Where are all the torture critics now?

I have no doubt that if an actual ticking time bomb situation were to arise, our law enforcement authorities would torture. … If we are to have torture, it should be authorized by law. Alan M. Dershowitz, Professor, Harvard Law School.

It is now over four years since the September 11 attacks, and yet the debate about how to appropriately balance civil liberties and the security of the nation rages on stronger than ever. Both in Australia and the United Kingdom, this fortnight has seen governments attempting to toughen anti-terrorism laws in response to a heightened sense of a terrorist threat, with civil libertarians up in arms over how these laws will impact on basic human rights.

In the United States a different kind of debate is underway, but one which has generated just as much passion and division as the anti-terrorism laws. It concerns the use of torture. While preventive detention and control orders are certainly contentious initiatives, in the great nation of liberty, debate is currently centered on whether the use of torture should ever be permissible as an interrogation technique in the war on terror.

The use of torture by the US military and intelligence agencies first gained prominence when photos emerged from Abu Ghraib last year. Following Abu Ghraib, and reports that torture was being used against prisoners in secret US detention centres overseas, Republican Senator John McCain (a former POW) introduced a Bill which would outlaw the use of “cruel, inhumane or degrading treatment” against all foreign prisoners held by the US overseas. This would make clear that the humiliating techniques performed on innocents held in US camps, as occurred at Abu Ghraib, would be unlawful. McCain’s Bill passed the Senate with a 90-9 majority vote.

The White House has, however, stated it will veto the amendment unless the CIA is exempted. Both President Bush and Vice-President Dick Cheney argue the exemption is necessary to enable CIA personnel to use aggressive interrogation techniques against suspects in secret detention centres (such as the one in Iraq detected this week), with a view to gaining vital information which may save hundreds, if not thousands, of innocent human lives.

Of course, Australia has not been immune to civil libertarians drumming up anti-torture rhetoric. Earlier this year, my colleague Professor Mirko Bagaric, head of the law school at Deakin University, was subjected to an extraordinary attack for a superb co-authored article in the University of San Francisco Law Review advocating the permissibility of torture in certain circumstances.

In this article, Professor Bagaric did not condone the use of torture in any situation, but only where “the evidence suggests that this is the only means, due to the immediacy of the situation, to save the life of an innocent person”. He further clarified the confines of permissible torture by stating: “This means that the recent high-profile incidents of torture, apparently undertaken as punitive measures or in a bid to acquire information where there was no evidence of an immediate risk to the life of an innocent person, were reprehensible.”

Some critics labelled Bagaric’s proposal as “morally repugnant and shameful”, others believed that “torture is not reliable and the effects it would have on its victims and on segments of society would be catastrophic”. At the time, I felt the “anti-torture” campaign that kicked off in response to Bagaric’s article was a gross (dare I say grubby and shameful) overraction by the latte left.

I am even more certain of this now after reading through the Victorian Government’s Crimes (Homicide) Bill 2005, introduced into the Victorian Parliament in October, and which passed the Victorian Parliament this week (November 15). The new law is the Government’s response to a 400-page report on defences to homicide by the Victorian Law Reform Commission released last year. This proposed new law will effectively provide a defence to the use of torture in situations of emergency - if the torture results in the death of a person. For the act of torture to be defensible, it must be considered reasonable in the circumstances (exactly what Bagaric advocated). This new defence of “sudden or extraordinary emergency” is to be located in new s 9AI of the Crimes Act 1958 (Vic).

The provision states:

9AI. Sudden or extraordinary emergency

1. A person is not guilty of a relevant offence in respect of conduct carried out by him or her in response to circumstances of sudden or extraordinary emergency.
2. This section applies if and only if the person carrying out the conduct reasonably believes that:
   (a) circumstances of sudden or extraordinary emergency exist; and
   (b) committing the offence is the only reasonable way to deal with the emergency; and
   (c) the conduct is a reasonable response to the emergency.
3. This section only applies in the case of murder if the emergency involves a risk of death or really serious injury.