By Jonathan Powers
Of all the words said and written about torture in the current debate very few have bothered to look up the history of the birth in 1984 of the UN’s Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Much of the groundwork was done by Amnesty International. Among countries which put their shoulder to the wheel, the Scandinavians and the Dutch worked harder than anyone else. But not far behind them was the US, whose president at that time was the grand conservative, Ronald Reagan, who had no trouble in persuading Congress to ratify the treaty. His fellow conservative, Prime Minister Margaret Thatcher of Britain, also whisked it through the House of Commons in quick time. “Those were the days,” you might say.
No one in the public debate, to my knowledge, has looked up the words of the treaty itself. They are stronger than anyone anticipated at the time. Nevertheless, the US Senate swallowed them without many dissenting votes. A key article reads that there can be no exceptions to the treaty, “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked in justification of torture.”
As Austin, Texas Professor Sanford Levison has written, “Every American constitutional lawyer is aware that the assertion of ‘compelling state interests’ often suffices to limit, say, the reach of the First Amendment and its proclamation that Congress ‘shall make no law abridging freedom of speech or press.’ Yet the Torture Convention makes it clear as language can possibly do that NO interest, however ‘compelling,’ will avail a government that tries to assert the ‘necessity’ of torturing a hapless suspect. The state cannot do it, period.”
Not even the ‘ticking bomb’ argument can override this law of the world. Do we think today that our representatives in 1984 had not considered the argument that in extremis if the authorities felt they were holding the one man or woman who knew where the ‘ticking bomb’ was located that torture was permissible? Of course they did and rejected it. As Harvard professor, Elaine Scarry, has noted, “What makes the ticking bomb scenario improbable is the notion in a world where knowledge is ordinarily so imperfect, we are suddenly granted the omniscience to know that the person in front of us holds this crucial information about the bomb’s whereabouts. (Why not just grant us the omniscience to know where the bomb is?)”
In the first two-and-a-half years after September 11, 2001, 5,000 foreign nationals suspected of being terrorists were detained without access to counsel. But only three of them were eventually charged with terrorism-related acts, and two of those were acquitted. “We will be certain and correct 4,999 times that we stand in the presence of someone with the crucial data, and only get it right with the five thousandth prisoner. Will the ticking bomb still be ticking?”
Interestingly in 1999 the Israeli Supreme Court, confronted with hard evidence of the use of torture by Israel’s General Security Services, outlawed torture and, referring to the hypothetical case of a captured terrorist knowing the location of a ticking bomb about to explode at a busy intersection, reasoned that “this decision [not to torture] does not ease dealing with reality,” but concluded that “this is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it.” It then added: “Although a democracy must often fight with one hand behind its back, it nevertheless has the upper hand.”
Given these arguments, and especially the irrefutable Convention against Torture, it is difficult not to say that President Barack Obama has equivocated too long on this issue.
So it is either up to the President to grasp the issues, nettles and all, or for Congress to set up its own commission of enquiry. As with Watergate, such Congressional investigations can take on a life of their own. It will severely embarrass ex-President George W. Bush and ruin his reputation for all time. And it will probably lead to the prosecutions of former vice president Dick Cheney, former Defence Secretary Donald Rumsfeld and the two Secretaries of State, Colin Powell and Condoleezza Rice. That is a big can of worms for any president to open, but a necessary one, as was the impeachment of President Richard Nixon and the imprisonment of a number of his most senior colleagues.
Of course, it is disrupting of day-to-day government, but if Obama has shown anything in his first hundred days it is that he has more than two hands when it comes to dealing with almost a hundred separate important issues.
