The Torturer's Dilemma: Analyzing the Logic of Torture for Information

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the arguments of many Athenian litigants, and this privilege was based on the idea that, whereas citizens might lie if they thought they could get away with it, slaves under torture could only tell the truth. The theoretical underpinnings of this system are provided by Aristotle in his Politics, while defining what a slave is: “He is by nature a slave who is capable of belonging to another (and that is why he does so belong), and who participates in reason so far as to apprehend it but not to possess it; for the animals other than man are subservient not to reason, by apprehending it, but to feelings.” 11 The juxtaposition of slave and animal is not accidental: slaves are assumed to be lacking in reason, which is why they are not free, but may be motivated to tell the truth as an animal is motivated to pull a plow, through sensation and particularly through pain. Another way of understanding this reasoning is to say that a slave, lacking reason, cannot lie while under torture – he hasn't the wit to do so (duBois, p.66). This is the view of torture described by Arrigo (2004) as the “animal instinct” model. And yet even Aristotle, no foe of slavery, recognized the possibility that torture could not guarantee truth – that the slave was not a simple mechanism to be activated by pain, but might withstand or even turn torture to his advantage. 12 The essential problem lay in the porous boundary between the slave and the citizen in a non-racialized slave society, where slaves could buy their freedom and citizens (through capture in war) could become slaves. Torture was a marker of social status, the watchman on the walls separating freedom from slavery. Slaves could be tortured, citizens could not. 13 The fact that torture was used explicitly as a means of finding the truth in a lawsuit does not change the fact that such a process depends on slaves finding themselves forced into truthfulness under circumstances where all agreed that free men might lie. And because the line between slave and citizen was permeable on both sides, such an assumption could not but be chimerical: if there is no essential (but only legal) difference between the free and the enslaved, then how could such an assumption hold? Here already we can see one of the main aspects of a system of torture for information: there must exist some fundamental difference between those on whom torture can be used, and those on whom it is assumed to be concerned. For more on the evolution of this term, see duBois (1991). 11 Politics, Book I, sec. 1245b. Text available online at http://www.perseus.tufts.edu/hopper/text? doc=Perseus:text:1999.01.0058:book%3D1:section%3D1254b . 12 Rhetoric, Book I, Chapter 15. Translation by John H. Freese. Text available online at http://en.wikisource.org/wiki/Rhetoric_(Freese)/Book_1 13 The ambiguity reflected in the writings of Aristotle on the usefulness of tortured testimony is appropriate in a nonracialized system of slavery: any free man might be made a slave, if captured in war, while slaves might become free through manumission. In such a society, where freedom is never entirely assured, torture was a way of reifying the distinction. 13
ineffective. Something must prevent (or make unlikely) the possibility that the person under torture will lie to stop the pain. Judicial Torture The use of torture was a constant under Greek and Roman rule in the West until the coming of the dark ages. From the fall of Rome until around 1215, other judicial processes replaced the reliance on the Basanos, in particular compurgation (where the defendant is 'proven' innocent if he can round up enough people to swear his innocence, the number required determined by the severity of the crime) and the trials by ordeal (where the hand of God would reveal the innocent by protecting them from harm). 14 With the rediscovery of Roman law by the northern Italian city-states around 1070 a system of legal proofs was established that regulated when a conviction might be obtained, and on the basis of what evidence – this system would eventually supplant trials by ordeal after the promulgation of the 18 th canon during the fourth Lateran Council in 1215. (Baldwin, p. 613) For capital crimes, the judge had to have a full-proof: the sworn testimony of two eye-witnesses, or a free confession from the accused. (Langbein, 1978, 2004) Because eye-witnesses were scarce (especially in cases of murder), judges came to rely more heavily on confessions, and this for the most part meant utilizing torture. This reliance on torture for confessions did not stem from any necessarily sadistic impulse on the part of the lawyers: rather it derived quite naturally from the inability to condemn a person on the basis of circumstantial evidence. 15 This latter point is most easily verified from the fact that the English system then in use, based not on the Roman law but on trial by jury, did allow for conviction through circumstantial evidence; and in this system torture was neither necessary nor often utilized. 16 Confession was seen not merely as a way of securing the truth, but also as a means of reforming the captive before execution – of getting the condemned right with God. (Ruthven, 1978) Because of this religious emphasis on the truth, this system was embedded within a constantly evolving system of regulations intended to prevent false confessions: forcing the innocent to perjure themselves would not only mean the destruction of innocent life but also the eternal damnation of the captive, who had committed the sin of lying under oath. It very quickly became apparent, however, that torture could be 14 Ruthven, 1978 15 Langbein 1978, 2004 16 It is for this reason that Blackstone could credibly argue that the rack in England was “an engine of state, not of law.” (Blackstone “Commentaries on the Laws of England” vol. iv, p. 321). Furthermore, Lowell (1898) argues that the trial by jury strongly discouraged the use of torture on a judicial basis – a tortured man could easily renounce his confession in open court, where a jury of his neighbors would be unlikely to send him back for more, “for a jury would be very differently affected by such a scene than a body of magistrates hardened by dealing constantly with criminals.” (p.292) 14
