For the last 15 years, ever since the watershed events of 9/11, terrorism has become a central topic in the discussion surrounding security. The Bush administration’s decision to wage “war on terror” has spurred much debate about the sort of practices employed to counter this phenomenon. The consequences of the “war on terror” are visible in the attempts to reshape the international legal framework, however they equally weigh into the ethical, political and social domains, making terrorism an all-encompassing issue in the contemporary political landscape.
This crucial debate of our epoch had an obvious fallout on popular culture, especially TV shows, videogames and cinema. A theme that has become predominant in the cultural appreciation of the terrorism issue is the retrieval of information through the so called “enhanced interrogation”, or in a less nuanced way: torture.
Torture is a theme that appeared in many mainstream products since 2001 and it has hardly been approached in a critical manner. However, some rare products seek to problematize the idea of its effectiveness and go as far as suggesting ethical puzzles on how such a method is deployed in the fight against terrorism. One of these products is the 2011 movie “Unthinkable” never released in the theaters.
The movie’s storyline stages an often-mentioned situation of counterterrorism that involves the moral dilemma of choosing between saving countless lives from an imminent attack on one hand and physically abusing an individual in possession of relevant information on the other. This scenario is commonly known as “the ticking bomb situation”. The ticking bomb is exactly the plot mechanism that drives the story in Unthinkable: a terrorist (Michael Sheen) has placed three nuclear devices in three major American cities and threatens to trigger them if his demands are not met. Once in captivity, the perpetrator is submitted to ineffective enhanced interrogations by the military authorities while the FBI struggles to investigate on the devices’ locations. The dire situation and the limited time call for even more exceptional methods to interrogate the uncooperative captive. Thus the military outsources the job to a shady contractor (called H) experienced in actual, brutal, medieval torture. For the entire length of the film FBI counterterrorism agent Brody (Carrie Ann Moss) and the contractor (Samuel L. Jackson) engage in a good cop/bad cop routine to make the terrorist talk. As it is evident from the setting of the movie the interrogation is a covert operation approved by the highest ranks of the military authorities. Notwithstanding the vocal protests of the FBI, the contractor is forced to cope with the terrorist’s uncooperativeness with increasingly gruesome methods of torture. The breaking point of this crescendo of brutality comes when the nuclear explosions are soon to occur and Jackson’s character threatens to harm the family of his victim, hence exacerbating the logic of “the ticking bomb scenario” by directly harming an increasing number of innocent civilians: first the wife and then the children. Throughout the movie the dialogues are animated by a direct confrontation between idealist and consequentialist philosophies and it is in these, often ambiguous, dialogues that the ethical and legal aspects of this movie become relevant.
This scene showcases the common trope of black sites and military competence even over domestic counterterrorism.
The terrorist in the film is virtually only protected by the rights to which he is entitled as a human being, in particular the prohibition of torture, a well-established norm of the international legal order considered as ius cogens. Its importance has been re-affirmed over the years also with the specifically dedicated instrument of the 1984 “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”.
The international legal framework, just like domestic (U.S.) law, is unequivocally driven towards a total ban of torture from any state activity and the impossibility to derogate from this rule. However, if the ius cogens character of this norm is indubitable, how is it then possible that torture enjoys such longevity among the repressive practices at the disposal of states?
One argument can be that the vagueness of the term allows some wiggle space in its definition. For instance, the U.S. have been able to defuse criticism by advocating alleged substantial differences between “enhanced interrogation” and torture. The typical claim is that enhanced interrogation, which involves practices such as waterboarding, strictly speaking cannot be considered torture. Another issue is the material impossibility to enforce the rule before the torture takes place, together with the difficulty for victims to denounce such treatments with sufficient evidence of the abuse. Nonetheless more generally and in the specific case of the film, the answer can come from Schmittian remarks on sovereignty and exception. For the German scholar the sovereign is “who can decide on the exception” and sovereignty casts aside the rule in a renewed constituent moment on the threshold between politics and law, where the will of the sovereign and the way in which it is enacted sets off to form new laws. What happens when a state decides to resort to torture is nothing but the will of the Sovereign being enacted and falling completely under the specificities of the State of Exception even when this eventuality is excluded by ius cogens.
