Wednesday, September 17, 2008

History and Justification of Torture

Here's a report I made for my synagogue's social action committee, which has decided to focus on torture and human rights issues. It's a big long and formless for a blog post, but here for the historical record and so all my readers can help me improve it by telling me how wrong I am.

Introduction

Torture is the use of extreme physical or psychological violence on captives by political actors (governments, militarise, or paramilitary groups) in pursuit of political and military ends. I take it as axiomatic that this practice should be curtailed. To fight this practice, we must understand its psychological motivations, legal justification, and its systems of institutional support.

I think it's worthwhile trying to honestly understand the arguments and rationales used by people who advocate or even practice torture, difficult or impossible though this may be. Torture may be the ultimate form of dehumanization, but it is our duty to acknowledge that the practitioners of dehumanization are themselves human beings. We know that quite normal human beings are capable of evil and despicable acts when placed in an environment that encourages and supports them. Our enemy should be the institutional structures that support torture, not the torturers themselves.

Some of the questions that the issue of torture raises:

  • What is the history of torture in the Western world?
  • What is torture's relationship to government and the law?
  • Who advocates for and against torture?
  • What are the stated and real purposes of torture? Does it ever work?
  • What are the arguments for and against it?
  • What is the psychology that leads people to practice torture?
  • What is the effect of torture on the institutions that practice it?

Obviously, this document can only begin to scratch the surface of these issues.

History


Torture has its origins in the ancient world, and was in common use in imperial Rome and before (but even there its limitations and hazards were known). Christian Europe initially banned torture as antithetical to Christ's teachings, then reintroduced it as Christian theology changed its focus from the life of Jesus to his death by judicial torture. Around the 12 century the Inquisition and European state courts revived torture as a tool to force confession and as a punishment.

Torture practices may also be found in the Bible, ie in 2 Samuel 12:31
And David gathered all the people together, and went to Rabbah, and fought against it, and took it...And he brought forth the people that were therein, and put them under saws, and under harrows of iron, and under axes of iron, and made them pass through the brick-kiln: and thus did he unto all the cities of the children of Ammon. So David and all the people returned unto Jerusalem.

And Soviet dissident Vladimir Bukovsky remarked that:
Indeed, with the exception of the Black Death, torture is the oldest scourge on our planet (hence there are so many conventions against it). Every Russian czar after Peter the Great solemnly abolished torture upon being enthroned, and every time his successor had to abolish it all over again. These czars were hardly bleeding-heart liberals, but long experience in the use of these "interrogation" practices in Russia had taught them that once condoned, torture will destroy their security apparatus. They understood that torture is the professional disease of any investigative machinery.
Torture was used on and off during the rise of the modern period, gradually coming into disfavor in the modern state as a relic of monarchy. There's an interesting passage from William Blackstone, one of the most influential of English jurists:
The rack is an engine of the state, not of law.

-- William Blackstone, 1769
What Blackstone meant in the context of his times was that torture had no place in the system of common law that he was in the process ofcodifying, but was still available to the state (the monarch) as a tool for wielding power. This distinction remains with us today, as torture exists as a generally extra-legal practice of governments, wielded by the executive and military arms of government regardless of what the law says.

During the 18th and 19th century the state apparatus of torture was gradually replaced with a more rationalized system of criminology that included police, courts, and prisons. The rise of totalitarian states in the 20th century reversed this trend rather dramatically, as torture practices were employed by Nazi Germany and the USSR. These practices were also adopted by the opponents of these regimes, including the US (see below).

The era of colonialism allowed all sorts of practices that were unacceptable domestically to be employed on colonial subjects, who rarely had the legal or psychological status of full human beings. The United States ushered in the 20th century by deploying torture in its occupation of the Philippines, where it waged a savage war against indigenous political forces. ....Philippine water torture, 1901, practices that were later adopted by the Japanese and used on their POWs and occupied territories during WWII.

