Can a democracy ever condone torture? In the months since Abu Ghraib, the controversy over what constitutes torture and when, if ever, it can be used has been rife. The pictures from the prison expose a sinister reality: Torture remains a dark weapon human beings continue to wield against each other.
The first military hearings of those accused in the torture have begun. Early this month, Pfc. Lynndie England, the 21-year-old whose impish grin smiled out from many of those brutal pictures, proffered a defense reminiscent of other torturers: England says she was just following orders.
Throughout history, torture has been employed in times of war and, as with the Spanish Inquisition, in times of social upheaval. In modern times, prohibitions against torture have made it anathema. Since the horrors perpetrated by the Nazis and the subsequent trials, the Geneva Conventions of 1949 were initiated, to which all of Europe, Great Britain and the United States are signatories.
Article 3 of that treaty is unequivocal: All forms of torture of detainees is illegal (including injury and threats of injury, rape and sodomy, hooding and stripping prisoners and other acts recorded in photographs from Abu Ghraib). The United States is also a signatory to the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treat-ment or Punishment, initiated in 1984. Article 2 states: "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture." (Article 16 adds: Signatories should also prevent torture in other jurisdictions.)
If these treaties weren't enough bar to torture, U.S. federal law prohibits it.
Despite the prohibitions against torture, the debate continues, suggesting desperate times make for desperate measures. Civil libertarian and Harvard law professor Alan M. Dershowitz asserts that view in Why Terrorism Works (Yale University Press, $16, 271 pages), echoing White House counsel Anthony Gonzalez's advice to President Bush. Dershowitz argues for controlled use of torture by the United States and other governments. Issuing "torture warrants" and practicing non-lethal torture such as sterilized needles under the fingernails, which inflicts extreme pain but does not kill its victim, could be implemented, says Dershowitz, and might provide essential information from al-Qaida operatives about impending attacks.
