Afterword

The U.S. policy to adopt torture1 as an interrogation technique after the 9/11 attacks had a relatively short life span, yet it was deeply corrosive to the national interest and continues to be.2 First adopted by the administration of President George W. Bush in the summer of 2002, it was formally terminated by an executive order signed by President Barrack Obama on January 22, 2009, his second day in office. The actual official ...

Setting Universal Standards for Non-coercive Interviews and Associated Safeguards

This chapter makes the case for the need to develop a universal set of standards (Universal Protocol) for non-coercive investigative interviewing methods and associated legal and procedural safeguards. The purpose of this instrument will be to assist law enforcement officers and other authorities in carrying out their duties effectively, and in full compliance with fundamental human rights obligations. The Universal Protocol will promote an evidence-based, non-coercive model of investigative interviewing that operationalizes the presumption of innocence and ensures that no person under questioning is subjected to torture, ill-treatment, or coercion, including any forms of violence, duress, or threat. The authors elaborate on the legal, ethical, scientific, and practical arguments for the development of the Universal Protocol. Recognizing that all persons—whether suspects, victims, or witnesses—interviewed by authorities during criminal investigations may be confronted with the entire repressive machinery of society, the authors explain why the development of the Universal Protocol is necessary from the perspective of the prohibition of torture and other ill-treatment. They provide an explanation of how the use of coercive questioning techniques leads to false confessions, wasted resources, results in adverse operational consequences for law enforcement, and ultimately gives rise to more crime and insecurity. The chapter then provides an overview of the envisioned scope and substance of the Universal Protocol, which is expected to (1) elaborate on an evidence-, rapport-based, and empirically-founded investigative interviewing model that centers on the pursuit of truth (as opposed to the pursuit of confessions); and (2) enumerate a set of fundamental legal procedural safeguards designed to protect the physical and mental integrity of all persons during questioning. The authors conclude by discussing the international expert-driven process that is underway to develop the Universal Protocol, and reflect on strategic and substantive progress achieved to date. A call for the support of the development, endorsement, and implementation of the Universal Protocol is also issued by the authors.

Justifying Too Much

In this chapter, I analyze the use and abuse of utilitarianism in the torture debate, arguing that the latter might turn out to be utilitarianism's nemesis. For what the debate lays bare is that, if we are to take utilitarianism seriously, then we must be prepared to torture the alleged terrorist's child, or indeed anyone at all, to prevent the so-called imminent catastrophe. Furthermore, if that conclusion is unpalatable on rule-utilitarian grounds—in terms of the institutional and long-term consequences of such a practice—then those same sorts of consideration rule out torturing the alleged terrorist themselves. That this is systematically obscured by those who would purport to justify interrogational torture by their being highly selective about the consequences they consider, and/or by arbitrarily “modifying” the scope of utilitarianism when it generates inconvenient conclusions, again suggests that utilitarianism may be fundamentally flawed; and that its use to defend interrogational torture shows this. The argument is in four sections: a refutation of the alleged necessity of interrogational torture in “ticking bomb” cases; an analysis of utilitarian proponents' of interrogational torture properly to understand that their utilitarianism cannot accommodate non-utilitarian limits when inconvenient; third, their failure to acknowledge the implications of that for the permissibility of torturing known innocents to force others to divulge information; and, fourth, how these considerations come together to suggest that utilitarianism might not be a moral theory at all.

Professional Standards in the Aftermath of Torture

In addition to direct effects on detainees, interrogators, intelligence agencies, and law, the U.S. torture program had additional corrupting influences on other aspects of society. This chapter explores the effects that the torture program had on civil society by exploring its effects on the profession of psychology and on the largest U.S. psychological professional organization, the American Psychological Association (APA). We briefly summarize public knowledge regarding the involvement of psychologists in the CIA and DoD "enhanced interrogation" torture programs. We then describe the public response of the APA as news of this knowledge emerged. However, the public response did not match the APA’s behind-the-scenes actions, as was revealed by a 2015 Independent Review of APA leaders' potential complicity with the torture program conducted by Chicago attorney David Hoffman. The resultant Hoffman Report found a pattern of backchannel collaboration ("collusion") to ensure that APA ethics guidelines on psychologists' interrogation support did not constrain psychologists beyond permissive DoD rules. We then put psychology's interrogation controversy in the context of broader issues regarding the ethics of “operational psychology,” that is, the use of psychological knowledge and expertise by psychologists to further military and intelligence operations. We argue that certain operational psychology applications conflict with the ethics of the profession, and question whether practitioners of such applications properly belong to the profession of psychology. We conclude with a call for a Truth Commission to document the involvement of psychologists in post-9/11 detention and interrogation processes, and to focus on lessons learned regarding professional relations with the security sector, so that future generations of psychologists are less likely to repeat post-9/11 mistakes.

