Imagine you have a known terrorist in your custody. He holds the information that could be used to disarm a bomb. With this information you can save the lives of thousands, perhaps millions of innocent people. But he will not give you the information. What do you do?

This hypothetical situation has entered the vocabulary of politics, in the US in particular, as the 'ticking time-bomb’ scenario. Most people conclude that you should do whatever it takes to get the life-saving information from the terrorist. The implication is that there are circumstances when it is morally justifiable to torture someone.

Abu Ghraib

US Supreme Court Justice Antonin Scalia was interviewed by the BBC. He explained top legal opinion on the matter: “Is it really so easy to determine that smacking someone in the face to find out where he has hidden the bomb that is about to blow up Los Angeles is prohibited by the Constitution?… It would be absurd to say that you couldn’t do that. And once you acknowledge that, we’re into a different game. How close does the threat have to be and how severe can the infliction of pain be? I don’t think these are easy questions at all, in either direction, but I certainly know you can’t come in smugly and with great self-satisfaction and say its torture and therefore it’s no good. You would not apply that in some real life situations.”

You might expect the man in the street to say something like this, but it is a very odd thing for an experienced judge to say. He surely knows how the law works. The law defines what is a crime, but there are many checks before someone is convicted of it. Most obviously, the possibility of mitigation applies to everything. No one would dispute, for example, the law against murder, but this doesn’t mean that everyone, from a serial killer to the perpetrator of a ‘mercy killing’, is treated in the same. Does this justify broadcasting the clear implication that it is sometimes OK to kill?

Why is Scalia obfuscating on torture? The Bush regime is sending signals to its people that they are free to do whatever it takes to win the Iraq and Afghanistan wars. It is a sign of their growing desperation as they surge ever deeper into a mess of their own making. 

After first denying it, the Bush regime admitted under pressure that it had allowed the use of ‘waterboarding’. This is one of its ‘special interrogation techniques’ that involves turning a captive upside down and pouring water on his face to produce a choking and drowning sensation. The Attorney General Michael Mukasey described it as “repugnant” and said he would consider it torture if it happened to him. Asked whether it was therefore, torture he said “it is not an easy question. There are some circumstances where current law would appear clearly to prohibit the use of waterboarding. Other circumstances would present a far closer question.”

Asked under what circumstances it could be used he said “the Attorney General would have to determine that the use of the technique is lawful under the particular conditions and circumstances proposed.”. It seems that there are a few things that Mukasey finds to be ‘not an easy question’, like what his job is.

Torture is illegal. The Attorney General is the man charged with interpreting the law on behalf of the people. All the man has to do is say what is or isn’t torture. Instead he’s decided that sometimes waterboarding is and sometimes it isn’t. It would be torture, for example, if it was used on him. It was certainly regarded as torture during the Second World War when the US state executed 8 Japanese officers for using it on American soldiers.

What is torture?

The World Medical Association got together in Tokyo in 1975 and came up with the following definition of torture: “…the deliberate, systematic or wanton infliction of physical or mental suffering by one or more persons acting alone or on the orders of any authority, to force another person to yield information, to make a confession, or for any other reason.”

Simple, and common sense, you might think. But this is not how it is defined in law. The UN code, as well as US and British law, says that any pain and suffering must be severe, and deliberately severe. Some people have taken this as a signal that it is, according to the law, OK to use a bit of pain and suffering, as long as it’s not ‘too much’.

People tend to ask advice from those they know will tell them what they want to hear. When George Bush appointed his previous Attorney General, Alberto Gonzales in 2002, he knew exactly what he was getting. Gonzales’s first act, as head of the supposedly independent legal arm of the state, was to sack all the attorneys who were not, in the words of a White House email, loyal ‘Bushies’. 

When Bush asked to clarify the law on torture, and in particular, the meaning of ‘severe’, Gonzales replied with a now notorious memo. In it he explains that ‘severe’ pain means “difficult to endure” and “of an intensity akin to that which accompanies serious physical injury such as death or organ failure.” The equivalent mental suffering is “not just at the moment of infliction but it also requires lasting psychological harm, such as seen in mental disorders like post traumatic stress disorder”. It must be of “significant duration, e.g. lasting for months or even years.”

Has this clarified things? To give an example of how confusing the question of ‘significant duration’ makes it, consider how it relates to the requirement for 'specific intent'. So if an interrogator was to put a hood over someone's head and make the sound of a gun being loaded, would this be torture? The interrogator was certainly intentionally causing some mental discomfort, but what if they were not, at that moment, aware of the long-term effects. Was the life-long post-trauma stress their intent?

Gonzales is right to say that by law “there is significant range of acts that though they might constitute cruel, inhumane, or degrading treatment or punishment fail to rise to the level of torture.” He conveniently forgets to mention that, according to the UN Convention, that the US ratified, cruel, inhumane, or degrading treatment is also illegal.

