The officers who pumped seven bullets into Jean Charles de Menezes as he sat in a Tube train in Stockwell station on 22 July believed he was a suicide-bomber about to detonate a bomb. They were wrong, and may now face trial for murder.
Whether or not they are prosecuted, however, it is almost certain that the Metropolitan Police’s policy of killing people who its senior officers believe are about to detonate bombs will remain. Sir Ian Blair, the Commissioner of the Met, has said it will stay, and insists it has been approved by the Home Office, the Crown Prosecution Service and the Metropolitan Police Authority. Charles Clarke, the Home Secretary, has gone further: he has confirmed that the shoot-to-kill policy applies not just to the Met but to all police forces in England and Wales. They are all entitled to shoot dead people they have good reason to believe are about to detonate bombs.
The great majority of the British people support this method of policing. So do the judges: shoot-to-kill isn’t going to be ruled illegal by the Law Lords. The public and judicial acceptance of shoot-to-kill is puzzling, however, when compared with the absolute prohibition on torture. Why, when we are so willing to accept a policy of killing people — a policy which has already led to the killing of an innocent man — do we have an absolute ban on the use of non-lethal torture? Torturing someone is appalling; but killing them is surely even worse.
Utilitarian logic is used to justify shoot-to-kill: hundreds of lives could be saved by the policy of shooting suspected suicide-bombers, so it is rational, ethical and legal to follow it. The same utilitarian logic justifies the use of non-lethal torture to extract information from terrorists when that information — perhaps it is the location of a radiological bomb primed to explode in the rush hour — could save hundreds of lives.
In law, however, that utilitarian calculation is deemed to be irrelevant when it comes to torture. Legally, it does not matter how great the threat to the security of the nation, or how much that threat could be contained by torturing someone. The prohibition on torture is, to use the language of the judges, ‘absolute, fundamental and non-derogatable’.
‘But the two cases are just not the same!’, I hear you object. ‘Torturers hold their prisoner captive. Police who shoot a suspected suicide-bomber are dealing with someone they believe to be a fugitive. They believe they have literally no alternative to shooting him if they are to stop an explosion. That’s the critical difference.’
Is it? Officials who use torture can hold a belief precisely parallel to the one held by the officers pulling their triggers: only by torturing this man can we stop the terrorists’ explosion. Those who insist that the reason torture is not justified is that torturers who hold their man captive are really just saying that they don’t think torture is necessary: there is always a chance the suspect might give up his life-saving information without being tortured. This is like someone opposing shoot-to-kill on the grounds that there are means of stopping suicide-bombers who are about to detonate their bombs which don’t involve shooting them. Perhaps there are. The only problem is that no one knows what they are. We do know that asking them politely to desist doesn’t work.
Most people will still reject any comparison of the horrors of torture with solid London policemen shooting people they believe to be suicide-bombers. Abhorrence of torture is at least partly grounded in the awareness that most torture that happens in the world is done not to extract information, still less to save lives, but to terrorise, humiliate, crush and kill political opponents by inflicting as much pain on them as possible. The practitioners are clearly vicious and violent psychopaths. To suggest that we should ever consider torture is repellent because it implies that we should become like them — which is about as far away from a decent, humane and civilised individual as it is possible to be.
But while all torture is certainly horrible, not all of it has to be ordered by thugs or inflicted by sadists. One of the most effective techniques of interrogation is said to rely on sleep deprivation. Sleep deprivation is classified as a form of torture, which it is, and is prohibited under European law. It seems extraordinary that we are willing to shoot terrorist suspects in order to save lives, but not to deprive them of sleep.
‘You are missing the point,’ you will tell me. ‘While killing a suspected suicide-bomber could prevent him murdering scores or even hundreds of people, torturing someone will never save anyone. Information extracted through torture can never be a reliable way of getting to the truth.’
If that claim were true, it would be the end of the debate: torture would be totally pointless, as well as brutal, cruel and horrific. But the unfortunate fact is that it isn’t true. Information extracted by torture is of course not guaranteed to be reliable, but then nor is any other way of extracting information, including giving someone a truth drug or just asking them. Not all kinds of torture work. But some kinds do.
The assumption behind the use of torture is that when a person will do anything to stop the pain, the first thing he will do is what his interrogators ask him, which is to tell the truth. General Paul Aussaresses tortured people suspected of being terrorists in Algeria on behalf of the French government in the 1950s. In his book The Battle of the Casbah: Terrorism and Counter-Terrorism in Algeria, 1955–1957, he cites a string of instances in which he was able to find bombs and break up terrorist cells as a result of torture. He claims that he quickly discovered that ‘the best way to make a terrorist talk when he refused to say what he knew was to torture him’.