Defining Torture and the Obligation of Systematic Review in the CAT Treaty

Torture is one of the most severe and violent human rights violations and is absolutely prohibited under international law. As we also know from experience, most cases of torture occur during interrogations by law enforcement officials for the purpose of extracting a confession. After elaborating on the legal definition of torture under international human rights law and how torture can be distinguished from cruel, inhuman and degrading treatment or punishment, the authors reflect on the need to address the root causes of torture. While Juan Méndez’ call for a Universal Protocol for non-coercive interviews is an important initiative in this direction, this contribution focuses on the obligation of systematic review of interrogation rules under Article 11 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). This article of the treaty requires States parties to systematically review their interrogation rules, instructions, methods, and practices. Although it has not received much attention in the literature and seems—at first sight—to only establish a formal obligation to keep interrogation and detention rules under systematic review, over the years the CAT Committee has given a broad interpretation to this provision, making it an important safeguard for the prevention of torture and other forms of ill-treatment. The authors provide an overview of the CAT Committee’s practice and discuss how Article 11 of CAT, acting as a guarantee of minimum standards of interrogation, could represent an important provision for ensuring the implementation of the CAT’s preventive obligations, laying the basis for bridging the gap between law and practice.

Introduction

Torture is illegal. Beyond the pure human torment that was inflicted in the wake of the 9/11 attacks, the law against torture was another dreadful casualty in the “War on Terror.” Every knowledgeable reading of the codified and customary law recognizes the use of severe pain and suffering as a patently unlawful act for every nation today....

Drinking from a Poisoned Chalice

The following is an adaptation of the keynote speech given by John G. Baker at the 2018 NATSECDEF Conference, “Preserving Justice in National Security,” hosted by the George Washington University Law School on September 20, 2018. Brigadier General Baker examined whether the United States military commissions, special military tribunals established by President George W. Bush in the aftermath of 9/11 solely to try noncitizen terrorism suspects, were capable of achieving justice. Answering with an empathetic “no,” Brigadier General Baker described an increasingly troubling series of actions taken against defendants who had been secretly held and tortured by the same government that was then seeking their criminal convictions and executions. It is clear from this speech that by the time this piece is published, more, and possibly more troubling events, will have occurred, as the United States continues to pay the price of torture.

Reclaiming Bentham on Torture

Nearly two and a half centuries ago, Jeremy Bentham presented a moral challenge to the absolutist view on eliminating torture in all circumstances—written in the privacy of his study and never published during his lifetime. Although three sentences of his utilitarian argument for torture in limited situations have become quite well-known (often equated with the ticking bomb scenario), Bentham’s view on torture would be greatly served by a more nuanced understanding of his sometimes-contradictory opinions, the development of his thought, and the context of his writing. This chapter aims to provide a fuller view. We will find four main points well worth highlighting: (1) Bentham was strikingly indecisive about the effectiveness of interrogational torture; (2) he keenly touched on the same questions that drive scientific research today; (3) he worried that torture could open the door to tyranny; and (4) he struggled to find the proper standard of “certainty” that could trigger the government’s use of severe pain and suffering. In the long run, the trigger softened as Bentham identified the insurmountable hurdle that we can only suspect what resides inside a prisoner’s mind. As a result, I will suggest that a moral epistemic duty was implied in his work and would require that when choosing subjects for questioning, we must begin with a presumption of innocence as the innocent and ill-informed will inevitably wind up under questioning.

Torture, Dignity, and the Rule of Law

It has been claimed, “If cruelty is no longer declared unlawful, but instead is applied as a matter of policy, it alters the fundamental relationship of man to government. If you make this exception [and permit torture], the whole Constitution crumbles.” The ambition of this chapter is to provide the terms through which this judgment can be vindicated. The judgment’s pivotal assumption is that the prohibition on torture is in some manner foundational for any modern legal system. Three theses help to secure this foundational thesis: (i) Historically, basic rule of law and procedural due process requirements—most profoundly the doctrine of “innocent until proven guilty”—first emerge in the 18th century as the necessary legal bases for prohibiting judicial and penal torture. (ii) What is systematically implied by this historical process is that the modern rule of law is law’s own reflective effort to provide an absolute separation between the force of law and physical force, between legality or lawfulness and state violence. (iii) The rule of law’s emphatic separation between the force of law and the procedures of state violence presupposes that the object of law is the person with dignity, that is, a being possessing intrinsic worth. What dignity minimally means in the modern age is that while the state may deprive subjects of their liberty, it may not directly infringe upon their bodily integrity, or treat them in any manner that would infringe upon their equal intrinsic worth with all other legal subjects.

Unmasking the Challenges

International human rights law and international humanitarian law absolutely prohibit all forms of torture and cruel, inhuman, or degrading treatment (CIDT) at all times and against anyone, even the worst of criminals. International criminal law moreover provides for the individual criminal responsibility of perpetrators. Nevertheless, there remains a number of legal and practical challenges to overcome in order to ensure the effectiveness of this prohibition. The most visible challenge pertains to the implementation of the prohibition not only in domestic law but also in the concrete practice of law enforcement officials and other State agents. Other—less visible and insufficiently discussed—challenges concern laws and practices that may indirectly impact the effectiveness of the prohibition of torture and CIDT and whose acceptability under public international law is not crystal clear. For instance, is the prohibition of using evidence obtained through torture/CIDT (so-called exclusionary rule) absolute and applicable in all cases? How far does the international law obligation to prosecute and punish torture/CIDT perpetrators go? To what extent may individual perpetrators of torture/CIDT invoke mitigating circumstances or even justifications to avoid or diminish punishment for the commission of such acts in extreme circumstances? Does the passing of lenient sentences upon individual perpetrators of ill-treatment entail the responsibility of the State as a failure to punish? The present chapter will discuss these issues in light of contemporary international practice of various human rights bodies (treaty bodies and UN special procedures) and international/mixed criminal courts and tribunals.