Torturing Terrorists by Philip N.S. Rumney

Author:Philip N.S. Rumney [Rumney, Philip N.S.]
Language: eng
Format: epub
Tags: Social Science, Criminology
ISBN: 9781136184574
Google: mipWBQAAQBAJ
Publisher: Routledge
Published: 2014-11-13T05:01:53+00:00

4

Torture Statutes, Slippery Slopes and the Challenges of Regulation1

‘[The] prisoner should be manacled at the wrists with his feet upon the ground and his hands [stretched up] as high as he was [able to] reach against the wall.’ (1592)2

‘The individual stands about four to five feet from a wall, with his feet spread approximately to shoulder width His arms are stretched out in front of him, with his fingers resting on the wall. His fingers support all of his body weight … ’ (2002)3

As these quotes demonstrate, the regulation of torture and other coercion techniques has a long history. In the last decade a variety of regulatory models have been proposed that would serve to allow state officials to torture terrorist suspects in order to gain intelligence. These have included the use of the defences of necessity4 and self-defence,5 the notion of civil disobedience6 and defining torture in such a way as to restrict its application to certain interrogation techniques.7 However, most scholars who have argued in favour of legalisation propose the creation of an exception to the absolute prohibition that would allow for the use interrogational torture, but only in emergency situations.8 Few of these scholars have considered in detail the principles, procedures or safeguards that would underpin such a regulatory arrangement.9 This chapter will argue that while the use of a law-based regulatory arrangement might give the impression of precision and control, the reality of interrogational torture and of emergency powers generally suggests that legalisation would lead to significant regulatory difficulties. The chapter will consider the challenges of drafting a torture statute and will pay particular attention to a comparison between a legal standards approach to regulation and a more narrowly drafted rule-based law. This will assist in illustrating the potential difficulties of interpreting a legal provision in circumstances of urgency while maintaining tight control of the torture power.10

This chapter will examine the question of regulation within the analytical framework of so-called slippery slope arguments (hereafter SSAs) which suggest that a policy or legal reform will likely lead to a series of undesirable or unintended consequences that legal regulation is unlikely to prevent. SSAs are a classic consequentialist argument against legal reform and provide the final element of the cumulative argument that the case for legalised interrogational torture is inherently expansive and difficult to control. This chapter will continue to build this argument in order to construct an empirically-based SSA. It has been suggested that the use of SSAs in the context of legalisation are an ‘argument of caution, not a debate stopper’.11 Here, it is argued that the strength of SSAs against legalisation depend on the nature and probability of slippage. One of the problems that this chapter seeks to address is the fact that SSAs are often poorly used in the torture debate. Many opponents of legalisation make exaggerated claims while proponents offer unsupported denials that slippage would be a problem at all. This chapter will analyse various types of slippery slopes that might occur if torture were legalised and will do so with the support of empirical evidence.

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