Not Saussure

November 6, 2006

A Decent Leftist bangs the drum for torture

Filed under: civil liberties, War on Terror — notsaussure @ 3:04 pm

Nick Cohen, in The Observer of all places, has discovered that torture isn’t such a bad thing after all — for other people, of course. In particular, for people whom Dr Reid wants to deport;

the courts are due to rule on the plea of Abu Qatada, known as ‘al-Qaeda’s spiritual ambassador in Europe’, that he shouldn’t be returned to Jordan. The case against allowing deportation is set out in a typically incisive report from Human Rights Watch, released last week. How, it asks, can assurances from Egypt, Libya, Jordan, Algeria and the rest be trusted?

To which the reply is, what would you do instead? A foreigner who MI5 says is a threat to national security has no right to refugee status. Yet he can’t be locked up because the law lords have ruled that internment is illegal. Evidence from his native country that he is a member of a banned organisation can’t be used against him because it may have been obtained by torture, and he can’t be deported because he may be tortured back home.

I must take exception to Cohen’s use of the phrase, ‘it may have been obtained by torture,’ since ‘it can’t be properly tested in court’ would be more accurate. I dare say that Tony Blair would raise a few objections if the police charged him with corruption and the sale of peerages primarily on the basis of a statement made in a foreign country by a witness who can’t be produced and whom there was every reason to suspect had been forced to make his statement under duress, and he’d be right so to do.

The short answer to Nick Cohen’s question is, of course, that there’s plenty you can do; if Abu Qatada shows any sign of getting up to mischief, we have, for example, the Terrorism Act 2006, which the Home Office (presumably with Dr Reid’s approval) assures us

contains a comprehensive package of measures designed to ensure that the police, intelligence agencies and courts have all the tools they require to tackle terrorism and bring perpetrators to justice,

including plenty of offences to do with the Encouragement etc. of terrorism. Then, if we can’t actually prove anything to a jury’s satisfaction, we’ve got the Prevention of Terrorism Act 2005, which contains control orders, brought in when the courts ruled that internment was illegal.

It’s all very well for MI5 to say something, but it would be nice to know they’ve got some basis for saying it, and that’s what courts are for; it’s only a few weeks ago, after all, that we learned

A judge has criticised the Home Office over contradictory MI5 intelligence in secret hearings involving two terrorism suspects, it has emerged.

The error came to light only because one barrister acted in both Special Immigration Appeals Commission case.

However, I’m taking the opportunity to have a go more generally at Cohen’s general point, that sometimes torture is an unfortunate necessity or fact of life, since it’s part of an insidious process of justifying and normalising the unjustifiable, with secret rendition and tough or unconventional interrogation techniques.

Cohen starts with the case of

Wolfgang Daschner, deputy chief of police in Frankfurt-am-Main, [who] gazed at Magnus Gaefgen, a law student and the prime suspect for the kidnapping of the 11-year-old son of a Rhineland banker. The policeman was certain he knew where the boy was, but Gaefgen refused to talk and had every reason to maintain his right to silence.

Suppose that Jakob von Metzler was slowly starving in a cellar. It was in Gaefgen’s interests to let him die and dispose of his body when he was sure the police were not watching him. Alive, the boy would be a prosecution witness. Dead, he would be the source of forensic evidence. If Gaefgen stayed quiet, he might get away with murder and the police knew it.

Daschner considered his options and wrote a memo. Gaefgen should be tortured, he said. ‘After being warned, he should be questioned again, under medical supervision, with the infliction of pain [no injuries].’ The kidnappers of children aren’t brave men and the mere threat of a beating caused Gaefgen to confess that he had murdered Jakob and hidden his body in plastic bags under a jetty.

It’s not completely clear, at least to me, how we get from a specific case in which Daschner thought — mistakenly, as it sadly transpired — that he had rapidly to obtain information to save the life of Jakob von Metzler to a general proposition that it’s OK to send people to probable torture or death because MI5 suspect, but no one can actually prove, that someone’s up to no good; I assume, though, that he’s using the episode to demonstrate that there are some circumstances in which we might consider torture justified.

This I’m not sure about. First, by a salutary irony, on the same day Cohen’s article appeared,

A 53-year-old man was arrested […] on suspicion of the murder of Lesley Molseed more than 31 years ago, a case that led to one of the worst miscarriages of justice in the UK. […]

During the original inquiry more than 12,000 people were spoken to and almost 5,000 statements were taken by detectives. Stefan Kiszko, a young tax clerk who had never been in trouble with the police, was arrested. He later signed a confession but claimed he was bullied into it.

Mr Kiszko had XYY syndrome, a condition where a man has an extra Y chromosome. The syndrome causes abnormalities in growth and behaviour. One of his traits was jotting down the registration number of a car if he was annoyed by the driver. This contributed to his wrongful conviction – he had noted down the number of a car later seen near the crime scene.

Mr Kiszko was jailed for murder but his mother, Charlotte, insisted he was innocent and campaigned for his release.

