Legal and Ethical Aspects of Coercive Interrogation Methods, Including Torture

Come to think of how I want to continue with my second blog entry on this topic, it is no easy feat.

In my first blog entry (Dec 22, 2014, click on the category “Torture”) I began with my personal experience with what I decided to qualify as an act of torture: Two months into my police education and training, a trainee colleague of mine had to witness how a man in a holding cell was physically abused through repeated slapping into the face, because he decided not to reveal his identity after arrest. I wrote about how this was a defining experience for me. All of a sudden, too early, I found myself in a situation where I was presented with the unsettling and fearsome question of what I was supposed to do: Not accepting it, and how to act on this information? Risking my very young career? Becoming complicit, by not doing anything? As always, there is no easy answer for this when you have no power, when you are at the low end of the food chain, when decisive action may threaten you, when you are at the beginning of a process developing your values, and your skills.

I felt powerless, and I felt this was not directly affecting me (ultimately, it was up to my colleague to act, so, was I excused?). I realized that I had no immediate means available to me, means that would be proportionate and, at the same time, protect me. I kind of muddled through.

What happens very often though during early times of integration into a peer group is a form of rationalization which runs counter to official education at the Police Academy: Exposed to the reality, the value system of a rookie will be formed by what hard-nosed long standing (and sometimes questionable) police officers tell you. “Don’t listen to what they are teaching you at school, this is the reality” is what you are going to hear. This is a real challenge for formal education, and teaching values. Not only in the Police. It’s always the same. These processes erode integrity, and especially the fragile integrity of the young and vulnerable trainees. As a trainee, you want to get out of this situation quickly. I was sometimes watching my young colleagues in a state of mimicry, pretending they had an experience that they did not have. The result is a loss of depth of thinking, through massive reduction of the effects that learning has. Copying appears to be the easy learning. I guess I was the same, but I remember that I refused to give up ideals, and dreams.

I do see a link between remaining complacent, by staying silent, by saying: “I have no dogs in this fight.”, and growing gaps between laudable objectives of organizations, and the reality of how they behave.
I believe since long that there are fights in which everyone has to have dogs in.

This one, the fight against accepting torture under some inhumane justification which pretends that there is a higher good than fundamental human rights that everybody is entitled to, no matter what this individual has done, or is alleged to have done, this is one of those fights.

In my first blog entry I also introduced what is known as “coercive interrogation methods”: Not every act of coercive interrogation qualifies as torture, and even, depending on the applicable legislation of the State one is a member of, not every coercive interrogation method is illegal. I will explain, and I need to begin with the legally applicable framework of the State I grew up in: Germany.

Within the criminal procedural code of Germany, we know the legal concept of “prohibited interrogation methods”. In a nutshell, this means that not only I have to tell a person who is considered a suspect in a criminal investigation, at the beginning of a formal interrogation, which rights this person has. Here in the U.S., this is known as the “reading the Miranda Rights”. In any legal framework compliant to internationally accepted criminal procedural law respecting inalienable human rights, a suspect of a criminal investigation has the right not to cooperate, the right to remain silent, the right to not tell the truth. In the system I grew up in, the burden of proof sits with the State, represented by me, a police officer, acting on behalf of a public prosecutor. If a suspect is deciding not to cooperate, this shall not be held against her or him.

A suspect may lie, but I, as a police officer in my German system, I shall not act with the intent to actively establish a false belief. Though I am not obliged to correct an error the suspect is falling victim to, I am not allowed to actively create a false belief which then, in turn, makes the suspect revealing a fact that he or she would not have decided to reveal otherwise. Example 1: A suspect fears that other suspects may, or may have, confessed. As a police officer, I do not have an obligation to tell this individual what I know. I can keep this information for me (and observe the suspects’ painful deliberations about what I may know, or not). If he or she then decides to confess, believing that others may have done that as well, that is permitted. The information gained from this interview will be admissible in court proceedings. Example 2: I am telling a suspect that his or her partner in crime has confessed, though this is not true. If this suspect then confesses, he or she may later challenge the admissibility of this confession within court proceedings, as this information has been retrieved against the free will of this individual.

