According to David Luban, “Torture used to be incompatible with American values. Our Bill of Rights forbids cruel and unusual punishment…Americans and our government have historically condemned states that (practice) torture; we have granted asylum or refuge to those who fear it” (Luban, 1425).

But after 9/11, the American public was divided over the issue of the torture of prisoners of war or civilians suspected of being involved in terrorist activities. The torture debate intensified with the emergence of media exposes regarding the inhumane treatment of prisoners in US military jails such as Guantanamo (2002) and Abu Ghraib (2004). Indeed, is torture justifiable if it was committed by the country that prides itself as the world’s bastion of democracy and human rights?

The 1984 United Nations Convention against Torture (UNCAT) provided the following definitions of torture:
“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” (Garcia, 5);
“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” (Garcia, 5);
“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 (Garcia, 5).

Torture reinforces the notion that slaves should be subjugated completely (Luban, 1432). Hence, when a person is tortured, he or she is transformed into a slave – an isolated, overwhelmed, terrorized and humiliated individual, stripped of any semblance of dignity (Luban, 1432). It is from the dynamics of the master-slave relationship that David Luban (2005) based the five aims of torture:
Victor’s Pleasure – In his article Liberalism, Torture and the Ticking Time Bomb (2005), Luban argued that “the predominant setting for torture has always been military victory” (Luban, 1432). Torture, therefore, is the torturer’s way of relieving military victory and establishing his superiority over the faction he defeated (Luban, 1432).
Terror – Dictators such as Adolf Hitler, Augusto Pinochet and Saddam Hussein tortured their political prisoners to warn people that anyone who opposed them will share the same fate. Terror can easily subdue a population than the idea that dissidents will be dealt with humanely upon capture.
Punishment – Until the last two centuries, criminal offences were punishable with torture (Luban, 1433). But as society became increasingly industrialized (and adopted liberal polities in the process), the concept of torture as a form of criminal punishment was discarded. The French historian and philosopher Michel Foucault explained that this was so because torture was “a ritual of royal dominance and royal revenge, acted out in public spectacle to shock and awe the multitude” (Luban, 1434). In a liberal democracy, where there is emphasis on popular sovereignty, it is the people who decide how criminals should be penalized. Hence, the concept of using torture to impress the majority became pointless.
Extracting Confessions – Before the advent of liberalism, “legal rules required either multiple eyewitnesses or confessions for criminal convictions” (Luban, 1435). Torture was necessary to achieve these two (Luban, 1435). But in a liberal society, a guilty verdict can be derived from different kinds of evidence that are proven to be credible, instead of just relying on a confession. Hence, torture was no longer needed to secure a conviction.
Intelligence Gathering – Luban defined this aim as “the only one rationale for torture that might conceivably be acceptable to a liberal” (Luban, 1436). However, this motive is dangerous as it rationalizes an act that is strictly prohibited in every global human rights agreement (Geneva Convention, UNCAT, Rome Statute, etc.).

For Luban, the liberals banned torture because it is the microcosm of a tyranny (Luban, 1430). Torture is an integral component of all the evils of an absolutist rule – military conquest, regal punishment, dictatorial terror, forced confessions and the repression of dissident belief (Luban, 1438). Torture victims are “isolated and reduced instead of engaged and enlarged, terrified instead of active, humiliated instead of dignified,” in sharp contrast to the liberals’ idea of all human beings bearing an innate dignity regardless of race, creed or social status (Luban, 1433). Furthermore, torture is the starkest manifestation of a tyrannical leader – one who takes pleasure in degrading those who oppose his rule (Luban, 1433).

But what if torture was used to supposedly obtain information that will deter future terrorist attacks? Luban argued that this was the premise of the “liberal ideology of torture” (Luban, 1439). The “liberal ideology of torture” asserts that torture was necessary for “intelligence gathering to prevent a catastrophe” (Luban, 1439). Furthermore, torture should not be associated with state tyranny because it was motivated by self-defense and not by cruelty (Luban, 1439).

Torture became part of the “War on Terrorism” because the latter operated on the war model, which argued that fallen or captured combatants can be replaced by other combatants (May, 310). Hence, the fate that the captured terrorist will experience while in incarceration can serve as a warning to those who will take his place (May, 310). However, this conclusion is based on the premise that the captured terrorist has already been proven to be a real terrorist. What if the torture victim was not a terrorist, but someone who was just suspected to be a terrorist? Under the guises of “intelligence gathering” and “preventing terrorism,” the suspected terrorist’s rights to life, counsel and due process were violated.

Torture defeats terrorism at the expense of civil liberties. To make matters worse, the Bush administration wants to make it appear that the United States is exempted from every international law governing human rights. William T. Cavanaugh (2005) elaborates:

Many would appeal to what has been called “American exceptionalism,” the idea that the U.S. is different from other nations and may be held to a higher standard…What we need is a frank recognition that America is not different. Approval of torture at the highest levels of government puts the U.S. in the same category as Chile under Pinochet, France in Algeria, Myanmar, Israel, Saudi Arabia and dozens of other countries today. Amnesty’s annual reports make clear that disregard of human rights in the name of national security is common… (Cavanaugh, n. pag.)

Indeed, Luban was right when he wrote in Liberalism…, “The liberal ideology of torture, which assumes that torture can be neatly confined to exceptional ticking-bomb cases and surgically severed from cruelty and tyranny, represents a dangerous delusion” (Luban, 1461).

References

Allhoff, F. (2005). Philosophy 9/11: Thinking about the War on Terrorism. Illinois: Open Court.

BNET. (2005, January 25). Taking Exception: When Torture Becomes Thinkable. Retrieved

January 27, 2008, from http://findarticles.com/p/articles/mi_m1058/is_2_122/ai_n9505722

Garcia, M.J. (2007). U.N. Convention against Torture (CAT): Overview and Application to

Interrogation Techniques. Washington, D.C.: Congressional Research Service.

Human Rights Watch. (2005, January 7). Abu Ghraib, Darfur: Call for Prosecutions. Retrieved

January 25, 2008, from http://hrw.org/english/docs/2005/01/07/global9968.htm

Human Rights Watch. (2005, January 5). US: Mark Five Years of Guantanamo by Closing It.

Retrieved January 25, 2008, from http://hrw.org/english/docs/2007/01/05/usdom14974.htm

Luban, D. (2005). Liberalism, Torture and the Ticking Time Bomb. Virginia Law Review, 19,

1425-1461.

May, L. (2007). War Crimes and Just War. Cambridge: Cambridge UP.

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