Can an ethical case ever be made for the use of torture during interrogation?

Résumé du document

In the ancient Greece and Rome, the testimony of a slave would not be taken into account in a judicial investigation, unless the statement had been obtained after the subject was submitted to torture. Nowadays, although torture has been banned from legal systems and condemned at the international level, it continues to be widespread. There has been a semantic evolution of the word "torture" through the centuries, and this evolution has also had an impact on the concept itself. In that sense, as Peters points out, before the 17th Century, the definition was purely legal, and referred to as a "torment inflicted by a public authority for ostensibly public purposes". After that date, the definition started to be more moral. It then evolved into becoming a sentimental one since the 19th Century. What this evolution means is that torture is perceived more and more as a private element, which, according to Peters, is inaccurate. As far as he is concerned, torture belongs to the public sphere, and as an illustration, he provides a comparison between torture and execution, explaining that torture is "aggravated assault", when execution means "murder?. This distinction is the one that has also been made by the legislators and that is transcribed in the texts prohibiting torture. This also separates it from other "cruel, inhuman or degrading treatment or punishment".

Extraits

[...] Dershowitz does not only think that this option would have a positive impact on the practice of torture, he also believes that it is not inconsistent with modern legal systems. In that sense, he argues that the use of torture during interrogations does not violate the American constitution[40]. In regard to the Fifth Amendment, which forbids compelled self-incrimination, he does not consider torture as violating it as long as the information obtained from the coercive interrogation is not used in a judiciary prosecution[41]. What is more, he does not consider the eighth Amendment's protection against “cruel and unusual punishments”[42] applicable to interrogation, which does not constitute a punishment. [...]

[...] Torture as morally acceptable because of its pragmatic effectiveness We have seen the pragmatic arguments which have been made for the use of torture during interrogation, and which are presented as the base for the moral justification of this practice. We will now present the two opposing normative moral theories that can be used to define whether torture can be justifiable during interrogation, then the ticking bomb scenario and its interpretations, and we will finish with Walzer's theory of the dirty hands The normative moral theories As it is presented by Mirko Bargaric and Julie Clarke[44], there are two kinds of normative moral theories, the consequential and the non consequential theories. [...]

[...] 75-106 Articles Mirko Bargaric, Julie Clarke, enough official torture in the world? The circumstances in which torture is morally justifiable”, University of San Francisco Law Review (2005), pp. 581-616 Philip N. S. Rumney, coercive interrogation of terrorist suspects effective? A response to Bargaric and Clarke”, University of San Francisco Law Review (2006), pp. 479-513 Assaf Meydani, interrogation policy of the Israeli General Security Service: between law and politics”, International Journal of Intelligence and Counterintelligence, 21/1 (2008), pp. 26-39 Mark Bowden, dark art of interrogation”, Atlantic Monthly, 292/3 (2003), pp. [...]

[...] 103-119, p Maureen Ramsay, the torture of terrorist suspects be justified?”, The International of Human Rights, 10/2 (2006), pp. 103-119, p Maureen Ramsay, the torture of terrorist suspects be justified?”, The International of Human Rights, 10/2 (2006), pp. 103-119, p Seth F. Kreimer, close to the rack and the screw: constitutional constraints on torture in the war on terror”, University of Pennsylvania Journal of Constitutional Law (2003), p Mirko Bargaric, Julie Clarke, enough official torture in the world? The circumstances in which torture is morally justifiable”, University of San Francisco Law Review (2005), pp. [...]

[...] The question that arises therefore is the following: how can the persistence of the practice of torture worldwide be explained given this legal base of protection? In fact, it is easy to sidestep these rules in spaces of secrecy, through the creation of legal fictions like it will be observed further, and by adapting the methods. This implies the use of what some call “torture which consists on practices that do not leave long-lasting physical traces, like the falanga, hooding until the fainting of the victim, humiliation, sensorial deprivation, psychological torture etc. [...]