Within the German criminal procedural system, example 2 is an example for interrogation methods that are prohibited by law. Criminal procedural systems in other countries are different, at times somewhat less strict. Another example is the difference between an “Undercover Agent” and a so-called “Agent Provocateur”. Whilst I can infiltrate a criminal organization with the help of a fake identity, in Germany I can not actively provoke a criminal act (the meaning of “agent provocateur”). In that case, I may even be subject to a criminal investigation. As an undercover agent, I may witness a criminal act, which then may lead to arrests and my admissible testimony in a court proceeding, but under no circumstances I am allowed to incite a criminal act. Not every legal system prohibits the use of an agent provocateur, though.

The logic is clear: An active influence of the State, which is also the legislative authority having established the criminal code according to which certain acts are punishable by criminal law, is not permitted. The same authority which establishes the criminal code labeling a certain behavior as profoundly antisocial can not incite such behavior, on an assumption perhaps that this rotten individual would have done it anyway, with, or without a “little active help” (so, who cares whether he or she got a little push).

As I said, different legislations hold different views on this. But in all these cases, the essence lies with that a person has a free will to decide. For example, to decide to cooperate, or not, or to decide to commit a crime, or not.

Interim: This is one defining element that connects all “coercive interrogation methods” with torture, because torture is a subset, the worst one. I quote Article 1 of the UN Convention against Torture again: “… torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

By logic, any coercive method obtaining information or a confession which does not lead to severe pain or suffering, whether physical or mental, intentionally inflicted, is not torture. It may be something else, including constituting a crime, but its not torture. Yelling at, and insulting an individual may be a form of verbal or even physical abuse, and I may commit a crime, but its not torture. Tricking a suspect into a confession by using a blunt lie may even be less than a crime (I might breach discipline, though). In my legal system in Germany all these methods are not permitted, whilst some are, in other systems. However, torture is not permitted in any system of a country that is a signatory to the UN Convention against Torture. Torture is the worst and most horrible form of coercion the world knows about.

A torture victim and a rape victim are subjected to exactly the same form of brutality, humiliation, and utter helplessness. Torture is a monstrous sibling within a larger family of zombies, one of his sisters is rape, one brother is sadism. The plight and pain they have inflicted on mankind includes unspeakable horror, until today. I will write about some of those darkest chapters in history of humankind, including the Holocaust, later, in another blog entry. I will argue why torture needs to be condemned, and banned, in its entirety. Because there is no such thing like a little torture, and much torture. Once an act is qualified as torture, it is. With no justification at all.

The question is: Who decides whether an act constitutes torture? In my system, it’s the courts who do. Once an act is qualified as torture, there simply is no justification for it. Because otherwise, also a little rape, and a little sadism, can be justified for whatever one defines as a higher good. The lessons of history explain why that shall not happen: Because it always led to that the monster was producing two types of victims: the tortured, and the torturers. Yes, them too. Read this.

What about coercive methods then which are below the threshold of torture, taking into account what I wrote above: That different systems are differently permissive when it comes to coercion? My ultimate yardstick is compliance with, and adherence to, the Universal Declaration of Human Rights, international humanitarian law, and international (criminal) law. Methods of coercion that meet these standards may be subject to deliberation within national legislation and I would not challenge them from a UN perspective, whatever personal opinion I may have on that matter. Personally, I am objecting against all of them.

In this second chapter, I wanted to touch both legal and ethical implications. The ethical ones really make the topic of torture a very tough nut. I experienced this myself:

Between 1987 and 1989 I received my senior education leading to my Masters Degree in Public Administration. For this, together with my fellow students, I studied at the German Police University, having been an accomplished police officer by then for many years already. The campus of this University was where scholarship, students, and practitioners would meet.
One day, a senior police commander presented to us the case of a recent high profile abduction case he had been in charge of, recently. A child had been abducted and the perpetrator/perpetrators had sent in information according to which the child was likely buried alive. The objective of the police, naturally, was to safe the live of the child, and, if possible, also to arrest the perpetrator(s). Nobody knew whether there were one, or several perpetrators.
The negotiation team of the police held contact, and a special police operation was preparing the handover of the requested ransom money. This was the only chance for the team to get into contact with at least one perpetrator. This person or group had been extremely professional, no other lead to this person, group, or whereabouts of the victim existed.
When it came to the prepared handover of the ransom money through a specialized police team, the police commander decided to arrest the suspect who showed up. Now the clock was ticking, and yet, there was no information about other suspects, and the whereabouts of the child were unknown.
This police commander told us in his presentation: “Given this situation, I ordered the suspect to be beaten up in order to reveal the location of the victim, if he would not cooperate”. The suspect, obviously, received physical abuse, the location was identified, the child was rescued unharmed.

