Power structures and governments will resort to euphemistic labelling in order to sanitize morally reprehensible or illegal behaviour — this is neither new nor surprising. A textbook example is the G. W. Bush Jr. Administration who tried to immunize inter alia waterboarding against criticism by calling it an ‘enhanced interrogation technique’. The roots of this practice can be traced back thousands of years. Thucydides branded this stasis where we engineer a shift in semantics, so that ‘words fit in with the change of events’, as an effort ‘to disguise one’s unmanly character’ (Thucydides 3: 82).
Whatever one’s opinion of the new POTUS, Donald J. Trump, we cannot, I think, accuse him of being ‘unmanly’ in the above Thucydidean sense. For he had no difficulty only days after his inauguration praising torture as a valuable interrogation tool for gathering evidence and making clear that, in his opinion, ‘torture works’. Focusing on ‘effectiveness’ enables us to leave aside, at least temporarily, the normative issues underlying torture. For Art. 2 (2) of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment (shortly abbreviated to CAT), which was signed by the United States in 1988 and ratified in 1994, unequivocally provides that ‘[n]o exceptional circumstances whatsoever […] may be invoked as a justification of torture.’ — understandably. Any such move would create a normative imbroglio, where we would have to discuss among other things the illegal use of torture in Abu Ghraib prison, i.e. in a country (Iraq) whose invasion by the US and its allies was not sanctioned by the UN Security Council and in clear violation of the UN’s founding charter.
So President Trump hits the nail on the head because he reminds us how normative arguments pointing at the inhuman or barbaric character of torture have been effectively neutralized through evidential considerations in the past. For about half-millennium (1252–1740) a sophisticated system of judicial torture laid at the heart of Continental criminal procedure, although contemporary scholars were well aware of the moral status of torture, albeit their belief in its probative value nipped every criticism in the bud. Notwithstanding the fact that torture has been used for thousands of years it was an ‘offspring of religion’, i.e. the criminal justice process, that systematically instrumentalized and developed interrogation methods in order to extract a confession. Policy considerations and the need to punish the guilty trumped any argument about their moral or legal status. The phrase ‘torture works’ can easily encapsulate the Zeitgeist of that time.
Now the question is: Does it really work? Do interrogation techniques which cause severe pain or suffering, whether physical or mental (I am using here intentionally the wording of Art. 1 CAT), elicit accurate (truth-conducive) intelligence? If the answer is a positive one, their effectiveness could put a fire-wall around them and immunize them from criticism at least on a political level, esp. when it comes to a state which when necessary defies international law especially in the post-9/11 era’.
Cesare Beccaria (1738–1794), co-initiator of the Enlightenment and father of modern criminal law theory provides us with a guide to the demythologization of torture or its alleged effectiveness. Chapter 16 of Beccaria’s most influential treatise ‘Dei delitti e delle pene’ (1764) offers an unparalleled criticism of contemporary legal thinking. In a fascinatingly modern and analytical (with hind-sight we can even say: game-theoretical) way he models the procedural phenomenon of interrogation and explains how torture leaves the guilty better off. The innocent, Beccaria writes,
either he confesses the crime which he has not committed, and is condemned, or he is acquitted, and has suffered a punishment he did not deserve. On the contrary, the person who is really guilty has the most favourable side of the question; for, if he supports the torture with firmness and resolution, he is acquitted, and has gained, having exchanged a greater punishment for a less.
But this is by far not the biggest problem we encounter as regards torture.
The real issue is, Beccaria shows, the diagnosticity of torture. Unless one is willing to use metaphysical arguments and suggest that God will empower the innocent to endure the interrogation we conclude, Beccaria suggests, that pain cannot be ‘the test of truth’. Employing torture culminates in using a method that interferes with the object of inquiry. It is not the actual events of the alleged crime that are unravelled before the eyes of the investigator but the strength ‘of the will of the accused’. For the method of proof ‘will compel the sufferer to use the shortest method of freeing himself from torment’. As a CIA operative puts it: ‘We had people who were willing to confess to anything if the [South Vietnamese] would just stop torturing them’.
Based on the (questionable) assumption that only ‘the guilty confess’ torture generates and maximizes the number of confessions and makes the criterion, which on its own terms helps us differentiate between guilty and innocent disappear. The ‘very means employed to distinguish the innocent from the guilty’ will, Beccaria explains, make the difference between them disappear, so that we get at the end information about ‘the force of the muscles and the sensibility of the nerves’ of the accused person rather than a truth-conducive statement. Torture? ‘C’est une affaire de tempérament!’, as Frederick the Great pithily announced. We face the problem with a man who uses a rod to find water. It is possible that he finds water; alas it is not the rod that led him there. The rod is not an indicator of water in the same way that a coerced confession is not an indicator of guilt.
