Philosophy (Research Paper)
Philosophy
Yoo defined torture as an act committed upon a person with specific intensions to cause him/her severe mental or physical pain or suffering by another person acting under the color of law, and has his custody or physical control. This pain must not be as a result of lawful sanctions. This type of definition that Yoo uses is “threatening” and is unlawful. President Obama however, would oppose the use of torture. On the other hand, Luban, would say Yoo ignores the law models and war models if they deny terrorist suspects protection as required.
Yoo says, in order to convict a defendant of torture the prosecution must have establish that the torture occurred outside the United States, the defendant acted under the color of law, he victim was within the custody of the defendant, the pain or suffering should be intended.
Mental pain is effected by intentional or threatened infliction of severe physical or mental pain, administration or threatened administration of mind altering substances or methods that disrupt senses or personality, threat of imminent death or threat that another person will be immediately subjected to death.
.Luban raised two models,. First is the war model, which supports the use of lethal force on enemy troops irrespective of whether they were personally involved with the adversary. Also, killing of non-combatants is allowed when collateral damage is foreseen even if unintended. The evidence and proof is drastically weaker and attacks on the enemy are done irrespective of what he/she has done. Disadvantages in war model are that fighting back is a legitimate response, and as some nations resolve on fighting others may decide to be neutral. Also, “Prisoners of war who refuse to answer (questions) may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind”, The Third Geneva Convection.
In the law model however, criminals don’t get a shoot back. Any acts of violence from them subject them to legitimate punishment. If a criminal here was in war but politically and morally innocent, his rights are violated.
Even though, terrorists should be entitled to the due process like in the case of suicide bombers and terrorists, this poses danger to innocent civilians, and they deserve condemnation and punishment. Similarly, in a case like war is considered, we can say that harassments and tortures could in some way violate the rights of soldier when he/she is morally and political innocent and just fights as an order.
The U.S is accused of choosing the bits of law model and the bits of war model that best suits their interests to handle terrorists ignoring the remaining bits.
President Obama argues that the brutal methods of torture are not the most effective ways and they undermine the rule of law. He says these brutal methods also serve as recruitment tool and increase the enemies’ will to fight the U.S at the same time decreasing the will of other nations to work with the U.S. He also says tortures will make American soldiers who are captured to be mistreated. According to President Obama, “Rather than keeping us safer, the prison at Guantanamo has weakened American national security. It is a rally cry for our enemies. It sets back the willingness of our allies to work with us I fighting an enemy that operates in scores of countries”. In my opinion the premises are totally true and support Presidents Obama’s conclusion.
A premise that might have been left out, is that promising and delivering safety to one that has given information about the enemy can work just as good as the other premises.
According to me when a prisoner who is a terrorist with valuable information should be treated well, promised security for him and his family if he ever gives information concerning the enemy. Terrorists fear they masters and going home with a job half done is as good as suicide. Torturing him if it doesn’t make him give anything useful is no more than wasting time.
References:
1. Luban D,”The War on Terrorism and the End of Human Rights,” in War After September 11, ed. Verna V. Gehring(Lanham, MD: Rowman & Littlefield Publishers, 2003), 51-62
2. http://www.whitehouse.gov/the_press_office/Remarks-by-thePresident-On-National-Security
3. ABCNews/Washington Post Poll, May 2004
