Torture and the rule of law

The following is my regular Christian Courier column dated 8 June 2009:

At one time it was a commonplace occurrence to see convicted criminals treated in painful and humiliating ways. Grisly penalties were applied to murderers, pickpockets and heretics, and ordinary people turned out in large numbers to witness these spectacles, apparently learning the hard lesson that, to coin a cliché, crime does not pay. However the English Bill of Rights of 1689, adopted after the previous year’s ouster of King James II, prohibited the application of “cruel and unusual punishments,” in language that would eventually find its way into the US Bill of Rights and our own Charter of Rights and Freedoms, where the word “treatment” was notably added.

What then of pre-trial treatment? What means are permitted in questioning a suspected criminal, that is, someone who has not yet been found guilty of a punishable crime? Since ancient times brutal means have often been employed to elicit a confession or incriminating information from a defendant. Such means are still used throughout the globe, despite the existence, among other similar treaties, of the 1985 United Nations Convention Against Torture, of which Canada and the United States are signatories.

Arguments against torture are based on two types of reasoning, principled and pragmatic. On the principled side, it is argued that human beings have an intrinsic dignity that ought not to be violated through mistreatment, even if it is in the interest of a larger good, for example national security. An argument can also be made that those who engage in torture must suppress their own humanity to bring themselves to commit such an act. In short, torture is unjust.

Those of a more pragmatic bent insist that, even if torture were not morally wrong, its use is not effective, as the victim could easily confess to something he did not do in order to end the ordeal. Even if the suspect is guilty of harbouring information about fellow conspirators that might be crucial to stopping a terrorist act, he could just as easily give false or misleading information to his interrogators, who would not necessarily know the difference.

Nevertheless, the temptation to torture is one that many officials find irresistible when confronted with a threat to the lives of innocent people, much as in wartime a country’s government will be tempted to retaliate in kind against an attack on civilians. There can be no doubt that al Qaeda and similar organizations have employed unjust means, precisely to entice their opponents to respond in illegal ways and thereby discredit themselves.

Admittedly the United States was in a difficult international position as it sought an effective response to the 9/11 attacks. The Bush administration severely botched the public relations side of this as it needlessly alienated otherwise friendly governments needed to mount an effective multilateral defence.

Moreover, the fact that Washington claimed to be waging a war on terror was, from the outset, deeply misguided. It is precisely because this “war” has such a nebulous and unattainable aim that the government prosecuting it will tend to lose sight of which means are appropriate in its pursuit. If our aim is to eradicate terror, residual bourgeois sympathies, schoolyard bullying or something similarly unrealistic, any effort to do so will almost inevitably tempt us, in our choice of means, to flirt with the edges of legality and rectitude. Why? Simply because no means whatever will enable us to reach a goal so vague as to lack a reasonable chance of success.

Better to keep a feasible goal before us and to choose methods proper to its accomplishment, avoiding those that corrupt us and transgress the norms of justice.