Torture is wrong and must stay outlawed if civil decency is to prevail: An argument that fails the test of civilised society

By Malcolm Fraser, The Age (Melbourne), 19 May 2005

The test of any civilised society is the respect that society shows for the wellbeing of individual citizens. Over long centuries we have struggled to establish the rule of law, due process under the law, a set of rules which, as far as is humanly possible, guarantees fairness and justice.

Centuries ago, British courts began to outlaw evidence taken under torture. Through last century, most democratic countries passed laws banning torture. The United Nations passed conventions, which many have subscribed to, outlawing any form of torture. There are practical and ethical reasons for this.

The professor of law at Deakin University who argues for the right to torture, and indeed for its moral necessity in certain circumstances, fails to recognise the real world. He suggests that if you knew a person had evidence pointing to a terrorist incident that would enable you to stop it, then it would be right, morally defensible and necessary to torture that person. However, he asks the wrong questions.

It is not possible to know what a person knows with that kind of certainty. The professor's “beneficial effects” from torture could never be guaranteed. There could never be certainty that the wrong person is not being tortured or indeed that the rationale for torture has not been created simply to permit its exercise. The person being tortured, if he thought he had a chance of surviving, would say what he could to stop the torture.

As the Torture Papers recently published by the New York University Centre on Law and Security reveal, some senior members of the FBI and the CIA believe that torture is the most inefficient and misguided way of gaining evidence. Notably, it is soldiers or ex-soldiers who seem to question or argue against torture, not insignificantly on the grounds that it would put American soldiers at risk.

The unreliability of torture—and its often quite misleading consequence, with further damage to individual citizens—is a practical condemnation of the practice. That is not the main argument, however.

Respect for other people, respect for rights that unfortunately in today's world are too often abused or set aside, is the hallmark of a decent society. There is a golden rule: “what you do not wish to be done to yourself, do not do to others”.

The moral argument against torture is overwhelming. The fact that today's bans and prohibitions are too much honoured in the breach is not an argument to legalise any aspect or purpose of torture. It is an argument to apply the ban more fiercely, to let the outrage of ordinary people condemn those that practise it or preach it.

Professor Mirko Bagaric has a muddled view of the real world. Torture is equated with the right to self-defence. We therefore have a right to torture. The absurdity of that proposition is self-evident.

Professor Bagaric quite inaccurately compares the right to life of an aggressor with the absolute desirability of saving the life of a hostage. He describes a situation in which a hostage-taker is pointing a gun at a person's head, threatening to shoot him. If the police can get a “clear shot”, the hostage-taker would be shot. That, he claims, is a greater but acceptable violation of that person's rights than the violation that leads to the torture of a person and the ultimate freedom of the hostage. The comparisons, unfortunately, are odious.

If somebody had a knife at the professor's throat, that would be known and there would be no doubt about it. If a person is tortured to procure evidence, there will inevitably be all the doubts in the world. Is it the right person? What does he know, if he knows anything at all? The analogy is no analogy. The professor has created his own straw argument.

Professor Bagaric also suggests that permissible torture in certain circumstances will lead to a better society than one that seeks to outlaw torture absolutely. There is no reason or logic in that suggestion. There will probably always be ills in a society. One test is in the objectives that that society sets for itself and in its efforts to reach those objectives. One of those current objectives is the outlawing of all torture.

We are judged on the objective and on our efforts to achieve it, not on a state of perfection. To compare that situation with one in which society permits some torture represents a further perversion of morality. For the professor, the end justifies the means. For most of us, that is abhorrent and to be condemned.

Society will be judged by its respect for all people, by the rules we set and by which we seek to live. The strongest argument of all against torture is our knowledge that it is wrong and must be outlawed if a decent civil society is to prevail.

For centuries people have argued and struggled to condemn torture, to establish court procedures that do not admit evidence taken under torture. How can a professor of law, whom I am advised also teaches human rights, argue to the contrary? For that matter, how can law officers in the United States Justice Department argue that intrusive interrogation was permissible as long as it did not lead to organ failure or death?

Recently we have seen at least one Australian citizen illegally deported. We have seen the probability that Australian citizens have been tortured by a foreign power. We have seen the Government endorse a totally inadequate trial process, which has been condemned by the highest law officers in britain and by United States federal courts. We need to ask ourselves when the basic decency of the great majority of Australians will be stirred to outrage at these violations of basic human standards.