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The events of September 11, 2001 radically altered the discourse on rights and security. In its aftermath, liberal democracies began to question the sanctity of certain founding values and well-settled norms. In this context, the absolute prohibition of torture became, once again, negotiable.

Compromises made in the name of security during the last thirteen years now haunt us. We are reminded of those compromises today as we read the declassified contents of the US Senate Select Committee on Intelligence (Senate Intelligence Committee) report on the CIA’s Detention and Interrogation Programme. This article invites further reflection—not only on the brutal acts of torture committed for the sake of security, but also on the fundamental shifts that have taken place within the discourse on torture during the past decade.

Norms and reality

The normative rationale for the absolute prohibition of torture is reasonably clear. It is based on deontological grounds: torture is inherently wrong because it violates the physical and mental integrity of the victim, strips her of agency and deprives her of dignity. Oren Gross observes, “it reduces [the victim] to a mere object … from which information is to be extracted.” Yet the post-9/11 discourse on torture has challenged this basic rationale and has attempted to disconnect it from reality.

The reality constructed following 9/11 presupposed the legitimacy of objectives such as counterterrorism and terminology such as the war on terror. The nomenclature of ‘terrorism’ was accepted without much resistance. Merely upon classification, ‘terrorist suspects’ received an alternative bundle of rights, often without basic safeguards against arbitrary detention and torture. Fundamental contradictions then began to emerge. Other individuals accused of grave international crimes were treated with dignity and were accorded due process–the treatment of Slobodan Milošević is a case in point. Yet scores of individuals with suspected links to proscribed organisations fell victim to secret rendition programmes and were placed in custody without any due process.

Meanwhile, American citizens accused of random acts of violence against civilians enjoyed the full gamut of protections under national laws while non-Americans captured on the battlefield abroad enjoyed no such protections. Compare Timothy McVeigh’s treatment with the fate of Ali Mansur Mohamed, an Iraqi man suspected of ties to Al Qaeda in Iraq; the irony that often accompanies these contradictions is illustrated by the fact that the solider who executed Mansur was the son of the federal prosecutor who helped convict McVeigh. These contradictions are not merely incidental to the exigencies of the battlefield; they are not merely due to the actions of rogue agents. They reflect a marked shift in the discourse—a shift perhaps exemplified by the Bush Administration’s ‘torture memos’.

The torture memos

Several memos prepared by the US Department of Justice held the opinion that certain CIA interrogation techniques did not violate US domestic law or international prohibitions on torture. The relative ease with which the Bush administration transformed the discourse on torture from the normative to the technical exposed a chink in the human rights armour: a vulnerability in the international legal framework established to prevent torture. These memos introduced a crucial modification to the discourse on torture. Until then, the struggle against torture occurred essentially at the implementation level; the problem concerned state agents committing violations outside the framework of the law. The Bush Administration sought to reinterpret the definition of torture to make room for a policy of coercive interrogation within the framework of the law. By doing so, it transformed the nature of legal assessment from an ex post determination of whether a state agent ought to be charged for torture, to pre-emptively redefining what constitutes torture to prevent any charges, ex ante.

The normative basis for prohibiting torture could still be reaffirmed if the memos were condemned as unconstitutional, and the state agents who acted under them prosecuted. On the contrary, the Obama administration decided not to prosecute any state agents whose conduct was sanctioned in advance by the justice department. This lack of accountability is incredibly damaging to the discourse on torture. It dismantles the philosophical basis for opposing torture and creates a precedent for states to exploit technical loopholes in the law in order to pre-emptively justify torture. The idea that “human beings are not objects from which information can be extracted” is slowly replaced with the idea that “terrorist suspects do not deserve to be treated humanely”. This transformed discourse promotes bad faith, invites indifference to normative considerations and helps state agents to evade positive obligations to protect individuals from torture.

The effectiveness debate

The most dangerous consequence of the transformed discourse is perhaps the resurrection of the debate on the ‘effectiveness’ of torture. Human rights advocates are compelled to engage with policymakers within the realm of utilitarianism to discourage the use of torture. The Senate Intelligence Committee report lends credence to this line of reasoning, as it focuses heavily on the fact that the CIA’s interrogation techniques were not an “effective means of acquiring intelligence.” Such observations are problematic in the context of increasingly sophisticated methods of coercive interrogation. One of the more startling features of the CIA’s detention and interrogation programme was the participation of medical personnel, including Behavioural Science Consultation Teams (BSCT), to ensure that the techniques used on detainees did not reach the Department of Justice definition of “severe physical or mental pain or suffering”. The presence of such personnel was taken to be a sign of good faith and a lack of intent to cause severe pain or suffering. In reality, however, the BSCT personnel were responsible for “enhancing the effectiveness of interrogation operations”.

This brings us to a disconcerting question: what if these methods were effective?

If the prohibition of torture is to remain truly non-negotiable, we ought to be unwilling to engage policymakers on the question of effectiveness. By retaining utilitarian considerations, we only encourage policymakers to postpone the debate until more ‘effective’ means are one day discovered.

Restoring conscience

The memo by Steven Bradbury on the application of Article 16 of the Convention Against Torture surmises that the CIA interrogation methods at issue did not violate the substantive standards of the Convention, as it did not “shock the contemporary conscience”. Perhaps, on some peculiar level, Bradbury was right. Perhaps strapping a human being onto a gurney, placing a cloth over his face and pouring cold water or saline solution on the cloth to produce the sensation of drowning did not shock the contemporary conscience at the time.

A climate of fear and paranoia often neutralises society’s customary outrage against egregious human rights abuses. And egregious crimes such as 9/11 and the recent attacks in Paris will generate those moments of fear and paranoia. It is in these moments that human rights advocates must fulfil their roles as guardians of contemporary conscience. Even during the darkest hour, they must compel society not to abandon its core values: that torture, regardless of its effectiveness, can never be authorised. For what is at stake is not merely the international standing of liberal democracies or the dictates of law–it is our lost conscience.