In the post-WW II era US, torture was driven underground as the revelations of Nazi and Japanese war crimes had soured peoples tastes for brutality. Eleanor Roosevelt led the adoption of the Universal Declaration of Human Rights in 1948, and the Geneva Conventions were also enacted and signed around this time. However, by the mid 1950s Cold War paranoia had reduced the US's commitment to internationalism and to human rights. It was around this time that the CIA was quietly researching psychological manipulation techniques that included torturous practices such as sensory deprivation. As in physics, Nazi torture psychologists were quietly imported and encouraged to continue their research, an effort known as Operation Paperclip. Nazi interrogation techniques including "drugs, electro-shock, hypnosis, and psycho-surgery" were reviewed and tested. The newly discovered LSD was tested as an interrogation technique. These projects eventually were combined under the name MK-Ultra, under Dr. Sidney Gottlieb. This effort continued for the next 20 years.

The next phase of CIA sponsored torture was the Phoenix program, which created a large network of interrogation centers in South Vietnam, which practiced assassination and brutal interrogation of suspected Viet Cong. The number of people tortured reached into the hundreds of thousands, according to Douglas Valentine [ref] -- providing an endless supply of subjects to experiment on. The Phoenix program was investigated by Congress in 1970 and found to have been in violation of the Geneva Conventions, and shut down. However, the techniques and ideology that underlied it lived on and were used in later government operations in South and Central America.

US military trainers at Guantanmo Bay were equipped with a training chart copied verbatim from a 1957 Air Force study of Chinese Communist interrogation techniques. This was the SERE Survival, Evasion, Resistance, Escape) program, used by both the CIA nad the military.

The chart also listed other techniques used by the Chinese, including “Semi-Starvation, “Exploitation of Wounds,” and Filthy, Infested Surroundings, and with their effects: “Makes Victim Dependent on Interrogator, “Weakens Mental and Physical Ability to Resist, and “Reduces Prisoner to Animal Level’ Concerns.”

The only change made in the chart presented at Guantanamo was to drop its original title: Communist Coercive Methods for Eliciting Individual Compliance.

Psychology

Although we tend to think of torture as a form of dehumanization, accounts of coercive interrogation often take on a shockingly intimate tone. Torturers understand all too well the workings of the mind of their victims, as they force them to act in a "perverse theater in which he is compelled to play the lead in a drama of his own humiliation" (QoT, p80).
Torture plumbs the recesses of human consciousness, unleashing an unfathomable capacity for cruelty as well as seductive illusions of omnipotence...Once torture begins, its perpetrators...are often swept away by dark reveries, by frenzies of potency, mastery, and control. Just as interrogators are often drawn in by an empowering sense of dominance, so their superiors, even at the highest level, can succumb to fantasies of torture as an all-powerful weapon.

-- Alfred McCoy, A Question of Torture p13
Outside of the torture chamber itself, political support for torture is generally an expression of the authoritarian mindset, which constructs an enemy that is alien, subhuman and yet posing an existential threat. As Bob Altemeyer described it in his book The Authoritarians:
Authoritarianism is something authoritarian followers and authoritarian leaders cook up between themselves. It happens when the followers submit too much to the leaders, trust them too much, and give them too much leeway to do whatever they want--which often is something undemocratic, tyrannical and brutal. In my day, authoritarian fascist and authoritarian communist dictatorships posed the biggest threats to democracies, and eventually lost to them in wars both hot and cold. But authoritarianism itself has not disappeared, and I'm going to present the case in this book that the greatest threat to American democracy today arises from a militant authoritarianism that has become a cancer upon the nation.
One point to take away from Altemeyer is that authoritarians are largely driven by fear. They are by nature fearful, and project their fears and worries on external enemies, real and imagined. The fear justifies the dehumanization:
Chronically frightened authoritarian followers, looking for someone to attack because fighting is one of the things people do when they are afraid, are particularly likely to do so when they can find a moral justification for their hostility. Despite all the things in scriptures about loving others, forgiving others, leaving punishment to God, and so on, authoritarian followers feel empowered to isolate and segregate, to humiliate, to persecute, to beat, and to kill in the middle of the night, ...if you know how highly people scored on the Dangerous World scale, and if you know how self-righteous they are, you can explain rather well the homophobia of authoritarian followers, their heavy- handedness in sentencing criminals, their prejudices against racial and ethnic minorities, why they are so mean-spirited toward those who have erred and suffered, and their readiness to join posses to ride down Communists, radicals, or whomever.
When the authoritarian mindset is allowed to fester it can lead to genocide of alien groups (Jews, Bosnian Serbs, Tutsis). In the US in the present day, the rhetoric of right-wing hate radio approaches this level of exterminationism, and sets the tone in which torture practices can be justified.

