The “ticking bomb” hypothetical is often cited in discussions on torture. Many people believe that in such a situation, agents should do anything they can to find the bomb, including torturing the terrorist. Alan Dershowitz, a Harvard law professor, believes that in real life, torture would be used. He argues that a legal process should be adopted to approve torture in extreme cases, because this will prevent it from being used in other cases.
Others strongly disagree. Some believe that torture is absolutely wrong and the end (saving lives) cannot justify the means (torture).
Georgetown law professor David Cole questions whether the “ticking bomb” scenario could ever exist in real life: “There’s an inevitable uncertainty. You can’t know whether a person knows where the bomb is, or even if they’re telling the truth. Because of this, you end up going down a slippery slope and sanctioning torture in general.”
Others point out that torture would be ineffective in the “ticking bomb” case. The terrorist would be dedicated, know how long he had to hold out, and would likely mislead his torturers until the bomb went off.
Still others think that if the situation merits torture, the agents should be willing to risk going to prison. Would a prosecutor dare charge them with crimes if they saved the lives of thousands? If charged, the agents might be able to raise the defense of necessity, that they did something wrong to prevent a far greater wrong. If they were convicted, the president might pardon them.
Federal Court of Appeals Judge Richard A. Posner believes the strict ban on torture should be left in place even though torture may be justified in some extreme cases. If rules are made permitting torture in some circumstances, he says, officials will try “to explore the outer bounds of the rules. Having been regularized, the practice will become regular.”Torture and International Law
After the atrocities of the two world wars in the 20th century, most nations condemned torture and made it illegal. Several international agreements outlawed torture and cruel, inhuman, and degrading treatment. Two of the most important agreements were (1) the Geneva Conventions and (2) the Torture Convention (the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment).
In 1949, the United Nations adopted the Geneva Conventions, a series of international agreements. These conventions, which the United States signed and ratified, prohibits using any form of physical or mental torture on prisoners of war (POWs).
The Geneva Conventions permit the interrogation of POWs, but POWs are required to give only their name, rank, age, military organization, and serial number. According to the Third Geneva Convention, POWs “must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.”
To be protected as a POW, a person must be a “lawful combatant.” This is a member of a national army or military force with a chain of command. The individual must wear a uniform, carry weapons openly, and observe the “laws and customs of war” such as not deliberately harming civilians. A captured “lawful combatant” can be held until the end of the war.
The Torture Convention, adopted by the United Nations in 1984, extended the ban on torture to all persons. This international agreement obliges the signing nations to prevent any act of torture against anyone within its jurisdiction and to prosecute violators in its courts. Any person charged with torture could not use as a defense that he or she was following orders from a higher authority.
Under Article 1 of the Torture Convention, the person doing the torturing must be acting in an official capacity, such as a law-enforcement officer or military interrogator. Article 1 defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person . . . .” The Torture Convention excludes “lawful acts” such as imprisonment and capital punishment resulting from a nation’s criminal justice procedures.
Article 16 of the Torture Convention bans “other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture. . . .” The Torture Convention does not give examples of “cruel, inhuman, or degrading treatment.” The European Court of Human Rights, however, has said that this treatment includes such things as forcing people to stand for long periods, placing hoods over their heads, blasting them with loud noise or music, or depriving them of food, drink, or sleep.
The prohibitions in the Torture Convention are absolute. “No exceptional circumstances whatsoever,” says Article 2, “whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”Torture and U.S. Law
In 1990, the U.S. Senate ratified the Torture Convention. In 1994, Congress passed a law incorporating the Torture Convention into the federal criminal code. This law listed some specific examples of torture such as threatening a person with death or using drugs to severely disrupt a person’s senses or personality.
The U.S. Army Field Manual addresses the Torture Convention. The section on interrogation bans the use of force: “The use of force, mental torture, threats, insults, or exposure to unpleasant and inhumane treatment of any kind is prohibited by law. . . .” The Field Manual also states that using force during interrogation is a “poor technique” that encourages the captive “to say whatever he thinks the interrogator wants to hear.”