In 1995 the Philippines’ intelligence service passed on evidence to the American and other intelligence services which helped to foil an al-Qa’eda plot to crash 11 aeroplanes carrying some 4,000 people into the Pacific, and to drive a Cessna filled with explosives into the CIA’s headquarters. They admitted that the information had been obtained by torture. The Israeli security service has also claimed that its policy of torturing terrorist suspects has led to the extraction of information which saved lives on many occasions. The claim was accepted by the judges on the supreme court of Israel who examined the evidence and ruled torture illegal. The British security services in Northern Ireland in the 1970s obtained information that they said enabled them to frustrate IRA bomb plots by methods such as depriving suspected IRA members of sleep, forcing them to take up stress positions and hold them for hours on end, hooding them and disorienting them with loud music or ‘white noise’.
The European Court found in 1980 that the British had ‘obtained a considerable quantity of intelligence’ through using such methods. Lord Hope of Craighead, a law lord, wrote recently that ‘it seems likely that the mixture of physical and psychological pressures that were used in the case of the IRA suspects would now be regarded as torture’, a view supported by the UN commission on torture, and the Israeli supreme court, both of which have already concluded that sleep deprivation, loud noise and forcing prisoners into uncomfortable stress positions for long periods count as torture. If that is right — and most jurists are convinced that it is — then all the techniques used by the British in Northern Ireland in the 1970s are unavailable to states which have signed the convention against torture.
What techniques are legally available? The US Army Field Manual 34–52 was drawn up with the explicit intention of sanctioning army interrogators to use only those techniques which are consistent with the ban on torture and with the Geneva Convention. It states that ‘the use of force, mental torture, threats, insults or exposure to unpleasant or inhumane treatment of any kind is prohibited’.
Chris Mackey (a pseudonym) is an interrogator trained by the US army who went to Afghanistan to question al-Qa’eda suspects detained in the wake of the US invasion of that country in 2001. He explains in his book The Interrogators: Inside the Secret War against al-Qa’eda what happens when ‘torture’ is conceived as widely as it is under international law, and all forms of torture are prohibited: effective interrogation becomes impossible.
Mackey also notes that American soldiers managed to obtain an al-Qa’eda manual on interrogation. That manual stated that ‘the Americans will not harm you physically’ because ‘they are not warriors’. The manual added that anyone captured by the Americans ‘must tempt them into striking you. And if they do strike you, you should complain to the authorities immediately.... You could end an interrogator’s career, and prompt a Red Cross investigation, if you could show a bruise or a scar.’
Chris Mackey reports that the most depressing thing for the US interrogators in Afghanistan at the time (2002) was the manual’s accuracy. It was correct in its account of how al-Qa’eda members would be treated by the Americans. The truth was, as one of Mackey’s co-interrogators commented, ‘You could lie to us, refuse to talk, switch your story from one session to the next, and there wasn’t a damn thing we could do about it.’
There is no doubt that non-lethal torture techniques such as sleep deprivation, stress positions and hooding produce reliable information much more quickly and effectively than just asking politely. So why do we reject the policy of using at least that kind of torture when it is essential to get information from a suspect quickly in order to save lives? How can it make sense to permit the government to kill people in order to save lives, while prohibiting it from injuring them for the same purpose?
Many people — including, it seems, most of the senior judiciary — think there is a straightforward answer to those questions. It is the existence of the slippery slope: once you allow any kind of torture, they say, it cannot be kept within bounds. Techniques degenerate very quickly from things such as keeping people awake for long periods to dropping concrete blocks on their legs — and they keep on degenerating from there. The only way not to end up in the pit of hell at the bottom of the slippery slope is not to go anywhere near it. That means an absolute ban on all forms of torture, even if the consequence is that lives which could otherwise have been saved are lost. It is inevitable that torture corrupts the state which practises it. Look, the advocates of the slippery slope argument say, at the states which have practised torture: South Africa under apartheid, Chile under General Pinochet, Argentina under the military dictatorship; or at the states which still do: China, North Korea, Syria, Egypt, etc. The coincidence between torture and awful political regimes is not an accident: start torturing, and it is impossible for the whole state not to become mired in barbarism and brutality.
Although history disproves the argument that countries which torture must sink into ever more terrible extremes of barbarism — France, Britain and Israel have all used torture in the past 50 years, and none has sunk into barbarism, or ceased to be a law-governed democracy — there is an important truth in the slippery slope argument, particularly at the level of the individual interrogator, as America’s experience since 9/11 shows.
The failure to extract useful information quickly from suspects under the rules laid down in the US Army Field Manual led Mackey and his fellow interrogators to look for ways round those rules: methods of interrogation which could be construed as narrowly conforming to the letter, but not to the spirit, of the Army Field Manual. So Mackey and his interrogators decided they could deprive a suspect of sleep, so long as the interrogator had to stay awake for as long as he kept up the suspect. Then they relaxed that condition, keeping the suspects awake while interrogators rotated. Mackey had started interrogators on the slippery slope. And he was alarmed to discover that the interrogators who arrived in Afghanistan to relieve him and his comrades started at the point where he had left off: they did not regard sleep deprivation (for example) as ‘a method of last resort, but as a primary option’.