In the movie this exceptionality is shown by addressing the military’s indifference to the rule of law as they are driven only by the unique circumstances and their will to carry out their orders. A brief scene of legal jousting shows the FBI agent clinging to the constitutional prohibition of torture and the jurisdiction of U.S. Criminal Courts. But then she discovers that the terrorist has been stripped of his American citizenship and taken into custody under military jurisdiction as an enemy combatant under the powers of the Military Commission Act[1]. This act curtails any appeal to humanitarian law such as the Geneva Convention and is very restrictive towards habeas corpus. Tellingly, this brief legal debate approaches the prohibition of torture under the provisions of U.S. Law, rapidly dismissing the international legal framework in conformity with the general U.S.’ stance towards international legal instruments which, more often than not, are believed to be binding only as long as they do not hinder the interests of the United States. In this sense, perhaps unwillingly, the movie showcases not only the discourse of exceptionalism that pervades (American) counterterrorism, but also the more general assumption that the U.S., in its foreign policy, is seldom bound by the same rules that apply to other states. Implicitly this hints another level of the discourse of exceptionalism, in which the U.S. perceive itself as a sort of sovereign able to contravene to the rules of the international legal order.
In this fragment the viewer is brought to see the lengths Stephen Arthur Younger’s abusers are ready to go but also, the brief legal joust between agent Brody and H’s “Handler” shows how the abuses take place in a normative vacuum and constitutional rights are set aside under a sort of martial law that strips the victim of every right. Even more interesting is how domestic counterterrorism provisions are believed to trump the Geneva Convention.
Giorgio Agamben[2] in his analysis of the state of exception carves out the crucial role of the absence of law, or anomie. This theme is highlighted also by “Unthinkable” when agent Brody discovers the condition of legal vacuum in which the military is operating.
The viewer is introduced to the regime of semi-martial law progressively enacted after the 9/11 and the military authorities’ faculty to operate outside the law. Moreover, the scene exemplifies the moral grey area in which counterterrorism operations are carried out. Precisely the exceptionality of the crisis portrayed in the movie is what allows these brutal practices: the narrative of the exceptional means has been resounding during the “war on terror” when operating outside the law became common, as was, for instance, the case with the use of extraordinary renditions.
Brody’s quarrel with her superior showcases how the FBI is also brought to bend the law under the premises of discourses of exceptionalism that set aside the constitution by invoking the existential nature of the threat.
Despite the unequivocal prohibition of torture in numerous instruments of international and domestic law across the world, torture still enjoys not only the favor of those who are ready to use it but also the favor of some vocal advocates who plead for its legalization. This is the case of American lawyer Alan Dershowitz who advanced this controversial hypothesis specifically in the context of the fight against terrorism. In the nightmarish scenario that Dershowitz envisages in “Why Terrorism Works”[3], the use of torture is dramatically similar to the one depicted by Unthinkable. When the retrieval of information is a matter of life and death in light of an imminent and existential threat, Dershowitz deems feasible/proposes to empower a judge with the possibility to approve and oversee torture. By suggesting this, Dershowitz tries to demonstrate that torture could become an integral part of the American legal system without conflicting with existing legal instruments. Dershowitz’s argument draws from the notion of security as common good which would be endangered by terrorist acts like the ones shown in “Unthinkable”. This reflection takes into account the possibility of weakening the individual rights of one dangerous individual in order to maximize the common good. The reasoning balances the human costs of torture against the safety of the thousands of citizens endangered by the terrorist. This quantitative approach to the consideration of suffering diverges slightly from the origins of utilitarian philosophy that in XVII century probed for new ways to maximize aggregated societal happiness and eliminate suffering. Dershowitz instead reverses this tenant of utilitarianism by proposing to maximize suffering on an individual to minimize it on a greater number of people. Furthermore, he applies a consequentialist approach to the decision whether or not to torture an individual; such logic evaluates possible actions only in terms of their consequences without moral or deontological variables. In addition, Dershowitz argues that the legalization of torture could be essential in regulating and monitoring a practice that is used despite its prohibition. To this point, the emphasis that Unthinkable puts on the element of time is already a good argument to criticize the pledge for the legalization of torture. In fact, the lengthy and burdensome administrative procedure that would require a judge to review documents and approve the action would defeat the purpose of torturing somebody in reason of an imminent threat.
Other issues are raised by the movie in response to this light-hearted advocacy of torture: for instance, what if the terrorist precisely because he seeks martyrdom, is prepared to endure any kind of brutal abuse? This is indeed the case in the film, where the victim, far from being innocent, endures atrocious abuse inspired by the desire of martyrdom and even finds the time to psychologically manipulate his abusers.