The world community developed all the prohibitions against torture and inhuman treatment before the emergence of worldwide terrorist attacks. In addition, Geneva Conventions on POWs largely concern the behavior of nation-states, not worldwide terrorist organizations, like Al Qaeda, intent on killing civilians.
In the new “war on terror,” the top priority is not conquering territory but getting timely intelligence to prevent attacks like those against the United States on September 11, 2001. Therefore, should the United States be bound by all the conventions when interrogating terrorism suspects?The Bush Administration’s Policy on Prisoners
After the terrorist attacks of September 11, 2001, the United States and its allies responded by attacking Afghanistan. Afghanistan’s Taliban government had refused to turn over members of Al Qaeda, the terrorist group that had carried out the September 11 attacks.
Lawyers within the Bush administration explored the legal status of Al Qaeda members and Taliban fighters. If captured, the lawyers wondered, were these adversaries “lawful combatants” protected by the Geneva Conventions?
Justice Department lawyers determined that members of Al Qaeda were not “lawful combatants.” Al Qaeda was not a nation-state and had not agreed to the Geneva Conventions. The terrorist organization’s members did not wear uniforms, usually did not carry weapons openly, and intentionally killed civilians.
The lawyers also found that Afghanistan’s Taliban fighters were not “lawful combatants.” Afghanistan had signed the Geneva Conventions in 1949, and the Taliban fighters acted as the nation’s army in 2001. But the lawyers pointed out that Afghanistan was a failed state, and the Taliban did not function under a chain of command, wear uniforms, or obey the laws of war. Thus, they argued, the United States could deny them both POW status and the protections of the Geneva Conventions.
The State Department did not object to the Justice Department’s position on Al Qaeda. But State Department lawyers argued that since Afghanistan had signed the Geneva Conventions, fighters for the Taliban government of Afghanistan had to be treated initially as POWs. If there were questions about individual fighters, their status had to be determined by a military board. The lawyers pointed out that this was the procedure the United States had followed for decades. Secretary of State Colin Powell had another concern about declaring that the Geneva Conventions did not apply to the Taliban. He thought it might confuse Americans on how to treat Taliban prisoners.
President Bush adopted the position of the Justice Department and decided that the Geneva Conventions did not protect Al Qaeda and Taliban detainees. He asked White House Counsel Alberto Gonzales for a memo on his decision. Gonzales wrote that the Taliban was “in fact, not a government but a militant, terrorist-like group.” He added that the “war on terrorism” required “the ability to quickly obtain information from captured terrorists.” This new reality “renders obsolete Geneva’s strict limitations on questioning enemy prisoners.”
On February 7, President Bush signed an order declaring captured Al Qaeda and Taliban detainees “unlawful combatants.” But he also ordered the U.S. military to “treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.”
Bush’s directives seemed to give military interrogators authority to use more force, but it was unclear how much. On August 1, 2002, the Justice Department submitted a new confidential memo from Jay Bybee, head of the department’s Office of Legal Counsel. The memo described physical torture as equal “in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” Mental torture, said the Bybee memo, “must result in significant psychological harm of significant duration, e.g., lasting for months or even years.”
(When the Bybee memo was disclosed to the public in June 2004, it provoked controversy. Many criticized it for defining torture too narrowly. The Bush administration withdrew the memo and replaced it with a memo that expanded the definition of torture.)
In December 2002, Secretary of Defense Donald Rumsfeld authorized more than a dozen new aggressive methods for military interrogators to use with Al Qaeda and Taliban detainees sent to Guantanamo, the U.S. military base in Cuba. These included forcing the detainees to stand for prolonged periods, isolating them up to 30 days, stripping them naked, putting hoods over their heads, depriving them of sleep, pushing and poking them, and using threatening dogs.
Military lawyers, however, questioned these tactics as possibly violating the Torture Convention’s prohibition against “acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture.” As a result, Rumsfeld revoked his authorization of many of the methods six weeks later.
In March 2003, the United States invaded Iraq, toppling the regime of brutal dictator Saddam Hussein. The Bush administration stated that the Geneva and Torture Conventions applied to POWs in Iraq.
