The Guardian 1 June, 2005
The open embrace of torture
As Amnesty International notes in its recently released report for 2005, Australian governments have a lot to answer for in the area of basic human rights. It points to the conditions of Indigenous people and the cases of Sydney teenager T J Hickey and the death in custody of Cameron Doomadgee on Palm Island. It lists the prevalence of violence against women and the toleration by the federal government of the denial of the rights of Mamdouh Habib and David Hicks at the hands of the US military at Guantánamo. The report also highlights the detention for long periods of asylum seekers (including children) in camps like Baxter and the denial of rights under new ASIO laws.
To this we could add the acceptance on the part of Attorney General Philip Ruddock of the use by its US ally of evidence obtained by torture against suspected terrorists and the "rendition" of detainees (including Australian citizens) to countries like Egypt where torture is used openly by authorities.
Nevertheless, until recently it would have been hard to imagine there would be a widely-reported public debate on legalising the use of torture in Australia. However, over the past few weeks there has been a lively exchange in the media with some academics, law enforcement officials and military spokespersons calling for a rethinking of what constitutes torture and the circumstances they believe justify its use.
The most extreme of these opinion makers actually embrace torture. They hold that it would be acceptable to tear out the fingernails of persons suspected of withholding information that could save the lives of innocent people or even to torture the detainee to death.
The debate was kicked off by the release of a paper co-authored by Professor Mirko Bagaric — the head of the Deakin University’s Law School — and fellow Deakin law lecturer Julie Clarke. Professor Bagaric served until recently on the Refugee Review Tribunal and will take up a position on the Migration Review Tribunal in August.
Entitled Not enough (official) torture in the world, the paper argues that "Torture is permissible 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." It is to be published by the University of San Fransisco Law Review and Professor Bagaric has already been flown to the US to appear beside Colonel Janis Karpinsky — the former army general who took the rap for the Abu Ghraib prisoner abuse — in a debate organised by the journal’s home university.
The Australian academic also set out his "case for torture" in the Melbourne Age last week. The Professor argues that as torture already takes place in 132 countries (Amnesty International figures) we would be well served by bringing it out in the open where it can all be "regulated".
He maintains that the moral questions raised by the use of torture are no different from those involved in a situation where police get a "clear shot" and kill someone holding and threatening the life of an innocent third party. To the professor’s mind, torture becomes acceptable as a lesser violation of a transgressor’s human rights than the shooting in the hostage hypothetical he describes.
The Professor’s case twists and turns with regard to the potential objects of officially-sanctioned torture. The persons are mostly referred to as "wrongdoers" whose rights must be overlooked in the simplistic scenarios presented in justification. However, asked elsewhere if he believed you could torture an innocent person to death if you believed the person may (or presumably may not) have information about a public threat like September 11, the Professor replied: "Yes, you could."
He made much of torture’s potential for good in the event of a hostage taking incident and uses the case of David Wood — the Australian believed to be held hostage by insurgents in Iraq — to strengthen his appeal. Wouldn’t a bit of torture be OK if it were to secure the release of Mr Wood from captivity? As Professor Sarah Joseph and Marius Smith from Monash University point out, it never occurs to Professor Bagaric that people like Wood’s captors might also have a pragmatic attitude to extreme physical abuse — wouldn’t it be OK to torture and kill Mr Woods if it were to speed up the withdrawal of the troops imposing a bloody occupation?
Former National Crime Authority boss Peter Faris QC also uses the fear of hostage-takers to make a case for torture. "A psychopathic murderer has buried a teenage girl alive and he is captured by the police. He refuses to say where she is. He taunts the police with his knowledge. Torture is acceptable to find the girl and save her life."
The example given by Mr Faris last week is part of the storyline of the Clint Eastwood film Dirty Harry. He went on to say that it would be acceptable "to pull out a fingernail of a terrorist in order to save a couple of million lives".
Former Australian military interrogator Neil James is not so sure about the reliability of the information that could be obtained by Professor Bagaric and Mr Faris’ methods. However, he complains "There is a problem that many legitimate interrogation methods are classed as torture, like forms of psychological conditioning, such as sleep deprivation for short periods of time."
Many official spokespersons are reforming their whole attitude to the rights of individuals in this "age of terrorism". Like his boss the Attorney General, AG’s Department secretary Robert Cornall believes that changes to ASIO laws are not a denial of human rights but a shift from individual to community rights:
"I see [these changes] as reflecting the extent to which we, as a society, agree that our individual rights fit within the overall interests of the Australian community as a whole in a more dangerous world."
It is a very short leap from this ruling class view of "community rights" to the position taken by those who would give official sanction to the use of torture and murder. The recently published views of the Deakin University academics have not formed in a vacuum. A disregard for human rights is being encouraged at the highest levels.
While it is true that many academics and other public figures came forth to denounce the position taken on torture by Professor Bagaric and others, it is clear that the withdrawal from previously accepted standards and international law being led by the US is having its effect on public morality in countries like Australia.