When is torture acceptable?

[TriskettheKid]

In the U.N. Convention Against Torture, the definition is:

When the U.S. ratified this, they wrote a big bunch of reservations on the issue you're speaking of and limited the idea of severe mental pain somewhat, restricting it to things that are prolonged, for example. However, in the U.S. Code, the things that can be considered "severe mental pain" included the following:



It is completely disingenuous to say that waterboarding for example is not torture. It fits both (A) and (C). Waterboarding in particular relies on making the person think he is about to die.

I do wish people would stop claiming that the legal definition of "torture" is vague. It's quite explicit.

The problem is Bush's legal advisers tried to redefine torture in a way that is obviously contradictory to these laws. They say that for something to be "severe pain" to qualify as torture it must be pain that is equivalent to organ failure, loss of bodily function or even death. These guys should, at the very least, be disbarred for giving advice that is so plainly in contradiction to the law.

That's all well and good, but it skirts the issue.

Waterboarding, to me, is an act of physical and mental torture. It is primarily an act of physical torture that creates mental torture.

I'm talking strictly about mental torture.

I'm I'm reading these definitions right, then it seems that telling a suspect that an accomplice has confessed in a plea bargain and that the suspect will be facing the death penalty can be considered a form of mental torture.

Yet such a tactic is a commonly interrogation technique that practically every police station in the US uses.

So I'm just trying to figure out where the line gets drawn in regards to strictly mental torture.

 

[Lonewulf]

I was always brought up to think I was on the same side as the good guys

You might remember them. They collectivly fought WW2 againsts enemies who thought nothing of toture as a way to extract information. Away to exterminate people they simply didn't like

They fought the Cold War - Against a people we were warned about through cautionary tales such as 1984. People who would use torture to manipulate, change, extract lies as a way to the truth

Suddenly I wonder what happened to the good guys. I like being on their team. I like not lowering myself to bad guys level. I like being able to hold my head up and say "We are better than that"

I nominated this post, as a token of appreciation.

This is exactly my thoughts on the issue, put in the best form possible.

 

[JoeTheJuggler]

I'm talking strictly about mental torture.

The people who would justify waterboarding say that it doesn't actually cause physical pain. That the only pain is mental.

The same is true, for example, with pulling a prisoner from his cell and pretending you are going to shoot him in a firing squad. This is the threat of imminent death which is by definition the infliction of severe mental pain.

So too is, for example, killing or threatening to kill another person (a loved one or comrade of the prisoner being tortured). In this case, there isn't even the threat of anything physical against the prisoner, yet it qualifies (by explicit law) as the sort of severe mental pain that is torture.

ETA: A particularly heinous version of this last one is one I brought up on one of the other torture threads. You force the prisoner being tortured to choose which one of 2 loved ones will die. If he refuses to choose, you will kill them both. Again, absolutely no physical pain inflicted on the person being tortured at all.

 

[Lonewulf]

ETA: A particularly heinous version of this last one is one I brought up on one of the other torture threads. You force the prisoner being tortured to choose which one of 2 loved ones will die. If he refuses to choose, you will kill them both. Again, absolutely no physical pain inflicted on the person being tortured at all.

And if you don't kill anyone at all, that makes it utterly legal and acceptable to everyone!

(Going by the arguments on the other torture threads)

 

[TriskettheKid]

The people who would justify waterboarding say that it doesn't actually cause physical pain. That the only pain is mental.

The same is true, for example, with pulling a prisoner from his cell and pretending you are going to shoot him in a firing squad. This is the threat of imminent death which is by definition the infliction of severe mental pain.

So too is, for example, killing or threatening to kill another person (a loved one or comrade of the prisoner being tortured). In this case, there isn't even the threat of anything physical against the prisoner, yet it qualifies (by explicit law) as the sort of severe mental pain that is torture.

Well, I disagree with the waterboarding.

I think if it involves a form of physical handling to produce a state of mental torture, there has to be a form of physical torture there, as well.

However, your last two examples come closer to the issue I'm trying to figure out.

