyranny. That is how Nazi Germany and Soviet Russia were able to hold down captive populations for so long. As Klein says:
Jack, you forgot to add “in the short term”.
Humans, I once thought, had the capacity to learn.
[…] horrendous, unthinking, and irresponsible.” Update: Some other comments here, here, here , here and here. […]
[…] papers simply to attract media attention. Yes, I’m talking about the unpublished but much-discussed paper by Deakin law school’s Mirko Bagaric and […]
Interesting aside in this deabte, was that it was reported in yesterdays TV news coverage that the Professor had received ‘death threats’ and implied that they were from students. Free speech is dead!
There’s no mention of death threats in any of today’s newspapers. What TV news was this?
The other point to remember about torture is that, in the First World Modern Era at least, it emerges as a tool of state policy to deal with invariable ethnic and sectarian conflict arising out of improper imperialism and immigration eg FRA in Algeria, UK in Ireland, US in Iraq, CIS in Chechyna. The take home lesson from this is to avoid culturally indiscriminate Invade-the-World/Invite-the-World political policies. We should not, without UN approval, go to alien lands to mind the native’s business and we should take care that aliens who come to our land observe our native laws and customs.
Sovereignty is to nationals as property is to familials – something to violate at our mortal and moral peril.
ABC news last night – 7 pm edition – Melbourne
No mention of death threats on the ABC news web site.
Michael.Burgess “Ender you need your head examined. Although, to be fair, you are expressing a view held by many when you state that ‘We need to stop repressing people so that they do not feel the need to resort to assymmetric warfare techniques.’ ”
This is not my view only. The only way to successfully defeat terrorists is with Hearts and Minds campaigns. The US is really really bad at this and the British and until lately Australians are really good at it. The British army has a long and successful record of good police work defeating terrorists by sapping their popular support by winning over the local populations. The US has a sad history of ignoring cultures, running roughshod over cultural differences, being trigger happy and generally pissing people off that they need to get onside. In short they really have no idea. Then they get suprised that people do not like them.
“Don’t you get it yet Osama and his crowd don’t primarily hate the Bush’s and Howard’s of this world, what they really hate are the more progressive aspects of western culture (freedom to criticise religion, equality for women, etc etc). That is why they bombed the twin towers, etc.”
Osama and his crowd are like terrorists that have existed for years. Remember the IRA? The Baader Meinhoff gang or indeed the PLO. If Bin-Laden goes the way of the leader of the PLO he could wind up president. There is no excuse for killing humans and 2 wrongs do not make a right. Torturing people because they killed some of our people is just plain wrong.
Also you are commiting the same error as the US. We need to leave people to live how they choose not impose our ideas on them. To some Muslims our society is a sick, godless one. You are imposing your views, from our culture, and saying muslim countries with Sharia law are repressive and they would be better off with our democracy. You are committing the same arrogance of the US which leads them into so many problems. You are unconscously saying we are superior and ‘you natives’ would be better of with our way of doing things. Then you act suprised that the natives get upset when you are only trying to make them see the advantages of superior cultures.
The attacks on the trade centres are are end results of the this cultural insensitivity and paternalistic attitude.
If it is true that the nation in the world with the least cross cultural skills is the USA it is amazing considering that it has to be the most culturally diverse nation in the world currently.
This will get me tortured
The evil T word “torture” has been uttered again, and predictably the entire blogosphere has gone nuts. I know, I know, it’s not very fashionable to support something so unpopular, but I’m going to do it anyway. Well, not so much as support, but no…
Tortuous Reasoning II
The debate on the Bagaric/Clarke pro-legalisation of torture article continues today – Monash legal academics Sarah Joseph and Marius Smith respond in The Age, and in the blogosphere Rob Corr, Currency Lad, David Starkoff and Cristy all enter the lists…
Ender says “The British army has a long and successful record of good police work defeating terrorists by sapping their popular support by winning over the local populations….Remember the IRA?”
Yes, the IRA are still about, and my relatives in Northern Ireland could tell you a lot about how the British Army “won over the local populations”. It has already been mentioned that recent examples of state torture include UK in N.Ireland. Who do you think they were torturing? The same locals they were “winning over”!
Yes the IRA is still about. No one is perfect and there will always be exceptions however, the British Army has the best record. I was on a course with a guy that was a Para there – I do know a little about it.
In this case however the cultural differences are less as they are both white christian people that worship the same prophet of the same god in slightly different way. There is less difference here than between muslim and christian. The torture you mentioned is a perfect example of how it is used to intimidate local populations and how ineffective it really is. It is a sign of how desperate the Brits must have been after umpteen years of war.
“You are imposing your views, from our culture, and saying muslim countries with Sharia law are repressive and they would be better off with our democracy.”
Ender obviously isn’t a fan of the liberation of females.
Who needs enemies when you’ve got friends like this helping improve the third world.
Hey Razor – don’t start characterising me as this. I fully and totally support liberalising women (not females). The way to do this however is working with a culture not at the point of a gun. Torture does not help the plight of repressed women. The real and lasting gains have been made usually by courageous women from within the culture not imposed from outside.
The point is that a paternalistic superior attitude will always get resistance. Also as a male I do not think that it is appropriate for me to bung on about womens rights.