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May Government Ever Use Torture Two Responses

发表于 1/18/2018 14:29:35 | 显示全部楼层 |阅读模式
May Government Ever Use Torture Two Responses From German Law
     May government ever use torture? When we consult our sense of right and wrong, our answer would and should be, "certainly not!" It would be unfortunate and a sad indication of our moral state of mind were we to respond otherwise. Would our minds change, though, if we were to envision government using torture not as a means to repress citizens, but for the legitimate purpose of protecting them against harmful individuals? Even then, most of us would probably still conclude that torture remains an illegitimate act. Even good ends do not justify all means.
     Despite these initial reactions, doubts begin to arise when we turn from the general description of bad persons threatening good citizens with evil acts to more detailed and probable scenarios. All of you remember the terrorist attack, a few years ago, on the World Trade Center in New York City. Some of you will have seen the movie, The Siege, in which a U.S. Army General uses force to get the names of members of a suspected terrorist group from an Arab-American.[1] And, as some of you are aware, in 1996 the Israeli Supreme Court held that it was legal to extract information from detainees to prevent probable or imminent terrorist attacks.[2] Instead of using these real-world instances to address my topic, let me pose, instead, a hypothetical which I have carefully developed.[3] I am not using the hypothetical to shy away from real-world threats. Instead, the hypothetical is intended to test our conviction that torture should never, absolutely never, be practiced.
      This hypothetical takes place in your home city that is threatened by a terrorist armed with a bomb containing deadly chemical agents. He has hidden the bomb. After he has been tracked down and detained by the police, he states, credibly, that he has activated the timer of the bomb. The bomb will detonate in five hours and kill all of the inhabitants of your city and its suburbs. All will suffer a horrible death. Despite police pressure the terrorist refuses to disclose the bomb's location. Instead, the terrorist demands ten millon dollars, the freeing of all death row inmates, and an airplane for his getaway. In addition, he wants ten hostages, so as to ensure a successful escape. The hostages must be ten prominent citizens of your home city. The police find that they are neither able to meet the terrorist's demands nor can they evacuate the city and the surrounding area in time. Only one solution seems to remain. They want to use physical force - torture - to compel the terrorist to divulge the location of the bomb. Are they allowed to use such methods?
      What is your first reaction? I suppose most of you would say that we must not torture him, but . . . The "but" would imply that your previous strong and clear conviction, that torture can never be a legitimate means to obtain information, is no longer so strong and clear. And we are talking about torture here, there is no doubt about that. Both in the common and legal usage, the forceful extraction of a statement from some unwilling party by government agents using physical force and leading to a violation of physical integrity falls under the notion of torture.[4]It is, in fact, the prime example of torture.
      I do not intend to develop my responses on the basis of moral theory or the philosophy of law, although there are fascinating arguments to be made on both sides.[5] I intend, rather, to respond in terms of the legal sphere; based upon the German legal system.

[1] 48 Am. J. Comp. L. 661 (2000) [ 18 pages, 661 to 678 ]
WINFRIED BRUGGER is Professor of Public Law and Philosophy of Law, University of Heidelberg, Germany. 1998-99 Visiting Professor, Georgetown University Law Center. J.D. 1973, S.J.D. 1980, University of Tuebingen, Germany; LL.M. 1981, University of California at Berkeley. Talk given at the Law Schools of Georgetown University, Catholic University, Tulane University, Fordham University, and Notre Dame University during the Spring Semester 1999. The written version retains the dialogic style for reasons apparent in the text. For generous editorial help, I would like to thank Charles Abernathy and William Naugle, Georgetown University Law Center.
The movie ends with a ringing endorsement of the prohibition of any kind of torture.

[2] See The Israeli Supreme Court, sitting as High Court of Justice, Decision HCJ
804/96, Muhammad Abd al-Aziz Hamdan v. General Security Service. Date of Deci-
sion: November 14, 1996. In this decision, the Court annulled an earlier provisional
order prohibiting the use of force to extract information from the Petitioner. The
Court stated: "[We] are satisfied that the Respondent indeed possesses information
which could substantiate a substantiated suspicion that the Appellant possesses ex-
tremely vital information, the immediate procurement of which would prevent an aw-
ful disaster, would save human lives, and would prevent very serious terrorist
attacks." The Court based its decision on the defense of necessity in Art. 34 of the
Penal Code but added later on: "Our decision is directed solely at the interim injunc-
tion and does not constitute a final position regarding the questions of principle which
were put before us, and which relate to the applicability of the defense of necessity
and its scope." This unofficial translation is taken from: Legitimizing Torture. The
Israeli High Court of Justice Rulings in the Bilveise, Hamdan and Mubarak Cases. An
Annotated Sourcebook, January 1997. Available on http://www.derechos.org/human-
rights/mena/doc/hamdan.html. In a more recent decision, the same Court has clarified
the relevance of the defense of necessity. See infra n. 17.

[3] This is based on two German articles of mine which include numerous refer-
ences: "Wuerde gegen Wuerde," 16 Verwaltungsblaetter Baden-Wuerttemberg 414,
446 (1995); "Darf der Staat ausnahmsweise foltern?," 35 Der Staat 67 (1996). The
references here are kept to a minimum.

[4] See the entry "torture" in Random House Webster's Unabridged Dictionary
1999 (2nd ed. 1997): "1. The act of inflicting excruciating pain, as punishment or re-
venge, as a means of getting a confession or information, or for sheer cruelty." For the
legal usage of the term torture, see infra n. 11-14.