Page 1 and 2: THE FLORIDA STATE UNIVERSITY COLLEG
Page 3 and 4: This work is dedicated to my wife,
Page 5 and 6: TABLE OF CONTENTS ABSTRACT vii 1. T
Page 7 and 8: ABSTRACT In the aftermath of the Se
Page 9 and 10: judged by their effects. The deonto
Page 11 and 12: etter than chance on average, no ma
Page 13 and 14: from fiction, and also in the time
Page 15 and 16: the cases differ in how well inform
Page 17 and 18: characterization by method. Torture
Page 19: gather such evidence was strong, to
Page 23 and 24: The description which it would be n
Page 25 and 26: powerful themselves. 21 While histo
Page 27 and 28: known by the misnomer 'torture-ligh
Page 29 and 30: substitute for intelligence gatheri
Page 31 and 32: This lack of good data on torture t
Page 33 and 34: found that the procedure can cause
Page 35 and 36: captive who has faced torture, and
Page 37 and 38: state cannot credibly commit to pla
Page 39 and 40: incentive not to present as favorab
Page 41 and 42: units, those engaged in the applica
Page 43 and 44: of causal mechanisms in a very dire
Page 45 and 46: the threats they face are real, whe
Page 47 and 48: 3.1. Introduction. CHAPTER 3 THE WI
Page 49 and 50: discovered by Sir Thomas Newton and
Page 51 and 52: two, and the execution of the convi
Page 53 and 54: years preceding the outbreak at Sal
Page 55 and 56: these women - non-Church members, p
Page 57 and 58: Hubbard) and four grown and married
Page 59 and 60: innocent, and recalled that when he
Page 61 and 62: crowd was deeply and troublingly mo
Page 63 and 64: it was precisely in these terms tha
Page 65 and 66: came to an end. Misogyny was all to
Page 67 and 68: only the witch-trials that brought
Page 69 and 70: partners in their own (apparent) de
Page 71 and 72:
possibility would be to question th
Page 73 and 74:
John Bridges (whose own wife and da
Page 75 and 76:
she again broke down and named seve
Page 77 and 78:
forcing the already convicted to re
Page 79 and 80:
We can thus see Tituba's confession
Page 81 and 82:
Samuell Parris. 70 The strongest ev
Page 83 and 84:
order to purge political dissidents
Page 85 and 86:
torture as a failure based on this
Page 87 and 88:
torture - the state will apply it e
Page 89 and 90:
time, the government in Paris was c
Page 91 and 92:
for two reasons - first, because Me
Page 93 and 94:
The Soummam conference in the Summe
Page 95 and 96:
one of the primary justifications f
Page 97 and 98:
DOP in particular is instructive fo
Page 99 and 100:
us stops in the city center. These
Page 101 and 102:
one that would turn the dangers of
Page 103 and 104:
dismantling of the ZAA organization
Page 105 and 106:
found in the literature: the revela
Page 107 and 108:
In fact, the use of torture did hav
Page 109 and 110:
e.g.), by March (when the DPU had b
Page 111 and 112:
Paul Teitgen appears to have been c
Page 113 and 114:
the French public. 95 Secondly, the
Page 115 and 116:
conditions theoretically necessary
Page 117 and 118:
the reasons for holding the detaine
Page 119 and 120:
y military interrogators. (Washingt
Page 121 and 122:
fact come verbatim from a 1957 jour
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ole in the acquisition of intellige
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to those believed to have informati
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name for metanetwork analysis. 102
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other words, the CIA High Value Det
Page 131 and 132:
Padilla was accused by KSM of plott
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and an enemy of the United States,
Page 135 and 136:
alternative mechanism) by Darius Re
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York Times, 09/12/2005) Insofar as
Page 139 and 140:
these interrogations were conducted
Page 141 and 142:
al-Qaeda is structured, names of in
Page 143 and 144:
CHAPTER 6 CONCLUSION: The Misleadin
Page 145 and 146:
problem by the authorities - and ye
Page 147 and 148:
situations (France in Algeria and V
Page 149 and 150:
Jack Bauer was used as justificatio
Page 151 and 152:
Biderman, Albert D. “Effects of C
Page 153 and 154:
Crelinstein, Ronald and Alex Schmid
Page 155 and 156:
History Teacher. 30:4 (1997): pp. 4
Page 157 and 158:
International Council on Security a
Page 159 and 160:
Lewis, Neil A. “Red Cross Finds D
Page 161 and 162:
Obuchowski, Chester W. “Algeria:
Page 163 and 164:
Schiemann, John W. “Interrogation
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Barack Obama is Inviting the Next A
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United States, Department of Defens
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BIOGRAPHICAL SKETCH Patrick Armshaw
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