Of all the words said and written about torture in the current debate, very few looked at the history of the birth, in 1984, of the UN's Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Much of the groundwork was done by Amnesty International. Among countries which put their shoulder to the wheel, the Scandinavians and the Dutch worked hardest. But, not far behind them, were the US and Britain. 'Those were the days,' you might say.
No one in the public debate, to my knowledge, has looked up the words of the treaty itself. They are stronger than anyone anticipated at the time. Nevertheless, the US Senate swallowed them without many dissenting votes. A key article reads that there can be no exceptions to the treaty - '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 in justification of torture'.
Not even the 'ticking bomb' argument can override this law of the world. Do we think today that our representatives in 1984 had not considered the argument that, in extremis, if the authorities felt they were holding the one man or woman who knew where the 'ticking bomb' was located, then torture was permissible? Of course they did - and they rejected it.
As Harvard professor Elaine Scarry, has noted: 'What makes the ticking bomb scenario improbable is the notion in a world where knowledge is ordinarily so imperfect, we are suddenly granted the omniscience to know that the person in front of us holds this crucial information about the bomb's whereabouts. (Why not just grant us the omniscience to know where the bomb is?)' In the first 2 1/2 years after September 11, 2001, 5,000 foreign nationals suspected of being terrorists were detained without access to counsel.
But only three of them were eventually charged with terrorism-related acts, and two of those were acquitted.
'We will be certain and correct 4,999 times that we stand in the presence of someone with the crucial data, and only get it right with the five thousandth prisoner,' Professor Scarry said. 'Will the ticking bomb still be ticking?'
Interestingly, in 1999, the Israeli Supreme Court, confronted with hard evidence of the use of torture by Israel's General Security Services, outlawed torture. Referring to the hypothetical case of a captured terrorist knowing the location of a ticking bomb about to explode at a busy intersection, it reasoned that 'this decision [not to torture] does not ease dealing with reality', but concluded that 'this is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it'.