[5] See "Darf der Staat ausnahmsweise foltern?," supra n. 3, sections IV to VI,
discussing Kantian, Rawlsian, and utilitarian arguments. See also the "Symposium
on the Report of the Commission of Inquiry into the Methods of Investigation of the
General Security Service Regarding Hostile Terrorist Activity," in 23 Israel Law Re-
view 142-406 (1989), with articles by Alan M. Dershowitz, S.Z. Feller, Mordechai
Kremnitzer, Michael S. Moore, Sanford H. Kadish, Adrian A.S. Zuckerman, and
Itzhak Zamir.

 楼主| 发表于 1/18/2018 14:30:59 | 显示全部楼层
     If there is a constitutional duty on the part of the police to torture the terrorist in such a situation, is there a corresponding right of the endangered citizens, which requires the police to extract the information from the detained terrorist? For American lawyers, such a question will sound even more macabre than the one of constitutional duties. For German constitutionalists, however, a familiar doctrinal concept comes to mind: Schutznormtheorie. According to the Schutznormtheorie, loosely described as the transformation from duty to right, not every governmental duty benefitting an individual entails a claim of that individual to the benefit. Such duty-to-right- transformation only occurs if the following requirements are met. A legal provision must impose on the governmental actor a particular duty. This duty must not only objectively benefit private citizens, but, in the light of the legislative will or constitutional values, should also give them the benefit as a matter of right. This can especially be presupposed if the number of individuals who profit from the obligation is foreseeable, and the individual interest is strong and constitutionally valid.[1] Thus, for example, duties of administrative agencies to further wide-ranging public interests such as clean water and air typically do not confer individual rights on citizens - the number of people benefitting from the respective standards is too big, and the specification of "clean" may not be exact enough.
     The Schutznormtheorie has been developed for legislatively imposed duties on government, not for constitutional obligations. However, it can and should be applied in the constitutional area as well, given the fact that the Federal Constitutional Court, in many decisions, has developed the theory that constitutional rights should be interpreted in a way that strengthens their effectiveness.[2] Given the fact that the right to life is such an important right, and that in a situation such as the one described in our case, this right depends on effective governmental protection of a specific kind, the conclusion would be that the individuals negatively affected by the terrorist's demands have a right vis-A-vis the police, which requires the police to torture the terrorist.[3]
     I shall end with a personal remark. No German law professor in the last fifty years has ever, to my knowledge, publicly advocated the use of torture in general or even in exceptional circumstances. One finds only a few intimations in the scholarly literature that in a conflict of life or dignity versus dignity the unconditional prohibition on extracting information in Art. 1 (1) and Art. 104 (1) [2] can seem problematic. That certainly is true but it is not a sufficient discussion of the problem. The long and menacing shadow of the Third Reich with its pervasive and abhorrent use of torture has prevented an open reflection of the conflict at hand. This abysmal period in the history of Germany, however, should not be a cause to refrain from reflecting on this problem in the present, so that we are prepared for the future. Terrorist attacks such as the one described here, or similar ones,[4] or different ones,[5] have happened or will happen sooner or later, and the legal system should be prepared to deal with them effectively and justly.
      At the present time, the law's textual answer is: Fiat lex, pereat mundus - Let the law be done - no torture ever - though the world should perish. Some will view this result to be justified. Others, myself included, think the result to be unjust and unjustifiable. For these, there are two ways to proceed. One may live within the text of the law hoping that, if such a situation should come to pass, the police would use torture and the courts would follow the alternative route developed here. This way, one might feel more strongly equipped to counter the slippery slope argument. Or one may think that the legal order has to be honest, also and especially in hard cases, because it has to make clear whether it sides with the perpetrator or the lawful citizen. Then one should opt for a textual revision of the prohibitions on the use of torture, specifying the exceptions and making sure that the legal order is careful in drawing the right distinctions.

[1] . See, e.g., Hartmut Maurer, Allgemeines Verwaltungsrecht § 8 (I) (3) (13th ed.
2000) and Ferdinand Kopp & Wolf-Ruediger Schenke, Verwaltungsgerichtsordnung,
§ 42 (12), especially at n. 83-84 (11th ed. 1998).

[2] See Kommers, supra n. 9, at 48-49, 344, 363.

[3] See generally on constitutional rights as sources of positive claims to protection (without discussion of the torture question) Hans D. Jarass & Bodo Pieroth, Grundgesetz, Vorbemerkung vor Art. 1, n. 4, 8; Art. 1 n. 14; Art. 2 n. 50-52 (4th ed. 1997).

[4] . See the Israeli case, supra n. 2.

[5] In Ireland v. United Kingdom, the European Court of Human Rights (Judgment of 18 January 1978, No. 25, 2 E.H.R.R. 25, held that the so-called "five techniques" used by British police forces against suspected IRA terrorists (wall-standing, hooding, subjection to noise, deprivation of sleep, deprivation of food and drink) amounted to inhuman and degrading treatment, but not torture within the meaning of Art. 3 of the European Convention of Human Rights. In this case, the situation was not such that the exception clause proposed here would have been applicable. See No. 36 of the opinion: "The authorities therefore came to the conclusion that it was necessary to introduce a policy of detention and internment of persons suspected of serious terrorist activies but against whom sufficient evidence could not be laid in court. This policy was regarded as a temporary measure primarily aimed at breaking the influence of the IRA ...".

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