The justification of torture


We can't just close our eyes and pretend we live in a pure world.

-- Alan Dershowitz
It is extremely common to hear utilitarian or cost-benefit justifications for torture -- surely it's worth doing something horrible to a probably guilty person if by doing so it would save the lives of hundreds of innocent citizens. The reductio of this is the ticking-bomb scenario, in which a suspected terrorist is captured at the exact right time in which a bomb has been plnted but before it goes off, and only by torturing the terrorist can the explosion and loss of life be stopped. The extreme unliklihood of this scenario has not stopped it from becoming the basis of both popular entertainment and proposed law.
The Geneva Conventions are so outdated and are written so broadly that they have become a sword used by terrorists to kill civilians, rather than a shield to protect civilians from terrorists. These international laws have become part of the problem, rather than part of the solution.

-- Alan Dershowitz
More fundamentally, the infliction of violence is at the heart of what the state is. The perverse drama of torture is enacting the fundamental role of the state vs the individual. This bleak view was articulated by the ultraconservative poltical theorist Joseph de Maistre in his defense of the Spanish Inquisition, citing:
...one of the most incontestable of political axioms," i.e., "Never could great political evils, never especially could violent attacks against the body of the state, be prevented or repelled, except by means equally violent.

This is the exact argument used by conservatives today to justify torture by authoritarian regimes:
Both did tolerate limited apposition, including opposition newspapers and political parties, but both were also confronted by radical, violent opponents bent on social and political revolution. Both rulers, therefore, sometimes invoked martial law to arrest, imprison, exile, and occasionally, it was alleged, torture their opponents.

-- Jeanne Kirkpatrick, defending the Shah of Iran and Somoza:
Some critics of torture emphasize the point that the information and confessions it produces is extremely unreliable. People in unbearable pain will say anything to make it stop; their false confessions become part of the police information store and thus lead to further false arrests and confessions. But it's likely that this is no barrier to the use of torture; the point of torture and the security structure around it is often not to obtain true information and disrupt terrorists, but to enhance the power of the security appartus.

Why would the government want to do this, consciously or unconsciously? War is the health of the state and the war on terror is the health, such as it is, of the Bush/Cheney administration. Wars and states want to perpetuate themselves; inflating the strength of your enemies is an important technique for accomplishing this.

And for the cogs, big or little, who are the participants in a government torture machine, surely you must feel a need to excuse your appalling acts. Every confession elicited by torture lets you pretend that the torture was justified all along, and on into the future. And once this dynamic is in motion, the truth or falsity of confessions hardly matters at all.

Does torture work?

Does torture work? That is, does it accomplish its stated goals of protecting society against national security threats? A great many people from the military and intelligence communities say no:

The use of force, mental torture, threats, insults, or exposure to unpleasant and inhumane treatment of any kind is prohibited by law and is neither authorized nor condoned by the US Government. Experience indicates that the use of force is not necessary to gain the cooperation of sources for interrogation. Therefore, the use of force is a poor technique, as it yields unreliable results, may damage subsequent collection efforts, and can induce the source to say whatever he thinks the interrogator wants to hear.


-- Army Field Manual

Legality


No democracy, other than Israel, has ever employed torture within the law.

-- Alan Dershowitz
Torture is clearly illegal under the US Constitution and international law, but that has not interfered with its practice on massive scale by the US government since at least the Philippine colonization. However, it has never before been attempted to be legitimized until the Bush administration. In our urge to excoriate them, let's stop and give thanks to them for stripping away the rhetoric of human rights talk and exposing practices that have been ongoing for more than a century. What has gone on in the shadows now goes on under color of law and with the blessings of the people's representatives. We are now officially a torture state.