If, as I think we can agree on, going through a mock execution is a form of mental torture, then it's on the extreme end. We can readily point to it and, I think, agree that it's something that shouldn't be done.

However, where is the line with something like your second example. If telling someone they will be killed is a form of mental torture, then where does the line get drawn? Does this mean that a detective interrogating a suspect is torturing the suspect if the detective lies and implies that the suspect will be given the death penalty due to evidence gathered from an accomplice?

This is what I'm talking about. The definitions posted so far seem to be vague enough in the area of mental torture that I'd like to know where and how we can separate mental torture from commonly accepted techniques of interrogation.

 

[Upchurch]

“...how long can Barack Obama hold out, if it is not somebody else’s child, but their own children who they could save by waterboarding Khalid Sheik Mohammed, who when he is not spilling the beans, is laughing in your face?"

Our society is one made of laws and reason. Decisions should not be made at a gut level based on emotional situations.

In another thread, I was asked what I would do if someone threatened or harmed my child. I replied that I would kill the and that's precisely why I should not be the one to make that decision in that case.

That is also why we should immediately discount these kinds of loaded hypothetical questions when making policy decisions.

...Given that survival trumps magnanimity and restraint, it is important that policy makers never let things come the point where desperation dominates all considerations. The only way to be permanently or consistently restrained, as a practical matter, is to retain a very large margin over one’s foes."

And yet, somehow despite maintaining a very large margin and not having yet come to the point where desperation should have dominated all concerns, we reached that point anyway. There is no question that our policy makers let us down. The only thing left available to us is to hold the accountable for their actions or not.

 

[JoeTheJuggler]

I'm I'm reading these definitions right, then it seems that telling a suspect that an accomplice has confessed in a plea bargain and that the suspect will be facing the death penalty can be considered a form of mental torture.

Yet such a tactic is a commonly interrogation technique that practically every police station in the US uses.

I don't think that's true in real life. If you lie about the plea bargain (basically threaten the suspect with capital punishment) in order to extract a confession, you have pretty much guaranteed that the suspect will never be convicted.

A coerced confession is not admissable as evidence in any legitimate court.

Also, in this scenario, I imagine you've also had to deny the suspect other of his Miranda rights. (Right to silence and right to counsel, at least.)

 

[JoeTheJuggler]

Well, I disagree with the waterboarding.

I think if it involves a form of physical handling to produce a state of mental torture, there has to be a form of physical torture there, as well.

I don't follow this. By definition, the victim of torture is someone in your custody or control. Anything you do to them is "a form of physical handling", isn't it?

The people who claim waterboarding isn't torture differentiate it from the kind of water torture that causes physical pain (forced ingestion of water). It is strictly a form of torture based on the infliction of mental pain (make the person think he is about to die).

Does this mean that a detective interrogating a suspect is torturing the suspect if the detective lies and implies that the suspect will be given the death penalty due to evidence gathered from an accomplice?

Yes. You think it's not? If this is not the infliction of severe mental pain (of the type (C) in the U.S. Code) for the purpose of eliciting information or a confession, then what is it?

This is what I'm talking about. The definitions posted so far seem to be vague enough in the area of mental torture that I'd like to know where and how we can separate mental torture from commonly accepted techniques of interrogation.

I don't think it's vague at all. I think you might be confused as to what is a commonly accepted technique of interrogation. You cannot threaten a prisoner with death in order to get a confession. That's not legal.

 

[TriskettheKid]

I don't think that's true in real life. If you lie about the plea bargain (basically threaten the suspect with capital punishment) in order to extract a confession, you have pretty much guaranteed that the suspect will never be convicted.

A coerced confession is not admissable as evidence in any legitimate court.

Also, in this scenario, I imagine you've also had to deny the suspect other of his Miranda rights. (Right to silence and right to counsel, at least.)

It is true in real life.

You're talking of coercion, I'm talking of deception and implication.

I think you'll agree that there is a difference here:

Coercion: "We'll fry you if you don't confess."

Deception/Implication: "Your buddy confessed in a plea bargain. You'll be facing the death penalty for what we've got on you.....unless there's something you want to tell us?"

