Finally, torture is the best means to try to get this information from the suspect (McCoy, 2006). Taken as a whole, these circumstances are so unlikely to occur that, even if the ticking bomb scenario would justify the use of torture, it has not ever occurred and, therefore, cannot be used to justify torture.
In fact, what many people who advocate in favor of torture fail to acknowledge is that while torture may be guaranteed to elicit information from even the most reticent of subjects, there is no reason to believe that torture will elicit truthful information. The theory behind torture is that, with the application of sufficient pain and fear, people will talk, and that does appear to be true in the vast majority of cases. However, it is more important to wonder what they will say than whether they will talk. In the non-terrorist scenario, "About 25% of wrongful convictions overturned by DNA testing have involved a false confession or admission" (Kelley, 2009). These were not people who were tortured, but whom, nonetheless confessed to crimes that they had not committed due to pressure from interrogating officers. This fact certainly supports the notion that people will give false confessions. According to Steven Martin and Richard Cizik, "The record of torture's ineffectiveness is clear: Experienced military and intelligence officials tell us that torture doesn't work and yields false intelligence. There's also no clear evidence that waterboarding led us to bin Laden. The crucial detail that eventually led American agents to the al-Qaeda leader's doorstep -- the name of bin Laden's personal courier -- was not divulged during "enhanced" interrogations, and 9/11 mastermind Khalid Sheikh Mohammed actually lied about the courier's identity to the agents who waterboarded him 183 times" (Martin & Cizik, 2011). Moreover, it is important to consider the very real risk of intentional false information in the torture scenario. What time and expense is wasted tracking down false information that was uncovered as a result of torture, and which cannot be revealed as false without investigating the information? Moreover, if terrorists give false information under torture, does that not actually decrease the chance of detection and prevention of actual threats?
Finally, torture does not appear to be necessary to apprehend terrorists or suspected terrorists. The Obama Administration, while continuing many of the questionable practices that began under the Bush Administration, has rejected torture as a legitimate means of interrogation, instead relying on other methods of information gathering and interrogation. However, this has not led to a disastrous increase in terrorists incidents. On the contrary, the Obama Administration has been responsible for three key anti-terrorist strikes since implementing a no-torture strategy: the drone strike against Yemeni-American cleric Anwar al-Awlaki, the drone strike against American Samir Khan, and the raid that resulted in the death of Osama Bin Laden (Armbruster, 2011).
Moral Restrictions on the Conduct of Counterterrorist Operations
Many people suggest that 9-11 changed the world and, therefore, necessarily changed the conduct that governments can and should use in going after terrorist organizations. However, the idea that 9-11 changed the world reflects a very America-centric view of the world. For example, Israel and Europe had long been subject to terrorist attacks long before 9-11. While those attacks may not have been as large or deadly as the 9-11 attacks, they had already demonstrated the vulnerability of major targets to terrorist activity. Therefore, "the world at large has not really changed; our perceptions of the threats and vulnerabilities, of the security of our societies and states, or the lack thereof, are what have been altered significantly" (Maskaliunaite, 2009). This is an important point, because the fact that the world has not changed means that there should be no corresponding shift in ethical perspectives. What was considered unethical prior to 9-11 should be considered unethical after 9-11, because there has been no fundamental change in conditions, just an increase in the risk that Americans will be subject to the same type of terrorist risk that has long plagued other parts of the world. Prior to 9-11, "there was a national consensus on the illegitimacy of torture" (Kingsbury, 2010). In 1984, under Ronald Reagan, the U.S. became a signatory to the 1984 United Nations Conventions Against Torture (Kingsbury, 2010). Presbyterian Minister Richard Killmer, an anti-torture activist, makes it clear, "Whatever the political or security issues are, they don't change the basic moral fact that some things are always, always, always wrong" (Kingsbury, 2010).
The ethical argument against torture is almost eerily simple. It begins with recognition of the humanity of all people. Furthermore, it builds upon the premise that, as humans, people have certain basic inalienable rights. One of those rights is the right to dignity and the other is the right of bodily integrity. Torture aims to tear down human dignity by denying a person's right to bodily integrity. Moreover, the arguments that torture can be acceptable in the face of a certain crime or crime are circular. The idea that terrorists should be allowed to define and control what a state determines is acceptable behavior for that state means that terrorists should be allowed to control government. The idea that human depravity should be met with equal depravity by the government suggests that nations should take their ethical and moral standards from the worst among us, rather than from the best among us. These positions are simply untenable in a society that wants to consider itself either ethical or moral.
Morally Justifiable Constraints and Restrictions on Citizens during a War on Terrorism
While torture may not ever be ethically permissible, even as a counter-terrorism strategy does that mean that a government is not ever appropriate to impose constraints and restrictions on citizens during a war on terrorism? In other words, are other human rights as inalienable as the rights to human dignity and bodily integrity? To answer that question, one must reflect upon whether other rights are as critical to the concept of humanity as the rights to dignity and bodily integrity. In many ways, it becomes clear that not all rights are equal. The Bill of Rights contained in the United States Constitution, while it has become a model for human rights in many ways, was not meant as an outline of the rights of all human beings, but as a specific redress to perceived wrongs by the English monarchy prior to the Revolutionary War. Therefore, imposing constraints and restrictions that violate those rights might be morally or ethically permissible in response to terrorism.
However, while it might be morally or ethically permissible to infringe upon the constitutionally guaranteed rights of American citizens in order to prevent terrorist acts or apprehend terrorists, it would be a critical error to equate that moral or ethical permissibility with legality. There is no clause in the Constitution that gives either the President or the Legislature the power to engage in the type of routine rights violations that have been embraced by both the Bush and Obama Administrations in the wake of 9-11. That these laws have not been successfully challenged speaks to the complicity of the Judicial Branch rather to any underlying constitutionality of the issues. It is very reminiscent of Plessy v. Ferguson, 163 U.S. 537 (1896), in which the Supreme Court determined that consigning African-Americans to non-white trains on public transportation was not a violation of the Equal Protection clause of the 14th Amendment; a decision that was not only morally wrong, but legally wrong, which is why it was later overruled. The reality is that the Courts can get it wrong, and while the checks and balances established by the three- branch governmental structure are meant to prevent overreaching by any single branch, when all three branches are impacted by the same social conditions, one can expect them to make similar mistakes.
While he 9-11 attacks may have been unprecedented in the American experience, the knee-jerk reaction to them, unfortunately, has not been unprecedented. During World War II, Americans were so terrified of the threat of the Japanese that they tolerated and supported the unconstitutional detention of Japanese-Americans who did not even have a theoretical connection to enemy Japan in internment camps. Those these citizens were not, for the most part, subject to torture, they were subject to a routine and governmentally-sanctioned deprivation of their rights as American citizens. This episode is a lingering embarrassment for the American government. The current anti-terrorist legislation is similar. People responded to fear by demanding that their legislators do something to stop terrorism, and that same fear has led the majority of Americans to sit back in silence despite open evidence that these laws are unconstitutional and have had a real impact on non-terrorist activity. The only real question is how many years will have to pass between 9-11 and the realization that these laws, like the internment of Japanese-Americans, are not…