Is torture legitimized and practiced openly worse than torture practiced in a strictly underground, black-ops fashion, or better? I think I tend to prefer the earlier hypocrisy -- a sense of guilt is better than outright, flagrant immorality. Torture as a dirty secret is one thing, torture as something openly practiced and defended at the highest levels of government is something else. It moves the Overton window by making the unthinkable thinkable -- if torture is a recognized and acknowledged instrument of government, what even worse things will sprout up in the shadows?

Alan Dershowitz has proposed the idea of practicing torture under the color of law by means of torture warrants, while at the same time acknowledging that torture has been practiced extra-judicially.
Under my proposal, no torture would be permitted without a "torture warrant" being issued by a judge. An application for a torture warrant would have to be based on the absolute need to obtain immediate information in order to save lives coupled with probable cause that the suspect had such information and is unwilling to reveal it. The suspect would be given immunity from prosecution based on information elicited by the torture. The warrant would limit the torture to nonlethal means, such as sterile needles, being inserted beneath the nails to cause excruciating pain without endangering life.
Torture warrants purport to make torture a tightly controlled activity under the authority of law, but past historical experience (ie, see the Bukovsky quote above) indicates that this is an illusory goal. Torture is a fatal temptation, promising security while in fact serving to undermine the discipline, authority, and legitimacy of the police and military organizations that practice it, and eventually, the entire structure of government.

Corruption of institution


McCoy describes how the torture program in the Phillipines undermined military discipline and laid the foundations for a miltiary revolt;
Through their years of torturing priests and senior officers for Marcos, the officers slowly gained the daring to arttack marcos himself...In retrospect, psychological torture played a catlyting role in the rupture of military socialization, investing the RAM leaders with a self-image as protean cresator/destroyers.


--QoT p 
A similar process happend in France after its massive program of torture in Algeria. Military officials disappointedwith the restraints put on them by the French government attempted a military overthrow of the Algerian and French governments in 1961.

What to do?

It's a hard truth to face, but there is a substantial proportion of the electorate that is pro-torture, pro-war, pro-dehumanization. These people make up the base of the authoritarian right. The battle is over the people in the middle, the vague and formless undecideds, who need to be informed of torture practices and convinced that they are both morally wrong and ineffective. At present, up to 2/3 of the electorate say that torture is justified.

Aside from the obvious strategies of pressuring officals to conform to the established rules of law, it is possible to make a number of cases against torture to convince people who are not instinctively opposed to torture:
  • The utilitarian arguments that torture actually damages national security; and that information obtained by torture is unreliable.
  • The libertarian argument that governments are not to be trusted with such powers.
  • The moral argument that torture violates human dignity.
Given that this is a largely Christian nation, the most effective strategy might be to lend our strength to ecumenical progressive efforts such as the National Religious Campaign Against Torture.
The Christian in me knows this is wrong, but the corrections officer in me can't help but love to make a grown man piss himself.

-- Cpl. Charles Graner (guard at Abu Ghraib, convicted of abuse)
As liberal, middle-class or above Jews in America we are generally very far removed from the apparatus of state security. The situation in Israel is obviously different, and there Jews have proved themselves as capable of becoming torturers as anyone else. The Israeli security apparatus has had a practice of routine, legal, institutionalized torture, but has gradually changed its methods:


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. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand.


-- Aaron Barak, Israeli Supreme Court President, in a unanimous 1999 decision banning abuse of Palestinian prisoners



If Israel, under much more serious threats of terrorism than the US, can reform its practices, than so can the US.


References













5 comments:

Michael said...

A useful historical summary of the reintroduction of torture into European law is given by Hugh Trevor-Roper in his essay "The European Witch-Craze in the Sixteenth and Seventeenth Centuries":

"Judicial torture had been allowed, in limited cases, by Roman law; but Roman law, and with it judicial torture, had been forgotten in the Dark Ages. In the eleventh century Roman law had been rediscovered in the west, and torture soon followed it back into use. In 1252 Innocent IV, by the bull 'Ad Extirpanda,' had authorized its use against the Albigensians. By the fourteenth century it was in general use in the tribunals of the Inquisition, and it was used, particularly, in cases of witchcraft, where evidence was always difficult to find. In 1468 the Pope declared witchcraft to be 'crimen exceptum' and thereby removed, in effect, all legal limits on the application of torture in such cases."