Or something along those lines.

 

[JoeTheJuggler]

It is true in real life.

You're talking of coercion, I'm talking of deception and implication.

I think you'll agree that there is a difference here:

Coercion: "We'll fry you if you don't confess."

Deception/Implication: "Your buddy confessed in a plea bargain. You'll be facing the death penalty for what we've got on you.....unless there's something you want to tell us?"

Or something along those lines.

What's the distinction? You're lying and telling the suspect that he faces capital punishment if he doesn't confess in both cases.

In real life, if this happened (and came to light), the court would not allow the confession as evidence.

Except maybe in the movies. . .

 

[Fiona]

Then you aren't really thinking. There is far more to say, even if you come to the same final conclusion.

Here are some examples of what more can be said:
http://pajamasmedia.com/richardfernandez/2009/04/22/terrorism-and-moral-torture/
"Now I agree with Jacoby that it is moral to refuse to use coercion even as “a last and desperate option”. But just as I myself undertook never to betray my companions under even the worst duress, the question I must ask is how long can you do it? How long can Nancy Pelosi hold out; how long can Barack Obama hold out, if it is not somebody else’s child, but their own children who they could save by waterboarding Khalid Sheik Mohammed, who when he is not spilling the beans, is laughing in your face?"

http://pajamasmedia.com/richardfernandez/2009/04/30/the-price-of-safety/
"As I’ve repetitively argued, a person or a society is entitled to run any degree of physical risk it chooses in order to uphold its moral values. But never blindly; never without understanding the costs. Given that survival trumps magnanimity and restraint, it is important that policy makers never let things come the point where desperation dominates all considerations. The only way to be permanently or consistently restrained, as a practical matter, is to retain a very large margin over one’s foes."

Note the two rather important concepts: first, it doesn't matter what anyone says, we WILL torture people if we get desperate enough. Secondly, if you wish to avoid the use of torture, you should be concerned not just with formally forbidding its use, you should be very concerned with making sure we never get to that point of desperation where any previous principles fly out the window.

I am aware of those concepts, Ziggurat. It is perfectly obvious that at least some parents will do absolutely anything for their child, and that that will include torture in extremis. Some will do that for their wider community too.

In some cultures the rights of a victim of crime carry great weight in the criminal justice system: and I see calls for "rebalancing" our own system in that direction also. But I oppose this idea for several reasons: one of which is relevant here. In our system the very last person who should be directly involved in matters of conviction and sentencing are the victims. This is because it is entirely unreasonable to expect them to be rational. That is no criticism of them: we recognise that few are saints and we are all apt to react in a vengeful fashion when we have been hurt or threatened. I have read reports of victims families who are distressed when someone convicted of. say. murdering their child is subsequently shown to be innocent and freed. This is not to say they all would prefer to keep that person in jail: not by any stretch. But some have been satisfied with the conviction and cannot let go of their certainty of guilt no matter what the evidence. That seems very human to me. For this reason I think that the rule of law requires that we allow those not so invested to take these decisions: and so with torture too.

In the first article you quote that necessary separation is deliberately excluded and this is an appeal to emotion. It is an excuse for bad behaviour which is neither necessary nor desirable. And I think it dishonest for that reason. Where a person in a position to try a case is directly involved in that way he should not be allowed to conduct the trial: and if an official's own child is kidnapped he also should not be allowed to be involved in any decision taken. That is how we will avoid the introduction of torture for the writer is correct: the pledge of the individual is worthless in such circumstances. Fortunately law and government are not individuals so we are safe so long as we choose to be.

As to the second argument: it seems a little obscure to me. People in most societies recognise a need for formal systems of criminal justice and this is the roof we all shelter under. Unless someone is proposing the abolition of the police and the army I do not understand the point that is being made. I see no question of a threat to our survival. I see no reason for panic. Perhaps there will come a time when there is such a threat but that time is not now.

