Does the unearthing of Osama Bin Laden justify the obtaining of information through torture?

Published originally in the Cambridge Universities Labour Club Blog (18/05/11)
http://www.cambridgeuniversitylabour.co.uk/does-the-unearthing-of-osama-bin-laden-justify-torture/

The detection of Osama Bin Laden and his subsequent death has obviously been big news of late. It looks like there will be an international investigation into the circumstances surrounding his death; the decision to shoot him when reports suggest he was unarmed, whether there was any real intention to capture him anyway and whether or not torture was used to glean the information from the Guantanamo detainees that led to his finding.

There have been a lot of noises coming from the White House suggest that Bin Laden’s capture proves the value of torture. Obviously the US were desperate to get rid of him and it is likely that his death reduces the likelihood of other innocent citizens being killed in a future terrorist attack of his design. However, does this result, or any other, vindicate torture in certain, exceptional cases?

145 world states have ratified the prohibition of torture, including the UK and USA, and the United Nations Declaration of Human Rights pronounces it unacceptable. Yet, it seems, in private, torture is still practised by governments who are not brought to justice, as appears happened in the extraction of the information about Bin Laden’s compound. Recently, some authorities have got around the rule through the practice of “extraordinary rendition”, which involves sending terror suspects for interrogation in countries where it is not prohibited by law. In his book, “Decision Points,” George Bush described a request from the CIA to ‘waterboard’ a suspect, who, it is thought, knew about imminent terrorist plots against the United States. He answered “Damn right” and said he would make the same decision again to save lives.

Waterboarding, the process which impresses the sensation of drowning upon the captive, was defended by the Bush administration after a US Justice Department memo in 2005 revealed that, through waterboarding the Al-Qaeda member Khalid Sheik Mohammed, the CIA gathered information allowing the government to prevent a 9/11-style attack on the city of Los Angeles.

One quite explicit reservation about torture is how effective is it in attaining truthful information. Under immense physical and psychological pressure, many suspects would simply tell the interrogators what they want to hear, which can actually harm rather than benefit investigations. In fact, many of those that are implicated in Al-Qaeda terrorism are willing to die and become martyrs for the cause. It has been suggested by guards at Guantanamo that most useful information comes instead from the guards building rapport with the inmates over time.

Guantanamo Bay 'Camp X-Ray' Detainees

A disgraceful proportion of inmates at Guantanamo Bay are held in spite of the fact that there is no comprehensive evidence against them, merely a “suspicion” of involvement in some sort of terrorist activity. The idea that completely innocent people are tortured for information they do not have is morally abhorrent and the proven psychological effects of some methods of torture last for years after its infliction.

It completely undermines the principle of Rule of Law (no person is above the law) if government ministers and intelligence agencies can award themselves an above-the-law status in the face of a mere ‘suspicion’ of terrorist involvement and inflict measured pain and suffering upon individuals who are yet to face a fair, legal trial.

In most worldwide courts, evidence obtained through torture is inadmissible. Apart from the obvious difficulties of trying the head of an international terrorist organisation, the court trying Bin Laden may have had trouble presenting key information which was obtained at Guantanamo Bay. This is possibly a reason why the Navy Seals appeared to make little effort to capture Bin Laden alive, yet it cannot be justification for acting outside the rule of law.

 The current age of constant terrorist threat is unprecedented and, probably understandably, national governments, particularly those of the US and UK, are overreacting by clamping down on civil liberties to guard against threats to the public. However, in an attempt to protect the nation using activities such as torture, they drastically encroach upon the freedoms of individuals. This behaviour is that of a totalitarian state and as much as that may help control terrorism, it conflicts with the principles the democratic world is founded upon.

In the case of ‘A v SS for Home Department [2004]’, Lord Hoffman in fact denied that Al-Qaeda was a ‘threat to the life of the nation,’

   “I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda. Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community. The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as [detention of suspects without trial]. That is the true measure of what terrorism may achieve.”