Let us note, first, that "judicial torture" means the infliction of pain for the purpose of compelling testimony or confession of guilt. It is distinct from painful corporal or capital punishments inflicted by the sentence of a court after its determination of a defendant's guilt. While we may today regard (for example) the drawing and quartering of a traitor, or the nailing of a petty criminal's ears to the pillory, as "cruel and unusual punishments," that does not make them "judicial torture" in the proper sense of the term.

Judicial torture is a procedural aspect of Roman law. As Trevor-Roper points out, after the fall of the western Roman empire, the 'barbarian' peoples of Europe were governed under the customary laws of their tribes, e.g., of the Salic Franks, the Angles, the Saxons, the Danes, etc. These customary laws did not follow Roman procedure and did not employ torture.

Again, as Trevor-Roper notes, Roman law was rediscovered in the west during the eleventh century. The legal systems of continental Europe were soon Romanized and torture came back into use.

The exception was England, which retained its common (i.e., customary and unwritten) law. It is for this reason that Blackstone made the observation you quote, to the effect that "the rack is an engine of the state, not of law." What he meant by this was that judicial torture had no place in the procedure of courts of common law. It was employed only in "state trials," i.e., for high treason, which took place before extraordinary tribunals or prerogative courts such as the Star Chamber, that did not observe common law procedure. Such courts typically were more or less "Romanized" in that they were not adversarial but inquisitorial in procedure, and the use of torture followed from that. These characteristics made them widely feared and detested, and as a result they did not survive the English civil war. By the time Blackstone wrote, judicial torture was no longer a feature of any English criminal procedure.

You write that "Christian Europe initially banned torture as antithetical to Christ's teachings, but reintroduced it as Christian theology changed its focus from the life of Jesus to his death by judicial torture."

There are a couple of errors here. Strictly speaking, Christ was not subjected to "judicial torture" - i.e., the infliction of pain for the purpose of obtaining evidence or a confession of guilt. He was crucified as a punishment.

There is little evidence for your allegation that "Christian theology changed its focus from the life of Jesus to his death..." much less that this alleged change had anything to do with the reintroduction of torture into European legal procedure in the eleventh century.

The narrative of Christ's death and resurrection was central to Christian belief from the time that the New Testament was written. one thousand years before the eleventh century. Some representative passages are:

"For God so loved the world, that he gave his only-begotten Son, that whosoever believeth in him should not perish, but have eternal life." (John iii:16)

"But God commandeth his love toward us, in that, while we were yet sinners, Christ died for us." (Romans v:8)

"This is a faithful saying, and worthy of all acceptance, that Christ Jesus came into the world to save sinners; of whom I am chief. Howbeit for this cause I obtained mercy, that in me first Jesus Christ might shew forth all longsuffering, for a pattern to them which should hereafter believe on him to life everlasting." (I Timothy i:15-16)

"Hereby we perceive the love of God, because he laid down his life for us: and we ought to lay down our lives for the brethren." (I John xvi)

The Eucharist was from the earliest days of Christianity its principal act of worship, and not only re-enacts of the Last Supper but does so in remembrance (to quote Cranmer's translation of the Canon) that Christ did "suffer death upon the Cross for our redemption; who made there (by his one oblation of himself once offered) a full, pefect, and sufficient sacrifice, oblation, and satisfaction, for the sins of the whole world."

The Nicene creed, which received its final form at the First Council of Constantinople in 381, states that Christ

"...for us men, and for our salvation came own from heaven, And was incarnate by the Holy Ghost of the Virgin Mary, And was made man, And was crucified also for us under Pontius Pilate. He suffered and was buried, And on the third day he rose again according to the Scriptures, And ascended into heaven, And sitteth on the right hand of the Father. And he shall come again with glory to judge both the quick and dead..."