Lastly, what Dershowitz purposely overlooks is the scarce evidence that torture is an effective tool. Cesare Beccaria[4] already in the XIX century stressed the fact that a person subjected to abuse could release false information just to be relieved of the pain, thus stalling the process to pre-empt mass murder. This punctually happens in “Unthinkable” when the terrorist misleads the investigators to stop the interrogation and rest before it resumes. As for Beccaria, he also used a utilitarian framework, and approached the matter under the perspective of its utility in gathering evidence that could be used by a prosecutor to incriminate a suspected criminal. In Beccaria’s treatise the common-sense answer is that to prevent any more pain, the victim/suspect will confess anything even to the point of self-incriminating, which obviously would not help prosecutors discover the truth and punish the real culprit of a crime.
This last argument brings us to another issue that Dershowitz ignores: how could a judge authorize ex ante practices that could reveal themselves ineffective? In the movie, the torturer, endowed with carte blanche on the range of methods, goes as far as murdering the terrorist’s wife. From a utilitarian perspective, torturing an individual and murdering another still maximizes the benefits for the society but how could this be approved by a judge? From this perspective as long as losses are less than the benefits the utilitarian reasoning maintains its validity. So without any moral consideration, in order to save 10 people, you could keep on torturing and killing up to 9 people, 9.5 if we count children. The pivotal problem in Dershowitz’s argument is that it is at odds with the classical utilitarian literature such as Bentham or Beccaria that define in a completely different way both the concept of security and the concept of torture[5].
Bentham in fact considered “spanking a child” already an act of torture and questioned its utility only in some marginal preparatory notes to his work, Dershowitz’s interpretation is far from being this light. Moreover, what Dershowitz suggests when he advocates the legalization of torture is nothing but the opening of a path of exceptional measures that would become harsher out of inertia and could easily reach the level of abjection achieved by the Third Reich. This particular “reductio ad hitlerum” is not casual since Agamben already had warned that the problem of constitutional dictatorship that turns the exception into the rule was precisely what happened in the Weimar Republic. In that case the permanent state of exception that was declared by Hitler created a set of rules that formally, under German law, made the Holocaust legal as well.
In conclusion it seems that the eventuality of legalizing torture is not only subjected to moral reserves but also to doubts on its effectiveness and a vast array of subjective variables that would make torture an unviable solution even in a worst case scenario such as the one shown in “Unthinkable”. Lastly, the film, however ambiguously, portrays effectively all the instances of this debate and perhaps allows to problematize the issue more than other products. In doing so, Untihinkable leaves a margin ample enough to take on a critical perspective. It might be said that the ineffectiveness of torture is emphasized by the underwhelming finale: when threatened with the murder of his children the terrorist eventually reveals the location of the three devices, knowingly withholding information about a fourth, whose existence was ignored by the investigators and whose detonation is only suggested for dramatic purposes.
The grim end of the movie shifts the attention of the viewer from the violence he witnessed to the poor work of intelligence of the officials that have been asking the wrong questions to the terrorist for the entire movie, questions that even when they were answered could not prevent a nuclear disaster. This suggests an interpretation that pivots around the excessive reliance on controversial methods by state authorities. Such uncompromising methods, that eventually forsake the humane content of legal instruments, are portrayed as utterly superfluous and damaging as opposed to evidence-led investigative and intelligence work.
Notwithstanding the large international consensus behind the respect for human rights and the prohibition of torture, the issue is far from being ancient history and this is ultimately confirmed by periodical inflammatory declarations of public figures of the likes of Dershowitz and by troubling reports indicating how torture is still alive and well as a repressive method in many state security apparatuses across the world[6].
Even if the longevity of this method stands tall against any attempt to its eradication, the intrinsic value of Unthinkable is to show how the ethical stance of western democracies becomes loose when confronted with the growing need for security brought along by the narrative of the “war on terror”. If a very little known film cannot singlehandedly bring to an end the diffusion of such practices at least it can be used to locate visually compelling examples that help to defuse incendiary discourses that advocate for “more torture”.
Mario Casonato
Master en sciences politiques et relations internationales, U.L.B.
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- Section 3§ 948b Art 2(g) of the Military Commission Act of 2006 https://www.loc.gov/rr/frd/Military_Law/pdf/PL-109-366.pdf ↑
- Agamben Giorgio, State of Exception, University of Chicago Press, 2005 passim. ↑
- Dershowitz Alan, Why Terrorism Works, understanding the threat, responding to the challenge, New Haven, Yale University Press, 2003. ↑
- Beccaria Cesare, Dei Delitti e delle Pene, Universale Economica Feltrinelli, Milano, 1991, passim. ↑
- Gianelli Alessandra & Maria Pia Paternò, Tortura di Stato, le ferite della democrazia, Carocci, Milano, 2004, pp. 35-49 ↑
- Last week tonight with John Oliver, HBO, 14/06/2015 https://www.youtube.com/watch?v=zmeF2rzsZSU ↑