Torture: Considering a Framework for Limiting Use
Abu Graib, Guantanamo, the War on Terror—the debate over the use of torture is still very much alive in the world today. The debate can be divided into two questions: (1) whether there should be an actual absolute ban where torture is never allowed either ethically or legally, and (2) if torture should be allowed under certain circumstances what form of regulation is best able to ensure that it is used only in those most limited circumstances. Currently, there is an absolute ban in place, yet world leaders, applying a case-by-case utilitarian approach, in fact permit the use of torture in what they deem to be extreme circumstances, despite the ‘absolute ban.’
Assuming, as a result, that torture will never be eliminated completely and that it is, in fact, desirable in certain situations, the question becomes: what form of regulation most appropriately limits its use? The current system and any other system that uses a purported absolute ban where exceptions and violations are nonetheless authorized at the highest levels does not represent the most effective regulation because such systems force governments to break the law. Such systems thereby promote secrecy and a concomitant lack of accountability—two things antithetical to democracy, which requires an informed electorate. Instead, a system that promotes those values and erects strict procedural safeguards represents the most appropriate way to allow torture in the limited circumstances in which it may lead to the better utilitarian outcome. Torture Warrants, if established appropriately, may represent such a system.
Civil Rights and Discrimination | Constitutional Law | Criminal Law | Criminal Procedure | Human Rights Law | International Law
Date of this Version
Scott J. Goldberg, "Torture: Considering a Framework for Limiting Use" (February 10, 2006). bepress Legal Series. bepress Legal Series.Working Paper 946.