Torture as a lesser evil? Governing security in times of terrorist emergencies

Research output: Chapter in Book/Report/Conference proceedingChapter

Abstract

In order to uphold public safety in times of terrorist emergency, authorities may have to curtail the rights of citizens and aliens. Even liberals are ready to accept emergency suspension of rights on the conditions that it is only used as a last resort, that it will be subject soon after its introduction to a process of adversarial justification, and that it is limited in time. But liberals diverge as to the question of how far these exceptional measures may go. Can they include actions that are incompatible with the respect of human dignity such as torture?

When torture is being used in the "war on terror" to gather information in order to avert imminent threats to the lives of many people (the "ticking time bomb scenario"), it may be accepted by some liberals as a means dictated by necessity. In this light, the torturer is not a sadistic brute, but a loyal citizen who does his duty to protect his fellow citizens against a great danger. This kind of justification of the use of torture is grounded in a consequentialist ethics. If it is possible to demonstrate on empirical grounds that torture can be effective under certain circumstances as a way to avert a catastrophe, then it may become acceptable to consequentialists as a lesser evil.

In this paper the justification of torture as an emergency exception in order to prevent the killing of many people will be put under close scrutiny and will be confronted to the western philosophical doctrine about emergency exceptions in penal law. The difference between justification and excuse is very important in this matter. Even if it can not be absolutely ruled out that (on extremely rare occasions) an emergency exception could be invoked post factum as an excuse or as a mitigating circumstance for the use of torture, this should never be used as an argument for the justification of torture beforehand. The paper discusses the position of the Israeli Supreme Court on torture and the ruling of the European Court of Human Rights in the "Dashner Case" (Gäfgen v. Germany).

The paper argues further that the introduction of a "liberal torture culture" running out of control is facilitated under three conditions: when torture is conceptually construed and "normalized" as a forward-looking instrument of intelligence gathering ("special interrogation techniques") capable of averting a great danger; when the actual job of torturing terrorist suspects is outsourced to private security contractors and agencies that are difficult to hold accountable (such as secret services or foreign governments); and when the chain of command, responsibility and accountability is blurred in such a manner that the torturers can consider themselves as the responsible executioners of a community policy, even if their superiors never gave them explicit and written orders to torture detainees. The torture culture that was deployed in the U.S. war against terrorism can be described as the consequence of a bad type of "nodal governance" (Johnston and Shearing), a type of security governance that lead to a concentration of unaccountable power. Such was the case at Abu Graip for example, where the torturers (the local node) felt themselves empowered to act in a "creative" way as they were taking part in a forward looking common enterprise of risk reduction, a security program in which state and non-state actors worked together in redefining what was acceptable and shirking responsibilities in such a way that what happened had been "nobody's" plan.
Original languageEnglish
Title of host publicationGoverning Security under the Rule of Law
PublisherEleven international Publishing
Pages99-122
Number of pages24
ISBN (Print)978-90-8974-409-8
Publication statusPublished - 2010

Bibliographical note

J. Blad ...

Keywords

  • Torture
  • counterterrorism
  • lesser evil
  • ticking bomb scenario
  • emergency exception

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