The memo goes on to consider Section 2340A, which is the specific law against torture: “we conclude that under the circumstances of the current war against al Queda and its allies, application of Section 2340A to interrogations undertaken pursuant to the President's Commander-in-Chief powers may be unconstitutional. Finally, even if an interrogation method might violate Section 2340A, necessity or self-defence could provide justifications that would eliminate any criminal liability.”

This means that in the opinion of the top lawman in America it is perfectly acceptable for the state to carry out cruel, inhumane or degrading treatment of its prisoners. Even severe and prolonged physical and mental pain is acceptable if the President deems it so, and even if the President has not explicitly allowed it, such treatment could still be acceptable on the grounds of ‘necessity’.

The majority of Americans are compassionate and fair-minded people. Many are expressly committed to what they call ‘American values’: freedom, humanity and justice. How did the state sanctioning of torture come about?

The capitalist state

It is very easy to condemn torture. There are no states in the world today that explicitly condone it and in the vast majority it is explicitly outlawed. Apart from any humanitarian concerns it isn’t very useful. Experts unanimously agree that people will say anything when tortured, so what they say has very little reliability.

Yet the UN, the US, and other states, use a definition of torture that differs from that of common sense and the World Medical Association. The explanation for this lies in the conflicting interests of the state in a capitalist society. On the one hand, its legitimacy rests on it representing the values of the people; on the other hand, it is ransomed to the ruling class whose priority is profit. These conflicting pressures show themselves in many ways, one of which is in the definition of torture.

The US legal system has evolved under these conflicting pressures. The US has a history of civil rights activists, consumer champions and progressive politicians, who have rallied the support of wide layers of the working and middle classes. They have injected a great deal of humanitarian language into American politics. Even President Bush has to use the rhetoric of progressive values. He says words like ‘democracy’ and ‘peace’ in almost every sentence.

Meanwhile the US oligarchy is stuffed with the political representatives of big business. Power is bought and politicians, no matter how humanitarian, are held to ransom by economic interests. They are intent on maximising markets and profits, and their rhetoric is loaded with appeals to ‘American interests’ and ‘American jobs’. In reality, they care only for their own interests and are always more than happy to export jobs to other countries if it will increase their profits.

The Bush regime is full of people who relish the image of ‘hawks’. They are exploiting the fear of terrorism and the tiniest traces of ambiguity in the law to push their agenda. They want the world to cower before the power of the US state. They desperately need to win these wars. So while Bush talks about winning hearts and minds, he is choking prisoners with water. While he speaks to the nation about freedom and American values, he is imprisoning people without trial.

After years of war, frustration is growing. Some soldiers, believing the propaganda that said the invasion was to help the people, are angry at the Iraqi’s ingratitude. Every day they see fellow soldiers killed. They see their efforts failing and know of no other way but to increase the intensity of the fight.

The credibility of the US state, and its role as the World’s Policeman, rests on its ability to control small states like Iraq and Afghanistan. Bush’s mission, ostensibly to export American values, including truth, justice and humanity, is hastily abandoning these values in a desperate effort to win. Even Bush himself couldn’t fail to see this contradiction.

Human Rights

On the great balance sheet of history the overwhelming majority of the victims of torture have been people resisting oppression. There is no record of torture ever being used to disarm a time-bomb. Its real purpose is to suppress resistance through fear. For this reason alone it must be implacably opposed by socialists. And by torture we mean any kind of cruel, inhumane or degrading treatment of a fellow human being.

But as we know from experience, it is one thing to make laws against something and another to actually stop it. Firstly, opposition to torture must be part of the constitutional commitment to human rights. But rights mean nothing unless they are enforced. So secondly, the state must be active and responsive to protect people in accordance with a constitution committed to justice. This necessitates the democratic election and accountability of the police and judicial system.

Judges are there to interpret the law and uphold the constitution. Should the law ever conflict with justice, then justice should prevail. In an accountable system this would trigger the democratic revision of the law. In any circumstance, including the ticking-time-bomb scenario, an interrogator who violated a prisoner’s human rights would be charged under the law. A judge, and ultimately a jury, would decide whether there were any grounds for mitigation.

Finally, to stop torture there must be no mixed messages. Our governments must reflect our values. We should end the power of big business to act in our name in pursuit of markets and profits.

Torture will exists as long as there are states intent on enslaving some people to the interests of others. As long as there are so-called ‘national interests’, there will be war, and with it, all the anger and frustration that produces inhumanity. In reality, ‘national interests’ are the disguised interests of big business. The people have only one interest, that is a society where power is shared equally and where human rights and justice are the highest values. Only under socialism, where the power of big business is eliminated, can our interests and values prevail.