In November 2004, President Bush nominated Alberto Gonzales to be the attorney general. (A couple of months later, the Senate confirmed him.) At his confirmation hearing, he stated that the Torture Convention’s ban on cruel, inhuman, or degrading treatment did not apply to non-U.S. citizens held overseas. He pointed out when the Senate ratified the Torture Convention, it placed the following reservation (alteration) on the treaty: Cruel, inhuman, and degrading treatment “means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments” of the U.S. Constitution. Gonzales argued that since the U.S. Constitution does not apply outside our borders, the treaty does not cover “aliens interrogated by the U.S. outside the United States . . . .” Others challenged his interpretation of the reservation. One was Abraham Sofaer, the State Department’s legal advisor who had presented the reservation to the Senate in 1990. He said that the reservation was intended to make sure that the same standard applied both inside and outside the United States.Reports of Prisoner Abuse
In 2004, the Army began investigating reports from FBI agents that the military was abusing prisoners in Guantanamo. The agents alleged that the military was sometimes threatening prisoners with dogs, blaring loud music at them, chaining them for long periods in uncomfortable positions, and depriving them of sleep, food, and water. An Army investigation of these allegations concluded that most of them were unfounded. “This . . . investigation found only three interrogation acts” as violating interrogation rules.
A U.S. Army investigation into prisoner abuse in Iraq became public in April 2004. Pictures of the physical and sexual abuse of prisoners in Iraq’s Abu Ghraib prison shocked the world. The secretary of defense appointed a special commission to review the investigations of abuse. The commission found that “Abu Ghraib was seriously overcrowded, under-resourced, and under continual attack.” It stated that changing policies on interrogation “led to confusion on what practices were acceptable.” It further found that techniques developed for Guantanamo had “migrated to Afghanistan and Iraq where they were neither limited nor safeguarded.” The report concluded, however, that the “vast majority of detainees in Guantanamo, Afghanistan and Iraq were treated appropriately . . . .”
The Army demoted the general in charge of Abu Ghraib prison, reprimanded more than a dozen other officers, and court-martialed and punished seven lower-ranking soldiers. One soldier received a 10-year sentence.
In September 2005, several U.S. soldiers reported new allegations of prisoner abuse to Human Rights Watch, a non-profit organization. The soldiers were in a combat unit fighting the Iraqi insurgency. They said that prisoners were often beaten by soldiers blowing off steam for “stress relief.” They emphasized that there were no clear rules. The prisoners were not turned over to military police, who are trained to guard prisoners. One soldier said, “We never should have been allowed to watch guys we had fought.” The Army is investigating the allegations.
The Bush administration says that any incidents of abuse are isolated incidents, and offenders will be prosecuted. But others counter that the problem is far more serious, and people higher up in the chain of command need to be held accountable.Accusations Against the CIA
Evidence has also mounted about a practice called “rendition.” Under this practice, the U.S. Central Intelligence Agency (CIA) takes captured terrorists and sends them into detention in other countries. Critics call rendition the outsourcing of torture. They say that the CIA transports terrorists to friendly countries that use torture for interrogation. Countries such as Egypt, Syria, Pakistan, Uzbekistan, and Saudi Arabia have long been accused of torturing prisoners, using such methods as beatings, pulling out fingernails, and electric shocks. Rendition reportedly began during the Clinton administration, but expanded greatly following the September 11 attacks.
The Bush administration denies that it outsources torture. President Bush has stated: “Torture is never acceptable, nor do we hand over people to countries that do torture.”
Michael Scheuer, a former CIA agent who claims to have started the rendition program, says that the main purpose of rendition is getting terrorists behind bars. He thinks there is little value in interrogation and none in torture: The CIA, he says, “has long held that torture gets you virtually nothing.”
In November 2005, the Washington Post reported that the CIA had secret prisons. Established after September 11, the so-called “black sites” hold a total of about 100 top suspects. The prisons reportedly have been at various sites around the world, but now are in Eastern Europe. The Post stated: “Virtually nothing is known about who is kept in the facilities, what interrogation methods are employed with them, or how decisions are made about whether they should be detained or for how long.”
