Torture and the Ticking Time-Bomb The Definition of Torture

In 1984, the United Nations General Assembly produced an advisory measure known as the United Nations Convention Against Torture. This document specifically addressed torture from the perspective of governments and states, while it also focuses on the use of torture by any individual acting in an official capacity for said state or government. The document also addressed other forms of 'cruel and inhumane treatment'. Two other aspects of this convention are important: any government or state is forbidden to extradite individuals to a nation where it is reasonably possible that they might be tortured, and governments or states are required to act in an effective manner to halt and/or block the use of torture within their country. Evidence obtained from the use of torture is also forbidden from being used in any legal proceedings and/or courts.

The definition of torture specifically excludes actions involved in lawful sanctions (presumably such as the death penalty, but also perhaps the 'accidental injury' of a suspect during the actions leading up to his arrest). With this sole exclusion, torture was defined as being those acts by which physical and/or mental suffering and/or pain were intentionally imposed upon an individual as a part of an effort to obtain information (Ticking Time Bomb and Torture, n.d.). Factors involved in this definition include prohibition of any such acts by any public official, the deliberate intentionality of the act, regardless of the reasons and/or justifications put forth for its necessity, and the use of the word 'severe' in terms of mental and/or physical pain being inflicted. Both subjective and objective elements are thus included, as well as factors such as coercion and punishment (Wattad M., 2008-2009). While there are those who suggest that the United Nations' definition of torture may be limited in scope, and insufficiently defined, it can be used for the purposes of the discussion herein.

Section 1: Dershowitz on Torture

Alan Dershowitz (in Chapter15 pp.1 89-214, Darmer, ed. ref needed) eloquently presents his views on torture in an essay entitled "Should the ticking bomb terrorist be tortured?" He begins by describing how his teaching method at Harvard involves presenting students with a choice between evils (a story about a railroad engineer, vide infra), and from there takes the reader through his personal step-by-step process of thinking about torture. Dershowitz states that his teaching experience in Israel had a significant impact upon his views on torture, as this topic was of considerable importance at the time, and remains so to the present day.

Dershowitz comments that, even in the United States, the use of non-lethal torture is presently in use in order to obtain critical information needed to prevent terrorism. While torture is on-going, it is clandestine and neither commonly known, nor politically (or commonly) accepted; indeed, such acts are performed in a manner that provides deniability as necessary, and avoids accountability from a political perspective. Dershowitz himself deplores torture, and speaks of the ideal alternative where torture would not be used. He repeatedly frames alternatives to torture, even going so far as to suggest that when faced with the 'ticking time-bomb' dilemma, one might simply choose to turn away, rather than breach a moral imperative. In his essay, Dershowitz presents the perspectives of present-day as well as those of less modern philosophers, including both Jeremy Bentham and Voltaire. Indeed, Dershowitz offers a fifth road approach to the topic of torture, which consists of simply not even addressing the matter, and turning away from such a controversial and confusing ideation. However, he immediately counters this, saying it is far better to openly discuss torture, and the full gamut of its moral complexity, than to become the proverbial ostrich, hiding our heads in the sand and pretending that danger doesn't actually exist.

Torture without accountability is unacceptable according to Dershowitz, who feels that it also encourages moral hypocrisy and dishonest posturing. Dershowitz proposes that the best alternative that enables the United States to simultaneously protect the populace and act strongly as needed, yet retain at least the crumbs of moral superiority, would be to move towards judicial authorization of torture. With this controversial proposal, he is of the opinion that at the least, making torture become judicially sponsored, would have the net result of actual moral honesty instead of hypocritical pretense.

Dershowitz states that he is fully convinced that, were there a serious and imminent threat of mass-casualty terrorism, whether by nuclear, chemical, and/or biological methods, torture would unequivocally be employed in an attempt to gain information or to halt such an event (Dershowitz, 2002). Given the present state of affairs politically, and the fact that terrorism has, if anything, become more present globally, Dershowitz' thoughts on the topic are very interesting. Implicit in Dershowitz' work are questions of individual personal stance, as well as the collective societal stance, on the moral grounds of torture, and a direct impetus to explore the available alternatives when faced with such a quandary: a choice between...

Indeed, this precise question is posed by Dershowitz himself in his classes as the classic railroad conundrum. With respect to torture, Dershowitz states that he has deliberately tried to begin a debate on torture as a policy question for a democracy to address, specifically that debate is an important aspect when there are situations that lack a simple, 'good' resolution, but instead require the far more difficult 'choice of evil' decisions (Dershowitz, n.d.).
As described by Dershowitz, many authors and philosophers have discussed the 'choice of evil' scenario, of which 'the ticking bomb' is only the latest and most relevant. Assume a terrorist who has been captured, and is known to have information about an imminently impending attack with a weapon of mass destruction that could hypothetically maim and/or kill thousands. The moral dilemma then concerns whether or not torture, to gain potentially life-saving information from said terrorist is justifiable.

Dershowitz goes on to describe his trip to Israel, where he learned that torture as an active method to halt terrorism, or find out about impending terrorist activities, had moved beyond hypothetical into actuality. While Dershowitz himself advocated a 'purist' position - let the bomb go off - he found that Israelis were not willing to do so, even in conversation. Again, Dershowitz discusses his proposed alternative - if torture is going to be used, then make it 'legal' - require a warrant and advanced judicial approval. This idea from Dershowitz, to require judicial approval for torture, apparently engendered considerable attention and criticism from the media, among others. In his opinion, the essence of the idea for judicially approved torture was to arrange for accountability that was public, instead of clandestine actions of torture. For Dershowitz, legally sanctioned torture was at least a step towards honor and a maximization of civil liberties (Dershowitz A.M., 2002).

Following what is commonly called 9-11, the terrorist attacks of September 11, 2001, the mood, in a strictly emotional sense, as well as the intellectual perspective of the United States' populace towards issues such as torture were both radically altered. Indeed, agents representing the nation's highest law enforcement agency, the Federal Bureau of Investigation, reportedly stated that torture might be deemed necessary to prevent further terrorism such as 9-11 (Pincus, 2001). Following the horrors of Nazi Germany, many Americans, even those young enough not to have lived during that period, viewed torture as an inhumane act done by others, but never by Americans. Thus, the actuality of torture occurring on American soil, being done by Americans was shocking to say the least, and yet simultaneously, the mixed emotions arising from the 9-11 event had seriously altered many opinions as to what was 'right' when it came to terrorists, and gaining potentially life-saving information.

Dershowitz wrote a book about the topic "Why terrorism works: Understanding the Threat, Responding to the Challenge" (Dershowitz, 2002). In part, the focus of his book was to address ways in which to strike a balance between the highest possible retention of civil liberties simultaneously with working proactively to ensure national security. As discussed by Sung (2003), Dershowitz seeks to open a dialogue concerning the diverse challenges, both legal and moral, facing a democratic society that must simultaneously uphold our chosen values of personal privacy and liberty yet also act in a manner that will deter terrorism effectively. Dershowitz discusses means to prevent, or at least slow, terrorism by actions on both the micro- and macro- scales. The macro-scale would involve understanding and analysis of the various types of terrorism; the micro-scale would involve more specific and more situational actions. For example, Dershowitz considers the possibility that a particular subset of terrorists may be relatively rational, and are simply acting in a terrorist manner as a means to garner attention for their particular political cause. In such a 'micro' case, attention is precisely what should not be provided to the terrorist. Dershowitz viewed his own work as opening an all-important collective dialogue about torture, about…