In January 1992 he was cleared on appeal after DNA profiling found that he was sterile and semen found on Lesley’s body could not have been his. He was later released but died of a heart attack in December 1993 at the age of 44.

In May 1995 it was announced that former superintendent Richard Holland and forensic scientist Ronald Outteridge, who were involved in the original investigation, would not face trial for perverting the course of justice after magistrates ruled further proceedings in the crown court would be “an abuse of process”.

which might give us cause to doubt the infallibility of police officers at times, particularly in highly charged cases, let alone that of MI5.

However, let’s leave to one side the question of how sure you are. To my mind, one of the best points about this was made by John Quiggin, a couple of years ago, discussing the infamous ticking bomb scenario;

Suppose that you have used torture to extract information from a prisoner in the belief (correct or not) that doing so was justified by a “ticking bomb” situation. What should you do next?

My answer is that you should turn yourself in, and plead guilty to the relevant criminal charges. I think this answer can be defended from a wide variety of perspectives, but I’ll take an intuitive one first. If the situation is grave enough to warrant resort to torture, it’s certainly grave enough to justify losing your job and going to jail.

In consequentialist terms, it’s desirable in general that laws against torture should be obeyed. Since few people will want to follow your example (particularly if they can’t plead a ticking bomb in mitigation) your action in such a case will undermine the law less than if you committed torture and got away with it. Other theories will, I think, give the same answer.

Turning from individual ethics to law and public policy what this means is that laws against torture should be enforced in all cases. A plea in mitigation might be considered in cases like the one described above – an urgent and immediate danger, followed by a voluntary confession. In any case where a confession is not made, no claims about mitigating circumstances should be admitted.

A similar point was made rather more recently by Arne Langsetmo in the course of a lengthy analysis of the ticking bomb:

If you’re convinced that you’re doing “the greater good” by torturing the individual and getting the information to save those thousands of lives, go for it. Just don’t expect to get off scott-free. Hell, if it’s for “the greater good” for the suspect person to be illegally tortured to achieve this great savings of life, then it’s also for the greater good for you to lay down your freedom as well, in order to save the masses. Do what you have to, and then take your lumps. You’ll have the solace, as you sit and rot in prison for torture, of knowing that you saved all those people … and you did it without corrupting the rule of law. Kind of like throwing yourself on a grenade to save your buddies … not really a wise idea in isolation, but under the circumstances, it could be admirable.

It’s a similar line of reasoning the one I followed during my late wife’s lengthy illness, though thank God I didn’t have to act on it. We’d obviously discussed the matter frequently, and certainly had the worst come to the worst I’d have helped her end her life on terms of her own choosing. But then I would have immediately called the police and thrown myself on the mercy of a court. There is no way I would have expected, or wanted, my actions to escape legal scrutiny and I would have been fully prepared to go to prison for manslaughter as consequence of doing what I knew to be the least bad, but still terrible, thing under the circumstances.

Returning to ticking bombs and torture, Stephen Griffin points out that we must be clear, when we’re discussing these ticking bombs and so forth, what we’re talking about:

In a democracy, I do not think we should ask our fellow citizens to sacrifice themselves or their principles for the public good unless we are, at least in principle, prepared to do the same. We may not be capable of serving in the military, but we should understand what that means before we ask our fellow citizens to fight for us. One of the signal characteristics of the TTB is that it treats the interrogators and their agency, their principles, as a black box. Who they are is unknown. But we should not assume “democracy for us, dictatorship for the interrogators.” The interrogators are our fellow citizens, part of our democracy, and it would be wrong to ask them to do something we were not prepared to do ourselves. Thus the democratic implication of the TTB is that we must steel ourselves to do something that is very unpleasant, but necessary.

So let us imagine ourselves in the interrogation room with the suspect. Evidence collected from his apartment certainly seems to indicate that he has knowledge of a looming terrorist attack, but he is begging for mercy. Too bad, isn’t it? All we have done is deprive him of sleep and clothing. And it is a bit cold. Unfortunately, he may be scared and cold, but he hasn’t given us one scrap of useful information. And we’re under some time pressure. Your superior has an idea. For better cover, the suspect was living with his family, a wife and young daughter. We’re detaining them in another room. The evidence seems to show the suspect cares for them. Perhaps if we brought them into the room? Your superior warns you to steel yourself for what comes next. Perhaps the suspect will respond to mere threats that they might be put to death in front of him. If threats are not enough, however, we must be prepared to do the worst. Of course, in some cultures there are acts regarded as worse than death. Your superior looks at you. Do you understand what he is talking about? Of course you do. You are experienced in the ways of the TTB, of doing what is necessary to elicit information under the terrible pressure of a deadline.

This is the the level of moral corruption to which Nick Cohen, one of the ‘decent left’, would lead us. It’s the inevitable consequence of accepting that torture’s justified. Once you accept it is justified, then it’s mere squeamishness and cowardice to cavil at some methods when less extreme ones have proven ineffective. Is he, or are other proponents of toture prepared to do what is necessary, or at least to watch while it’s done?

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