Ray Fulcher
Most of people recoil at the use of torture, Most people would say that the perpetrators and their governments were guilty of crimes against humanity and should be severely punished. Not so according to two Australian academics who argue that these same states should be provided a legal framework and moral licence to torture foreign captives and their own citizens. To do otherwise would be "morally unsound" argue Mirko Bagaric, head of Deakin Law School in Geelong, and Julie Clarke of the same faculty.
In an as yet unpublished academic paper "Not enough (official) torture in the world? The circumstances in which torture is morally justifiable", Bagaric and Clarke propose their "moral" argument and legal mechanism for torture. They set their argument in the context and with the justification of the "war on terror".
They begin by acknowledging that torture is prohibited in international law. Despite this, torture continues to be used by many governments. The authors point out that 132 countries, including Western powers like the US, Germany, France and Italy, use torture.
On the basis of this data they argue that the "'absolute' ban ... has driven torture 'beneath the radar screen of accountability'" and that legalising torture in "rare circumstances" would reduce instances of torture by subjecting it to an increased level of accountability. Perhaps, they say, there could be a "torture warrant" — presumably issued by a judge and executed by police.
The paradox of their argument seems lost on the authors. On the one hand, they point out that states abuse, breach and are unaccountable to the current legal framework of a prohibition on torture. Then they argue for a new legal framework that encourages torture and they presume that these same states won't abuse or breach the new parameters.
Bagaric and Clarke put forward two arguments for enshrining in law the state's right to torture its citizens. First, they argue a "moral" position based on the crudest utilitarian reasoning — the greatest good for the greatest number. Torture, they say, "is clearly justifiable where the harm caused to the agent will be offset by the increased happiness caused to other people".
But who is to be the arbiter of "the greatest good" in the authors' view — those very states that illegally tortured prisoners and fabricated the lie of "weapons of mass destruction" in order to invade Iraq to steal that nation's oil wealth. For these capitalist powers "the greatest good for the greatest number" is really "the greatest good for those with the greatest wealth".
But the authors' discourse does not take account of terrors perpetrated by the imperialist powers on the Third World. Bagaric and Clarke's "moral" position amounts to little more than suggesting another tool of repression to be used against those challenging imperialist domination of the globe.
The authors' second argument is the assertion that torture's "main benefit ... is that it is an excellent information gathering device". They back this up with a single example from Germany. There, according to the authors, police threatened one of the kidnappers of a young boy with torture and he told them where to find the boy's corpse! Hardly "excellent information".
Their claim about the efficacy of torture flies in the face of centuries of contrary evidence. For example, the Gestapo's use of torture against French resistance activists during World War II and the French colonialists' use of torture against the Algerian resistance in the 1950s both proved largely ineffective. In his 1999 Human Right Watch study — "Confessions at any costs" — Diederik Lohman found that the torture of suspected criminals typically yields information that is not accurate.
Then there is the example of Ibn al Shaykh al Libi, a Libyan national associated with Osama bin Laden. Under torture, he told his CIA interrogators that Iraq had provided chemical and biological weapons training to al Qaeda. After Iraq was conquered and it became obvious no such links had existed, Libi admitted he had lied to his interrogators to stop the torture.
Erik Saar, a US translator at Guantanamo Bay and now whistleblower on the torture of detainees there, has said that little worthwhile intelligence information has emanated from this prison for the "worst of the worst".
More than two centuries ago, in November 1798, the French revolutionary general Napoleon Bonaparte, stated: "The barbarous custom of having men beaten who are suspected of having important secrets to reveal must be abolished. It has always been recognised that this way of interrogating men, by putting them to torture, produces nothing worthwhile. The poor wretches say anything that comes into their mind and what they think the interrogator wishes to know." So who is it that Bagaric and Clarke think should be subjected to their "excellent information gathering device" of "beating, electric shock, rape ... and mock execution"? According to the authors, the "torturee" can be determined by the application of a neat little formula. It measures up factors such as whether the person is a "terrorist", whether it is probable they have information and how many lives will be lost if that information is not extracted. It then divides that figure by the time available before disaster, multiplied by whether the information can be obtained elsewhere.
This last point raises an important question not touched on by the authors — how does a torturer know when to stop torturing the torturee? According to Reed College professor Darius Rejali, author of Torture and Democracy: "In intelligence work, one must gather information about things that one does not know ... The notion that one will stop [torture] when one hears the right information presupposes that one has gathered circumstantial information that allows one to know the truth when one hears it." In other words, a torturer must already know enough to know when the victim is telling the truth. So what's the point of torturing them?
This does not bother Bagaric and Clarke. They insist that using their mathematical formula, torture should be applied once a threshold level is reached. The higher the number provided by the formula over the threshold the more severe the torture can be — even if it results in the death of the "torturee". Or, in the authors' sanitised version of torture, "his annihilation".
The authors argue that torture "should normally be confined to people that are responsible in some way for the threatened harm" (a suitably vague phrase that will fit in well with current anti-terrorism legislation). However, they don't believe that the innocent should be spared. Those who may simply be "aware of the threatened harm" may also be tortured. This fits in neatly with ASIO's powers to abduct people and hold them incommunicado for seven days for interrogation on the basis that ASIO suspects they may have information on terrorist activities. We should remember that PM John Howard wanted to invest ASIO with the power to abduct people as young as 14.
Bagaric and Clarke put no lower age limit on who can be a "torturee". But don't expect to escape Bagaric and Clarke's torture net just because you're not a terrorist or didn't overhear terrorist plans in a coffee shop — they might want to eliminate you as a suspect. According to our two moral crusaders, there is "very little point in torturing people who cannot assist with the relevant inquiries (other than perhaps limiting the range of suspects)". Paris Aristotle, director of the Victorian Foundation for Survivors of Torture, told the May 17 Melbourne Age, this is "the most extreme" and "shallowest" argument for torture he has ever seen. However, it should be taken seriously. Bagaric and Clarke are seeking to legitimise what the US and Australian government secretly practices. They are attempting to give academic legitimacy and "moral" cover to the practices of a new imperial barbarism. [Ray Fulcher is a member of Socialist Alliance and an activist in the Justice for Jack Campaign, which is seeking to prevent evidence against Jack Thomas obtained under torture in Pakistan from being admitted in an Australian court. He is also a graduate of Melbourne University law school.]
From Green Left Weekly, May 25, 2005.
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