The failure of interrogations to comply with the existing rules also led officials in the Bush administration back in Washington to consider the legality of harsher alternatives. That search led, in August 2002, to the now infamous ‘Torture memo’ to Alberto Gonzales, now the US attorney general but then a counsel to the President, from Jay S. Baybee, an assistant attorney general at the Department of Justice. Baybee proposed a redefinition of ‘torture’ according to which only techniques which inflict a degree of pain ‘akin to that which accompanies serious physical injury such as death or organ failure’ would count as torture.
Baybee’s analysis was not taken up by the Bush administration: President Bush, while denying that the Geneva Convention applied to al-Qa’eda fighters, nevertheless insisted that their interrogation should comply with it. But in October 2002 Lieutenant Colonel Jerald Phifer, who was in charge of many of the interrogations then being conducted at Guantanamo Bay, requested permission to use tougher techniques of questioning: he wanted to be able to use stress positions and isolation; he requested permission to exploit ‘specific detainee phobias’ such as the fear of dogs to induce stress, and ‘a wet towel and dripping water to induce the misperception of suffocation’; and he wanted to be able to use ‘mild, non-injurious physical contact, such as grabbing, poking the chest with the finger, and light pushing’. Lieutenant Colonel Phifer also requested permission to use falsified documents so as to convince a detainee that he and his family would face ‘death or severely painful consequences’ if he did not co-operate.
Donald Rumsfeld, the US secretary of defence, to whom those requests were made, did not approve of using wet towels or death threats. He did, however, issue permission for ‘mild, non-injurious physical contact’ together with the use of stress positions and isolation. Six weeks later, on 15 January 2003, he had second thoughts and rescinded the permission he had given. An interrogator could still make a special request to him personally to use those techniques in an exceptional case, however. He would decide whether, in that exceptional case, the harsher techniques could be justified. Rumsfeld later explained that his rescinding of blanket approval for the tougher techniques was prompted by the effect that using those harsher techniques was having on the interrogators.
Four months later, the pictures of the torture — perhaps they are better described as humiliation and degradation — conducted by American military police in Abu Ghraib prison, were broadcast on US television.
A number of commentators have claimed that there is a direct connection between the Bush administration’s decision to allow interrogation of a harsher kind than the US Army Manual permits, and what went on in Abu Ghraib. They insist that this connection demonstrates why an absolute prohibition on all forms of torture is necessary.
I do not think that this is what the Abu Ghraib epis ode shows. There have been at least four official investigations into Abu Ghraib. None of them has been able to uncover any document which suggests that what was done by the military police had any kind of official sanction. This is perhaps unsurprising. No one, as far as I am aware, has ever suggested that forced group masturbation (one of the ‘techniques’ employed and photographed by the MPs in Abu Ghraib) is of any use in persuading prisoners to reveal secret information.
But the official reports also discovered something more disturbing which had nothing to do with the events in Abu Ghraib: at least five people detained by the Americans in Afghanistan and Iraq had died ‘as a result of abuse by US personnel during interrogations’. That is, American interrogators had tortured five people to death. There are hints emerging from Washington that the death total as a consequence of torture has actually been much higher.
The Americans seem now to have stopped torturing people. Instead, they have adopted wholesale the policy of ‘rendition’: sending ‘high-value’ al-Qa’eda suspects back to countries like Egypt, Syria and Jordan where they will be subjected to the most appalling tortures — far worse than anything that American interrogators, even at their most animal, would contemplate. The Americans are then sent the results. It is difficult to see that as an improvement.
The general risk of sliding down the slippery slope does not, however, explain why we tolerate shoot-to-kill but abhor torture, because there is an exact parallel risk in the case of shoot-to-kill. It can degenerate — and in some countries it has — into the too quick and easy execution of people the police decide, on the flimsiest of evidence, might be terrorists.
In truth, there may not be anything which can explain our divergent attitudes to shoot-to-kill and to the use of torture. Perhaps the nation’s and the government’s public abhorrence of torture is tempered by a secret hope that, were the situation sufficiently dire and the number of lives to be saved sufficiently great, government officials would use torture to extract the life-saving information. I do not believe that is the situation, and I do not believe British officials would, at present, use torture, no matter how grave the threat.
But granted that we accept shoot-to-kill, it seems undeniable that there is a case for at least considering permitting the security and other services to use the harsh interrogation methods they used in Northern Ireland.
No one is suggesting that we turn our police into a version of the Syrian intelligence service, but no one is suggesting, either, that we let our security services use any of the techniques of interrogation (sleep deprivation, sensory deprivation, and so on) which have been deemed to be ‘torture’ — and that is the problem.
In the war on terror, we will need those techniques to save innocent lives as much as we need shoot-to-kill. The judges’ prohibition of all forms of torture has produced a ban on even discussing the use of any interrogation technique which might be effective. Although that helps the judges and us believe in our own moral integrity, it is not a safe way to protect ourselves from the terrorists who want to kill us.
Alasdair Palmer is public policy editor of the Sunday Telegraph.