What I do see is that some people are intent on suggesting that we are at that point: I do not know why they wish to do this but I see very grave dangers in it. Desperation can be manufactured and so can fear: but that is apposite to the point Joe the Juggler keeps making. Once allowed it never stops and we are no longer a civilised society: we are no better than our enemies. All I see in that second argument is straw men and false dichotomies

 

[Ziggurat]

Our society is one made of laws and reason. Decisions should not be made at a gut level based on emotional situations.

"Should be" is not the same as "is". It is dangerous to convince oneself otherwise.

In another thread, I was asked what I would do if someone threatened or harmed my child. I replied that I would kill the and that's precisely why I should not be the one to make that decision in that case.

That is also why we should immediately discount these kinds of loaded hypothetical questions when making policy decisions.

Quite the reverse: consideration of such hypotheticals MUST be included. To take your own example, if we are to have a policy of avoiding torture, we should prohibit relatives of kidnapping victims from interrogating the kidnappers. To fail to do so would be to invite torture should such a situation ever arise.

And yet, somehow despite maintaining a very large margin and not having yet come to the point where desperation should have dominated all concerns, we reached that point anyway.

Whether or not one concludes that we overstepped boundaries we should not have crossed, there are rather clearly still many boundaries which we did NOT cross. So I don't think it's at all accurate to claim that desperation did dominate all concerns.

 

[TriskettheKid]

What's the distinction? You're lying and telling the suspect that he faces capital punishment if he doesn't confess in both cases.

In real life, if this happened (and came to light), the court would not allow the confession as evidence.

Except maybe in the movies. . .

You're right, I didn't make enough of a distinction.

I'd just like to go back to the issue at hand, though:

Where is the limit on mental torture? How do we decide what is and is not counted based on the definitions already given.

I mean, forget the threat of the death penalty. Intimidation is commonly used in police interrogations, is it not? How does one decide that intimidation during an interrogation is or is not mental torture based on the definitions given?

 

[Upchurch]

"Should be" is not the same as "is". It is dangerous to convince oneself otherwise.

We're talking about hypotheticals, i.e. "when is torture acceptable". By its very nature, the question is one of what "should be".

Quite the reverse: consideration of such hypotheticals MUST be included. To take your own example, if we are to have a policy of avoiding torture, we should prohibit relatives of kidnapping victims from interrogating the kidnappers. To fail to do so would be to invite torture should such a situation ever arise.

You misunderstand. Policy should never be made by those for whom the question is emotionally charged, like in your quote that asked how long Pelosi or Obama would hold out. The question is posed of the policy makers' children not of some generic victim's relatives.

Whether or not one concludes that we overstepped boundaries we should not have crossed, there are rather clearly still many boundaries which we did NOT cross. So I don't think it's at all accurate to claim that desperation did dominate all concerns.

"We could have done worse" is a poor excuse for "we did a bad thing".

 

[JoeTheJuggler]

You're right, I didn't make enough of a distinction.

I'd just like to go back to the issue at hand, though:

Where is the limit on mental torture? How do we decide what is and is not counted based on the definitions already given.

I mean, forget the threat of the death penalty. Intimidation is commonly used in police interrogations, is it not? How does one decide that intimidation during an interrogation is or is not mental torture based on the definitions given?

First of all, both the C.A.T. and the U.S. Code point out that severe pain caused incidental to incarceration itself is NOT torture.

I think what you're looking for is "severe". As I mentioned, the U.S. Code specifies the sort of things that qualify. In the case of something like the insect in a confined space with a prisoner who has a known phobia, such a trial might come down to a battle of expert witnesses (though I think you'd be hard pressed to find a credentialed psychiatrist say that this mental pain is not "severe"). At any rate, even in that case, the point is moot since we have a larger pattern of torture (including waterboarding).

I also don't think intimidation is used in real life (where suspects invariably have at least some kind of legal counsel) as much as you think it is. Again, that sounds more like TV and movies.

 

[JoeTheJuggler]

We're talking about hypotheticals, i.e. "when is torture acceptable". By its very nature, the question is one of what "should be".

And in fact, having a clearly spelled out prohibition in all cases takes that emotional judgement call off the table. We want to make this decision in a calm and deliberative manner separated as far as possible from the heat of the moment.

