In the present era of global conflict and terrorism, civil liberties and fundamental rights have been put into jeopardy as nation-states have developed means of jettisoning rule of law by introducing anti-terrorism legislation.
Pretexts such as ‘doctrine of necessity’ or special measures for special times have often been cited to justify any deviation from established legal norms and values.
In the aftermath of the world wars, some were in favour of summary executions and punishments without trial. For instance Stalin’s chief prosecutor, Andrei Vyshinsky once suggested during one of the 1938 trials in Moscow: “we can do it just as well without a trial”. Stalin was also said to have “simplified” the judicial system by expanding the death penalty to cover hundreds of offences, eliminating the right to defence, secret trials and suppressing the right to appeal. But there were also people like Harry Truman, albeit a bleak minority, who insisted on due process of law.
US Supreme Court Justice Robert H Jackson, appointed as chief prosecutor, said that “undiscriminating executions or punishments without definite findings of guilt, fairly arrived at, would…. not sit easily well on the American conscience or be remembered by our children with pride.”
The problem remains the same today: how to deal with the ‘bad guys’. But the solutions we take will have different consequences. The fundamental values and human rights which the US once stood for, the American conscience which Justice Jackson spoke of and the due process which President Harry Truman ardently advocated were all jettisoned post the atrocities of 9/11 in an attempt to make the United States of America safer by launching a manhunt on global terrorists.
All of humanity should have felt ashamed when the photographs of the abuse taking place at the Abu Ghraib prison were shown on CBS’ ’60 Minutes’ and shared widely by media across the world. Numerous reports of torture being committed on Guantanamo detainees have surfaced, the most recent one being the Report by the US Senate Committee on Intelligence released on December 9, 2014 which mentions the use of ‘Enhanced Interrogation Techniques’ by the CIA on ‘war on terror’ detainees.
It is pertinent here to address both the legality and the effectiveness of torture as a means of interrogation. Torture has been outlawed in the constitutions of almost every country in the world. The UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment and Punishment (1984) has 158 state parties, providing an absolute ban on torture; there being ‘no exceptional circumstances whatsoever’ that warrant its use. The 1949 Geneva Conventions also outlaw “mutilation, cruel treatment” and “outrages upon personal dignity”.
However, post-9/11 the ‘ticking time bomb’ hypothesis is oft-cited as an exception, but the question is can a policy be based on a mere hypothetical situation, especially one that puts the very ‘conscience’ of a nation into question? Is there even a single example in contemporary history where a ticking time bomb scenario has actually arisen?
Even if it is accepted that such a situation may arise, torture – once allowed – will be rather impossible to contain; there are always those who will abuse the power vested in them. Another problem is that of the culture of impunity which exists, making sure no one is convicted or punished for torture.
These violations of fundamental rights have blurred the distinction between terrorists and governments that use torture as a strategy to fight terrorism; whatever happened in Abu Ghraib during Saddam Hussain was repeated by the Americans once they had taken over. In order to win a greater war, where psychological warfare is used as a key strategy, one has to have a strong moral standing. The use of torture is not only a moral wrong but also an impediment in winning a greater war against global terrorism.
In terms of effectiveness, there have been instances where even the most hardened terrorists have made confessions under torture. Khalid Sheikh Muhammad for instance could not take water-boarding for more than two and a half minutes and begged to confess. But is such a confession or information extracted by use of torture even reliable in the first place?
The 2014 US Senate Select Committee Report on Intelligence revealed in its findings and conclusions that the CIA had rested on inaccurate claims of effectiveness and essentially impeded oversight by the Congress and the White House. There were many instances of mistaken identities and detention of individuals who did not meet the legal standard for detention. Of the 119 known detainees, at least 26 were wrongfully held and did not meet the detention standard in the September 2001 Memorandum of Notification (MON).
In light of the findings of the US Senate Committee, as well as analysis by policymakers and think tanks worldwide, it can be rightly concluded that torture is not acceptable by any moral calculus whatsoever. Not only is it unlawful but also ineffective. It also helps feed the terrorist agenda which breeds on hatred against the West. In order to win this greater war, countries must stand united and adopt a comprehensive strategy to eradicate terrorism without having to compromise their moral standing.
Lastly, the price of jettisoning rule of law is a fairly high one; short-term successes can inevitably lead to long-term repercussions. It is the right time to decide which model we want to follow in order to fight terrorism – Stalin’s justice or Harry Truman’s ‘rule of law’?
The writer is a barrister from Lincoln’s Inn. She works at the Foundation for Fundamental Rights.