Torture, the Senate report and keeping our eye on the ball

Torture is illegal. Torture is illegal under United States law, international law and other national laws. Torture is illegal during wartime, peacetime, counterterrorism operations and any other circumstances.

The Senate Select Committee on Intelligence report on the brutal methods employed against detainees offers 6,000 pages worth of reasons and reminders why torture is prohibited. And yet, it seems even this is not sufficient — because the media, government officials and many others continue to debate whether torture is or was effective.

{mosads}Effectiveness is a red herring. Law is not one factor in many to be weighed in the decision-making process. Law sets the parameters for state and individual action — and within those parameters, we reach decisions based on resources, the effectiveness of different options and a host of other considerations. Talk of effectiveness suggests that law is simply a consideration, one that can be discarded when it proves too onerous or irritating. It is hard to imagine a more damaging conception to the entire enterprise of the rule of law and protection of fundamental rights and human dignity.

Furthermore, neither effectiveness nor necessity serves as a trump card to justify disregarding the law. Certain international law principles, like the prohibitions against torture, slavery and genocide, are jus cogens: fundamental overriding norms of international law from which no derogation is ever allowed, regardless of circumstances.

Even a cursory glance at history reinforces the need for such rules. German military theorists in the 1930s trumpeted a doctrine called kriegsraison, arguing that military necessity could justify any and all departures from the international law of war that protects persons during conflict. The consequences of such a doctrine were all too evident, as history shows, and the Nuremberg Tribunals and other courts rejected it roundly.

Others, from the former Yugoslavia to Sierra Leone, have argued that fighting on the “right side” in a conflict justifies war crimes, crimes against humanity and other brutalities. Again, such arguments get no traction before domestic or international courts, because if the cause at arms influenced a state’s obligation to abide by the laws regulating warfare and requiring protection of civilians, states would justify all departures from the law of war by trumpeting the purported justness of their cause. The result: an invitation to unrestricted warfare.

Discussions of effectiveness also ignore the important role law plays in protecting the morality of our soldiers and others on the front lines of the struggle against transnational terrorism. These men and women, asked to accomplish extraordinary goals on behalf of the state, must also come home and reintegrate into society at the end of deployment or service. When the law provides a framework for moral and operational choice, it helps preserve and protect their moral core. As Telford Taylor, the U.S. chief prosecutor at Nuremberg, explained, “War is not a license at all, but an obligation to kill for reasons of state; it does not countenance the infliction of suffering for its own sake or for revenge. Unless troops are trained and required to draw the distinction between military and nonmilitary killings, and to retain such respect for the value of life that unnecessary death and destruction will continue to repel them, they may lose the sense for that distinction for the rest of their lives.”

We have legal rules for all of these reasons. In war (or counterterrorism operations), exigencies abound. But certain conduct is beyond the pale, outside any acceptable notion of human behavior and can never be allowed, regardless of circumstances, precisely because humanity and the rule of law must rise above utilitarian considerations.

The current debates about effectiveness, whether inside the government or in the court of public opinion, demonstrate the need to reinforce the normative foundation on which our strategic, operational and tactical decision-making rests. Within that normative framework, we should promote robust and comprehensive debates about the value and effectiveness of lawful alternatives — options that enable us to achieve our objectives and retain and promote our essential values. But the ease with which the law has been forgotten in favor of debates about effectiveness is remarkable and, in fact, frightening.

Let’s not take our eye off the ball — torture is illegal. Full stop. Debates about effectiveness only serve to undermine that fundamental legal prohibition and open the door for potential future reprises of these brutal, illegal and immoral tactics.

Blank is clinical professor of law and director of the International Humanitarian Law Clinic at the Emory University School of Law.

Tags Senate Select Committee on Intelligence Torture

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