These beliefs are restated in the Quicunque vult, attributed to St. Athanasius, but probably dating from about 500 A.D.:

"Who {Christ] suffered for our salvation: descended into hell, rose again the third day from the dead..."

The reintroduction of torture into European legal procedure is a phenomenon of the eleventh century. The belief in Christ's redemptive sacrifice - the doctrine of atonement - is much more ancient, indeed is coeval with Christianity itself. It is implicit in the belief in Divine Incarnation. Your attempt to tie the use of torture to it is either ignorant or malicious.

TGGP said...

I think it is evident that torture works. It worked for the French in Algeria, and it continues to be popular because of it's effectiveness. You are right though that once granted the power agents of the state are quite likely to abuse it. One good line I heard is that CIA agents should be expected to break the rules in the hypothetical "ticking time bomb" scenario, and they should also expect to go to prison for it. If it's really a matter of a city getting nuked, a patriotic public servant would put themself on the line.

I think that the Shah was preferable to what replaced him.

mtraven said...

It worked for the French in Algeria

You have a strange definition of "worked".

and it continues to be popular because of it's effectiveness.

Evidence? Effectiveness at what, exactly?

I think that the Shah was preferable to what replaced him.

Maybe, but:

-- was he preferable to what he replaced?

-- it was his employment of authoritarian tactics, including torture, that led to the revolution and his being overthrown. Or are you taking the Moldbuggian stance that the Shah's problem was that he wasn't authoritarian enough, and should been even more ruthless?

Michael said...

It is typically ineffectual despotisms that are overthrown. Revolutions or coups are nipped in the bud by able tyrannies.

Louis XVI, for example, was in theory an absolute monarch; in practice, a shy and rather dull man whose court was a hotbed of intrigue (e.g. the "Affair of the Diamond Necklace"). He presided over a regime that was badly organized, a hotch-potch of jurisdictions that owed their existence to historical reasons that had become irrelevant to the needs of the state - but which persisted because jealously defended by entrenched place-men. An economic crisis arose, and in desperation Loius summoned the Estates-General, of which he quickly lost control. He was relatively easily deposed, and after a period of chaos and bloodshed a much more effective authoritarian (Buonaparte) emerged. Napoléon reorganized the state and even now much of the governmental structure of France bears his stamp.

Similarly, Nicholas II was in theory autocrat of all Russia, but in practice he was a retiring country gentleman with an hæmophiliac son whose doting mother vainly sought the cure of their child from a variety of 'alternative healers,' settling finally on Rasputin. Preoccupied with these domestic issues - and, again, surrounded by the rivalries and intrigues of his court - he devoted little attention to the affairs of state. After intervening in a Balkan conflict on behalf of its Serbian allies, Russia was soon embroiled in a much larger war than it expected, and it went badly. Nicholas required only a well timed push to topple, and after a few months under Kerensky's equally ineffectual rule, Russia fell at the hands of the Bolsheviks to a much more ruthless and thorough tyranny than it ever experienced under the Romanovs.

There are many, many more examples - in the middle East alone, how many complacent hereditary despotates like those of Iraq under the Hashemites, Egypt under Farouk, etc., have been replaced by Arab nationalists of the Nasser variety, or Muslim fanatics?

FDR is supposed to have said of Anastasio Somoza that he "may be a son of a bitch but he's our son of a bitch." Whether or not he actually made such a remark, it is still a useful expression of the 'realistic' view of world politics. It is not that view, but Wilsonian idealism, that has got the United States into most of its recent trouble. The world has not been made "safe for democracy" and can never be. One man, one vote, once has been the usual pattern amongst "lesser breeds without the law."

TGGP said...

Yes, torture worked in Algeria. Even the Marxist sympathisers of the liberation front admitted as much when they made Battle of Algiers (their stuff about the general strike is bogus though). It was the French at home that were disgusted by the extreme measures the military was taking and deciding to throw the pied noirs under the bus, resulting in the OAS and an attempted coup.

The Shah's problem was that he was dying of cancer and people knew about it. Bruce Bueno de Mesquita elaborates on that here.