Legitimating Official Brutality: Can the War Against Terror Justify Torture?

Abstract

In the aftermath of September 11, United States is confronted with dilemmas fundamental to any democratic regime faced with hostile terrorist attacks - dilemmas concerning the appropriate balance between human rights and national security. One such dilemma has to do with the method of interrogation of terror suspects. Detainees suspected of links with the Al-Qaeda network refused to answer questions and reveal information. Their silence led to a debate in the media about the possible need for torture. Following a similar debate in Israel, the Israeli Supreme Court ruled (in 1999) that the coercive methods of interrogation used by the security services are illegal. That ruling serves as a starting point for the discussion.

The article offers a distinction between official empowerment and justifications applied to officials. It argues that the State ought never to empower officials to use force in interrogations. The absence of such power will prevent the use of force as a matter of routine. In exceptional situations a criminal law justification may apply, requiring that the individual interrogator deliberate, before acting, on whether the circumstances are so powerful to justify the use of interrogational force.

A criminal law defense analogous to self-defense provides a possible justification for the use of force in interrogation. As in self-defense, the use of force will only be justified when needed to prevent an imminent concrete threat. It should, therefore, be limited to "ticking bomb situations", where the person under interrogation knows of the location of a bomb set to imminently explode and refuses to reveal the information. In such situations the use of force may only be justified in an attempt to coerce the terrorist who has planted the bomb to reveal the information necessary to defuse the bomb; it should never be justified in the case of bystanders who happen to know of the location of a bomb.