The Torturing Debate on Torture

The War on Terrorism generated a correlation between terrorism and torture. This article analyzes the basic premises of the torture debate by addressing the following issues: (1) defining torture; (2) punishing torturers; (3) justifying, excusing, or pardoning torturers; and (4) conducting legal interrogation. The article criticizes existing law on the torture debate for its lack of conceptuality and coherency, thus arguing that the articulation of the existing definition of torture has been politically motivated. The article offers a conceptual understanding of the torture phenomenon as premised on five conceptual distinctions: (1) superior versus inferior, (2) active versus passive, (3) theatricality versus secrecy, (4) fear versus security, and (5) pleasure versus suffering. This definition aims at analyzing the torture phenomenon in the abstract, out of context. Furthermore, the article suggests that torture does not bear on the constitutive elements of guilt, and that torture involves the classic types of conduct, with which we are familiar, of other domestic crimes of violence against the body or the person. Torture represents the overriding motivation of the torturers, thus reflecting the degree of dangerousness upon which they are acting. Such dangerousness is a relevant aggravating factor at the sentencing stage, which the prosecution is required to prove by a preponderance of the evidence. Moreover, the article targets five taboos that recur in the torture debate, aiming thereby to refute or uphold them. These are: (1) the illusive nature of the ticking-bomb enigma, (2) the unjustifiable grounds of the prohibition against torture, (3) the inexcusable torturers, (4) compassion toward torturers, and (5) the administrative aspects of a reasonable interrogation. Finally, the article conveys the message that the nature and basic character of the prohibition against torture can be summarized in two words: "Human Dignity.