Nowadays we have empirical evidence — i.e. scientific facts and not just alternative ones — to back Beccaria’s proto-scientific analysis, namely that the level of coerciveness of the interrogation is proportionate to the probability of eliciting a false confession. Torture leads to disclosure of information that is not reliable. The problem is not the truth-value of the propositional content of the confession — this could be either right or wrong — but rather the reliability of the interrogation process, on which the discovery of truth predicates. It’s not irrelevant that the Army Field Manual explains that strategically useful information is best obtained from prisoners who are treated humanely, and that information obtained through torture has produced faulty intelligence.
This does not mean of course that the abhorrent nature of torture should not keep us alert. We owe it to each other and to the future generations to prevent another half-Millennium of torture based on our trust in some metaphysical concept such as a deity or a ‘war on terror’. For ‘if you gaze long into an abyss, the abyss will also gaze into you’, Nietzsche has warned us. So let us remind ourselves of Beccaria’s lesson.
Kyriakos N. Kotsoglou is Senior Lecturer in Criminal Law at Liverpool Hope University.
As far as I understand the matter… The cases Trump refer to are close the group of cases discussed under the label “Retterungsfolter”.. it has nothing to do with criminal justice, it has nothing to do with finding someone guilty or unguilty/innocent for the accused act.. It´s putting someone under pressure to discover connections, paths, collaborators, networks in the sense of intelligence. Even the people who are absoulitly having zero guilt can be to their unfortune targeted… To me it seems to refer to Beccaria is as if someone would find arguments against using the kerosene in the industry in a cook book on human nutrition which states that kerosene is poisonous… Which of course doesn´t mean that new American establishment is right and well adviced… It doesn´t diminish the fact that they just blind away the normative side of the story (not everything which even works derserves to be used by the society and government).
Luka B – I fail to understand how all this relates to Beccaria’s analysis and my essay. Beccaria stressed that interrogation techniques which cause severe pain or suffering do not elicit accurate information. Unless you are willing to ignore (maybe in favour of some sort of alternative facts) the growing body of scientific evidence which shows that coerced testimony is not truth-conducive, then I cannot see how your comment can possibly make sense. NB the underlying principle that coerced intelligence is not good evidence remains valid in any context, legal or otherwise. Your comment about ‘criminal justice’ is completely beside the point. Your alleged criticism thus treats my essay uncharitably.
I also fail to understand what you mean by “Retterungsfolter”. My best guess is that what you mean is ‘Rettungsfolter’, i.e. the German pseudo-legal term for ‘ticking-time-bomb scenario’. However it has been clearly shown in the literature that this implausible and ideologically-laden scenarios rest on several questionable, to say the least, assumptions (see only Mark A. Costanzo, Ellen Gerrity, The Effects and Effectiveness of Using Torture as an Interrogation Device: Using Research to Inform the Policy Debate , 2009, p. 199-200). Eg that the investigator do have privileged access to facts and they know for sure that the detainee has the information needed; that a specific piece of evidence could be used to avert the disaster; ‘that somehow interrogators know for certain that the suspect possesses specific information about the location of the bomb’ etc. It becomes clear that the ticking-bomb scenario (Rettungsfolter) excludes every element of uncertainty and as Costanzo and Gerrity stress ‘we can find no evidence that it has ever occurred and it appears highly improbable.’ So what you are describing would be a very interesting plot device for a TV show, alas is entirely irrelevant, indeed misleading, in a legal or even jurisprudential discussion.
It is not entirely clear to me whether you assume a legal perspective, since you talk about ‘zero guilt’ (guilt is not a matter of degree; the fact-finder’s persuasion is) or someone who is ‘unguilty’ (sic). Again, my best guess is that ‘unguilty’ is a Germanism (see the German term for innocent: ‘unschuldig’), but of course this is not the time and place to solve these issues. Please keep in mind that ‘unguilty’ is colloquial and you will not come across this word in a scholarly or official document. In any case you can consult my extensive study on torture and coerced testimony here: http://www.zis-online.com/dat/artikel/2015_3_909.pdf. if you find the subject interesting.
Last but not least I will kindly ask you to consider (and hopefully respect) the fact what is being discussed here are the evidential issues related with torture. As I explicitly write in my essay ‘[f]ocusing on ‘effectiveness’ enables us to leave aside, at least temporarily, the normative issues underlying torture’.
Dr. Kyriakos N. Kotsoglou