 

[Ziggurat]

In the first article you quote that necessary separation is deliberately excluded and this is an appeal to emotion. It is an excuse for bad behaviour which is neither necessary nor desirable. And I think it dishonest for that reason.

I think you missed the entire point, which was NOT to excuse such behavior, but to recognize that it is, in fact, something that we cannot ever be sure we will avoid if we are pressed hard enough. It is in no way morally superior to pretend otherwise, and pretending is all such a denial is.

Unless someone is proposing the abolition of the police and the army I do not understand the point that is being made.

The point is that we should not take for granted that our ability to act restrained is a luxury, and it is a luxury which we can only maintain at a cost. The cost is more than just having an army and a police force: it's having an army and police force with overwhelming power compared to our enemies, AND the ability to use that power effectively against those enemies. Russia, for example, does not have such a military. It is no surprise, then, that when they fight, they fight far more dirty than we do.

I see no question of a threat to our survival.

Neither do I. But that situation will change if we don't actively maintain it.

I see no reason for panic.

Nobody is suggesting panic as an appropriate course of action.

Perhaps there will come a time when there is such a threat but that time is not now.

Correct. The point is that we should act to try to prevent such a day from ever coming.

What I do see is that some people are intent on suggesting that we are at that point

Who? Not me, and not the author of the essays I linked to.

All I see in that second argument is straw men and false dichotomies

Then look harder, because you missed the entire point and constructed some strawmen of your own.

 

[Fiona]

I do not think confessions have a good track record in any circumstances. The Guildford Four come to mind as examples of this. I think we need to come back to the presumption of innocence, and we need to hold tight to that principle. It is the job of the criminal justice system to prove their case beyond reasonable doubt before a conviction can be safe.

There is a story I heard. I do not remember the source and it may be apocryphal. I think it is based on the american justice system not our own, because it depends on a right to challenge jurors which we do not have. For my purpose it does not matter if it is true for it serves to illustrate a principle. It is said that there was a trial and before the jury members were accepted to serve they were asked "do you believe the defendant is innocent or guilty?". Those who answered along the lines of "I do not know till I have heard the evidence" were surprised to find themselves rejected: for the only acceptable answer was "I believe him to be an innocent man falsely accused"

That is what the presumption of innocence means. It is stark and it is over simple but at base this is what we take as principle. It is for the state to prove their case in face of complete lack of cooperation from the accused and in face of a will to disbelief on the part of the jury. If they cannot do that then they do not deserve to convict and they should not be able to adduce confession evidence if there is ANY suspicion of coercion of any kind at all.

 

[Upchurch]

And in fact, having a clearly spelled out prohibition in all cases takes that emotional judgement call off the table. We want to make this decision in a calm and deliberative manner separated as far as possible from the heat of the moment.

Bingo. When are you running for Secretary of State?

 

[Fiona]

I think you missed the entire point, which was NOT to excuse such behavior, but to recognize that it is, in fact, something that we cannot ever be sure we will avoid if we are pressed hard enough. It is in no way morally superior to pretend otherwise, and pretending is all such a denial is.

Upchurch has made my point more succinctly than I did but for the avoidance of doubt, did you miss the part where I said

Where a person in a position to try a case is directly involved in that way he should not be allowed to conduct the trial: and if an official's own child is kidnapped he also should not be allowed to be involved in any decision taken. That is how we will avoid the introduction of torture for the writer is correct: the pledge of the individual is worthless in such circumstances. Fortunately law and government are not individuals so we are safe so long as we choose to be.

Of course we can avoid it.

The point is that we should not take for granted that our ability to act restrained is a luxury, and it is a luxury which we can only maintain at a cost. The cost is more than just having an army and a police force: it's having an army and police force with overwhelming power compared to our enemies, AND the ability to use that power effectively against those enemies. Russia, for example, does not have such a military. It is no surprise, then, that when they fight, they fight far more dirty than we do.

Does Holland or Denmark or any other northern european country have overwhelming power compared to their enemies ? I don't think they do. Are they, then, hot spots for torture? I don't think they are.