U.S. National Security Advisor Stephen Hadley refused to confirm or deny the existence of the prisons. He did, however, state that President Bush’s order banning torture applied to all prisoners, even those held in secret. The Council of Europe plans to investigate because secret prisons could violate European human rights laws.Congressional Proposals
In the summer of 2005, Senator John McCain (R-Arizona), himself a victim of torture during the Vietnam War, backed a new bill in Congress to clarify the rules for interrogating terrorist detainees. The bill requires adherence to the U.S. Army Field Manual and prohibits “cruel, inhuman or degrading treatment or punishment” (language from the Torture Convention).
In supporting this bill, McCain said he was troubled that, “Confusion about the rules results in abuses in the field.” McCain believes his bill is necessary to end continuing detainee abuses that have harmed the reputation of the United States as a world leader in human rights. He states that American values should win against all others in any war of ideas, and we cannot let prisoner abuse tarnish our image.
President Bush has threatened to veto the McCain bill. The Bush administration worries that such restrictions may undermine efforts to secure vital information from detainees in the war against terrorism. Vice President Dick Cheney has suggested that the Senate amend McCain’s bill so that it will not apply to secret counter-terrorism operations outside the United States, terrorists who are not American citizens, and non-military personnel such as CIA agents.
Senator Ted Stevens (R-Alaska) favors Cheney’s amendment. “We’re in a war against terrorists,” he said, “and I don’t think they’re entitled to the same type of treatment that we give to prisoners of war.”
Senator Bond (R-Missouri) also supports the Cheney amendment. He emphasizes that the amendment “does not condone, permit, or accept torture.” It simply allows CIA agents greater flexibility in interrogations. He points out that the Army Field Manual is a public document, which terrorists can and do read. “We cannot outline in advance what the terrorists are going to be subjected to because that becomes the first chapter in the Al Qaeda operations manual.”
Senator Richard Durbin (D-Illinois) supports the McCain bill and opposes the Cheney amendment. He believes the prisoner abuse scandals have tarnished the image of the United States, which has always supported democratic values and the rule of law. He states that “American values . . . do not countenance the use of torture, cruel, inhuman or degrading treatment of prisoners, period. There is no exception that’s written in there for the Central Intelligence Agency.”For Discussion and Writing
1. What are the Geneva Conventions on POWs and the Torture Convention? What do they mandate regarding the treatment of prisoners? What people do they protect?
2. How does U.S. law require that prisoners be treated?
3. The Bybee memo contained a number of controversial positions not mentioned in the article. One was that the president did not have to follow the law against torture. The memo argued that as commander in chief, the president—not Congress or the courts—had sole authority over the detention and interrogation of enemy combatants. Why might this authority be helpful in the war against terror? What dangers might it pose? Do you think this part of the memo is correct? Explain.
4. Do you think there are any circumstances that would justify torture? Why or why not? If so, explain the circumstances. Do you think the absolute ban on torture should remain? Explain.
5. What is the McCain bill? What is its purpose? What is the amendment to this bill that Vice President Cheney favors?Which Proposed Law Do You Think Congress Should Pass?
In this activity, students role play members of Congress and decide whether to support the McCain proposal or the Cheney amendment.
1. Form small groups. Each group will play the role of a congressional committee that is studying the question above.
2. Discuss the McCain and Cheney proposals. Then take a committee vote on which one, if any, to recommend.
3. Use information in the article to write a report, listing the reasons for your committee’s recommendation. If the committee splits on the question, prepare a majority and minority report.
4. Each committee should then report its recommendation and reasons to the other committees.
5. After all committees have reported, identify and debate the best arguments for each proposal.
6. Take a vote on which proposal Congress should enact into law.For Further Information
Encyclopedia Articles on Geneva Conventions:
Geneva Convention relative to the Treatment of Prisoners of War Text of the treaty.
Links on Geneva Conventions:
Encyclopedia Articles on the Convention Against Torture:
Text of the Torture Convention:
Links on the Torture Convention:
Human Rights Watch: International Human Rights Standards Governing the Treatment of Prisoners Summary with links to the documents.