Clearly, at this stage of my police education, I was very conscious that this was, by all accounts, borderline or prohibited, that no law existed permitting this action. I know this commander very well, he is in retirement now, a dedicated and deeply humane police leader. There was never a criminal investigation.

I realized that there are situations where law does not provide a safety net, where there is no legal way justifying action. This colleague of mine was presented with a situation where inaction led to the likely death of a small child, and no path was visible that would have made the arrested perp cooperating at his free will. A few years later, another case like this happened in a large city of Germany, almost an identical situation. The Police Commissioner who had made the decision to apply physical abuse to make a suspect cooperating, he got sentenced for a crime, and had to retire from his post.

I want to end this blog entry here and to take it up with another entry soon again, but not without disclosing my own decision, when I asked myself: “What would you have done if you would have been in that situation?”

I acknowledged that there are situations where the law does not provide a solution. I realized that still, the ethical values on which the law is based, continue to exist. Law can not solve the fundamental dilemma that it can not cover the entire reality, but only provide a guiding framework. If law attempts to do this, it will solve one dilemma by creating a new one. There are, as a matter of fact, areas where law leaves one without guidance. I decided that, in such a situation, the ethical values that form the foundation of that law, often enshrined in the constitutional law of a State, are still able to form a conduit. So my thinking then was that I will not order somebody else to commit an act that constitutes a crime. If I, for whatever reasons, am confronted with a situation where either action or inaction will cause the loss of life, or where the loss of a life competes with the respect of inalienable human rights, only Ethics can guide me. I will do it myself, not shying away from any consequence of this action. I would find it impossible to order somebody else to commit an act of crime, perhaps torture, on my orders. I would have to make a decision, and to take and to live with the consequences, either way.

I leave it here, I want to keep the controversial tension high. This was what I concluded during my formal senior training. This decision which I took at that time, 26 years ago, it formed my understanding for that there always always needs to be an ethical layer on which law, and personal action, is based. Without this, law is purely technical, cold, and subject to any manipulation one can think of.

As some ethical layers are so fundamental that they only exist in black and white, in “do” or “don’t”, law does not help in that situation. However, manipulation of law for any self-announced reason does not help, either. Instead, it takes away ethical legitimacy of the law.

Naturally, therefore, I end with quoting Dick Cheney, the former U.S. Vice President, in a recent interview: Huffington Post (http://www.huffingtonpost.com/2014/12/14/dick-cheney-torture_n_6322872.html) is quoting him on Dec 14, 2014, from an interview that he gave to “Meet The Press” “I’m more concerned with bad guys who got out and released than I am with a few that, in fact, were innocent,” Cheney said.
About the program’s serious errors — and the abuses that CIA Director John Brennan described as “abhorrent” on Thursday — Cheney said, “I have no problem as long as we achieve our objective.”

That’s what I am talking about. Not having a problem as long as an objective is achieved. The dimensions of this sentence are broad, deep, and I fail to say more at this moment than how horrible such a statement is.

Why? Torture, systematic sexual violence as an instrument of conflict, sadism in treating adversaries and enemies, these acts continue to rip societies into pieces. They also communicate one message: “You are not worth being treated like you would have any rights. I strip everything from you, I take away your dignity. Because I can.” This is one of the most important issues of the most recent discussion about torture: As torturers have left the ground of humanity principles which we believe are universal, we have given reason to others to justify their atrocities using the same argument. We are co-responsible for the demons like Al Shabab, ISIS, or Boko Haram. Many have said this recently. I will come back to it.

But before that, I will try to finish my exploration of the relation between torture and civil criminal law.  After that, I will try to look into the Law of Armed Conflicts, and what it meant to strip detainees from the statute being “Prisoners of War”. We entered Hell on Earth, I believe.

We can go back, too, learn, and regret.

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