A “civilized democracy” that authorises torture upon a suspect foregoes some of that civilization and what makes it different from dictators or terrorists themselves: the equality of civil liberties and role of the independent judiciary to decide what is fair punishment.

The most convincing defence of torture as a life-saving option is the “ticking bomb” scenario; where a bomb is due to go-off in a city centre, inevitably killing thousands of innocent civilians. The authorities have, in custody, the individual who planted and could deactivate the bomb. Do they torture said individual and give themselves a chance of saving all those lives?

Apart from being quite an unlikely scenario, it does represent a situation where many would say the authorities should do anything possible to prevent the certain deaths of innocent people. One argument is that the west is at war with anti-western extremism and must take unprecedented action. The nature of terrorist attacks, which involve a significant element of surprise, means that most terror threats equate to a scenario of an ‘imminent threat’ to civilian lives. This certainly does not mean that all suspects should be tortured for information but the government has not the time to go through court or hold a referendum every time a ticking bomb scenario arises.

Osama Bin Laden in his 'safe house,' Abbottabad

According to a CIA memo, Khalid Sheikh Mohammed, who, it is professed, provided the location of Bin Laden’s compound in Abbottabad, was waterboarded 183 times over 60 days at Guantanamo Bay. Overlooking the moral obscenity of torturing thousands who had nothing to do with Bin Laden, the fact that Sheikh Mohammed did eventually give in and Bin Laden was subsequently found could vindicate the effectiveness of torture in these circumstances. With consideration to the lives that are probably saved from the foiling of the L.A terrorist attack and the death of Bin Laden, the torture of suspects for the key information could be, in hindsight, justified.

Acts of forcibly-extracting information have been vindicated in some cases. The European Court of Human Rights ruling in ‘Gafgen v Germany (2010)’, declared the forced-procurement of information through threats of violence from a suspect constituted “inhumane and degrading treatment” under Article 3 of the European Convention on Human Rights but not “torture.” Although the interrogators were punished (mildly) for coercion of evidence, some of which was rejected in trial, the court did not hold that the evidence obtained through the inhumane and degrading treatment rendered the trial unfair, as Article 6 of the European Convention on Human Rights suggests it should.

Terrorism comes from the autocratic belief that those involved are right and are willing to enforce this upon others for, what they have decided, is the ‘greater good.’ Torturing people for information equates to the same principal; our target is the most important and will be enforced.

We should remember the governments’ reactions to the (sometimes) violent actions of Martin Luther King, Nelson Mandela, Gandhi, et al, whose causes, in hindsight, we all support but at the time were opposed by the government. I have no sympathy at all with any terrorist cause but governments cannot simply decide to enforce their own ideal of the world upon everyone; the rule of law and due legal process must be followed and the liberties of individuals upheld in this way.

I am inclined to agree with Lord Hoffman that terrorism does not pose an imminent threat to the life of the nation and equally, national governments and intelligence agencies cannot have the option of torture at their disposal, it would inevitably be abused. Torture must be illegal, including the procedure of ‘extraordinary rendition,’ and those that practice it must face legal trial.

Torture will inevitably continue, in global institutions such as the CIA and the US and UK government but the perpetrators must face trial. In a cogently exceptional circumstance such as the “ticking-bomb” scenario, it is likely the punishment would be lenient. In countries such as the US and the UK, to a lesser extent, which allow juries to reach a verdict contrary to the judge’s instruction as to the law; jury nullification and pardons, torture in a scenario that threatened the lives of thousands or even the “life of the nation,” could realistically be forgiven.

I don’t think the capturing of Bin Laden meets this criteria and I hope there is a comprehensive investigation and due legal process enacted against the perpetrators.  In practicing torture we resort to militancy in the same way as terrorists and sacrifice our standards of humanity and decency, undermining the whole premise of a nation built on the rule of law.