U.S. Code: Chapter 113C—Torture Sections 2340A, B, C of the U.S. Code.
Uniform Code of Military Justice Text of the code.
Field Manual 2-22.3 Human Intelligence Collector Operations in September 2006 replaced the previous manual on intelligence interrogation, Army Field Manual 34-52.
Wikipedia: Ticking time bomb scenario An explanation of the scenario.
The Case for Torture Warrants By Alan M. Dershowitz.
What tactics would be justified in what’s known as the “ticking time bomb” scenario? A roundtable discussion from PBS’ Frontline: The Torture Question. View the program online.
Challenge: Answer to the judge: The ticking bomb and the license to torture By Stephen Langfur.
Slate: Torture for Dummies: Exploding the “ticking bomb” argument By Michael Kinsley.
Washington Post: Torture, American-Style: This Debate Comes Down to Words vs. Deeds By David Luban, professor at Georgetown University Law Center.
Times UK: Why ticking-bomb torture stinks By Clive Coleman.
Common Dreams: Ticking Bombs and Slippery Slopes By Rosa Brooks.
Article by Charles Krauthammer arguing that torture must sometimes be used.
A Christian Ethics Symposium: The Truth About Torture? Panelists respond to Krauthammer’s article.
A case for torture By Mirko Bagaric.
CNN.com: Dershowitz: Torture Could Be Justified A discussion between Ken Roth and Alan Dershowitz over the warranting of torture.
Torture and the War on Terror A symposium at the Frederick K. Cox International Law Center.
White House: Statement on the U.N. International Day in Support of Victims of Torture Other White House statements, press briefings, executive orders, interviews, and articles on torture are here.
Transcript of the Senate Judiciary Committee’s hearings on the nomination of Alberto R. Gonzales to be attorney general Pages 56–60 express the claim that the Torture Convention’s ban on cruel and degrading treatment do not apply to non-U.S. citizens held overseas.
PBS Online NewsHour: Under Fire A conversation with the two ranking members of the Senate Judiciary Committee on Gonzales’ nomination and the torture issue.
Law and Torture By Ruth Wedgwood (professor of international law and diplomacy at Johns Hopkins School of Advanced International Studies) and R. James Woolsey, director of Central Intelligence from 1993–95.
Letters of Correspondence Between Democratic Senators and the Assistant Attorney General about U.S. adherence to the Torture Convention.
Washington Post Articles on the “Torture Memos”:
Memo Offered Justification for Use of Torture June 8, 2004
Justice Dept. Memo Says Torture ‘May Be Justified’ June 13, 2004
Justice Expands ‘Torture’ Definition December 31, 2004
Department of Justice: Legal Standards Applicable under 18 U.S.C. §§ 2340–2340A Memo on torture issued in December 2004.
Secret World of U.S. Interrogation May 11, 2004
‘Rendition’ Realities March 9, 2005
CIA Holds Terror Suspects in Secret Prisons November 2, 2005
Policies on Terrorism Suspects Come Under Fire November 3, 2005
Wrongful Imprisonment: Anatomy of a CIA Mistake December 4, 2005
New Light Shed on CIA’s ‘Black Site’ Prisons February 28, 2007
Final Report of the Independent Panel to Review DoD Detention Operations (PDF file) An August 2004 report.
Washington Post: Abu Ghraib Prison Archive of articles on the subject.
American Prospect: Is Justice Possible After Torture? More articles on torture. Also see its blog TAPPED: Torture Archives.
New York Review of Books: The Man Behind the Torture More lengthy articles on torture, but not all are free. If it says “preview,” then the article is only available to subscribers or those who pay.
Politico: Roosevelt was right: Waterboarding wrong More articles on torture.
Salon: Did waterboarding really work on Abu Zubaydah? See Salon’s archive of articles on torture.
Slate: Containing Torture: How torture begets even more torture More articles on torture.
U.S. News & World Report: A Diplomatic Dialogue About, Well, Torture More articles on torture.
Weekly Standard: Torture Logic: Where to draw the line More articles on torture.
World Press Review: Treatment of Prisoners Exposes America More articles on torture.
PoliPundit: How Bad Are Those “Torture” Techniques? More entries on torture.
James Thuo Gathii, Albany Law School.
Case Legal Studies Research Paper: The Unholy Trinity: Intelligence, Interrogation and Torture Article by Amos N. Guiora and Erin M. Page.
Columbia Law Review: Torture and Positive Law: Jurisprudence for the White House Article by Jeremy Waldron.
Cornell Legal Studies Research Paper: Torture as a Problem in Ordinary Legal Interpretation Article by Alan Hyde, Rutgers University, School of Law.
George Washington Law Review: Extraordinary Rendition, Torture and Other Nightmares from the War on Terror Article by Leila N. Sadat, Washington University School of Law.
International and Comparative Law Quarterly: Torture Article by David Hope.
IU Law-Bloomington Research Paper: One Thousand Shades of Gray: The Effectiveness of Torture Article by Jeannine Bell, Indiana University School of Law-Bloomington.
Florian Jessberger, Humboldt University of Berlin.
Journal of National Security Law: Ethical Issues Raised by the OLC Torture Memorandum Article by Kathleen Clark, Washington University Law School.
Journal of National Security Law and Policy: ‘Just for Fun’: Understanding Torture and Understanding Abu Ghraib Article by John T. Parry, Lewis & Clark College, Law School.
Legitimating Official Brutality: Can the War against Terror Justify Torture? Article by Miriam Gur-Arye, Hebrew University of Jerusalem, Felt Center for Legal Studies.
Loyola-LA Public Law Research Paper: Torture Article by March Strauss, Loyola Law School Los Angeles
Melbourne Journal of International Law: The Shape of Modern Torture: Extraordinary Rendition and Ghost Detainees Article by John T. Parry, Lewis & Clark College, Law School.
Minnesota Law Review: Are Torture Warrants Warranted? Article by Oren Gross, University of Minnesota Law School.
NYU Annual Survey of American Law: Torture, Judicial Review, and the Regulation of Custodial Interrogations Article by Jonathan Hafetz, New York University, Brennan Center for Justice.
Ohio State Law Journal: Affirming the Ban on Harsh Interrogation Article by Mary Ellen O’Connell, Notre Dame Law School.
Ohio State Law Journal: The Lessons of Abu Ghraib Article by Marcy Strauss, Loyola Law School Los Angeles.
The Prohibition Against Torture and Cruel, Inhuman and Degrading Treatment and Punishment Article by Yuval Shany, Hebrew University of Jerusalem, Faculty of Law and Institute of Criminology.
The Prohibition on Torture and the Limits of the Law Article by Oren Gross, University of Minnesota Law School.
Stanford Public Law Working Paper: Torture, Necessity and Existential Politics Article by Christopher Kutz, University of California, Berkeley, School of Law (Boalt Hall).
Virginia Law Review: Liberalism, Torture, and the Ticking Bomb (PDF file)Article by David Luban, Georgetown University Law Center.
American Enterprise Institute: A Crucial Look at Torture Law See also other articles related to torture.
Brookings Institution: Rendition to Torture: The Case of Maher Arar See also other articles related to torture.
Cato Institute: Doublespeak and the War on Terrorism (PDF file) See also other articles related to torture.
Center for American Progress: They Got What They Wanted See also other articles related to torture.
Center for Defense Information: The Use of “Torture” in Interrogation See also other articles related to torture.
Council on Foreign Relations: Torture, the United States, and Laws of War See also other articles related to torture.
Global Policy Forum: Torture & Prison Abuse in Iraq See also other articles related to torture.
New America Foundation: Examining America’s Policy on Interrogations and Torture Post 9/11 See also other articles related to torture.
Progressive Policy Institute: New Rules vs. No Rules for Detainees See also other articles related to torture.
Project for the New American Century: The Politics of Torture See also other articles related to torture.
Project on Defense Alternatives: Agonizing Issue: Is torture ever justified in military interrogations of terror suspects? See also other articles related to torture.
Rand: True Grit: To Counter Terror, We Must Conquer Our Own Fear See also other articles related to torture.