Following up on this morning’s post: Taking stock of the Post’s story on the Senate’s new torture report, Ryan Cooper stressed that its findings were entirely predictable: “that torture during the Bush era yielded no valuable intelligence was completely obvious from the beginning, despite what Dick Cheney might have you believe. All you had to do was pay attention to people who have studied torture carefully.”
Cooper notes the work of the political scientist Darius Rejali, which has helped demonstrate one thing about torture: It works well, so long as the goal is to extract a false confession. As Rejali told Harpers in 2008: sometimes torturers are seeking true information, and “that’s what I document doesn’t work. But it seems pretty clear that torture works to generate false confessions, which serve equally as well as true confessions for many state purposes.”
Academic research backs up Rejali’s point. Work on criminal justice, for example, has found that false confessions are not only surprisingly common—they accounted for 24 percent of wrongful convictions in one study of DNA exonerations—but that they become more common “as the coerciveness of the interrogation increases.” That means that torture is especially likely to elicit false confessions, which makes it an active impediment to intelligence-gathering. As one 2009 study summarized: “Unfortunately, actions based on false information will waste time, lead in the wrong direction, put soldiers at risk, and put the lives of innocent people in jeopardy.”
Still, all this talk about torture’s ineffectiveness seems to me a distinctly secondary concern—if not a downright risky line of argument. Opposition to torture has to be based on the fact that it’s wrong, not that it’s ineffective. Otherwise, that opposition is susceptible to the arguments of figures like Alan Dershowitz, who after September 11 proposed allowing nonlethal torture by claiming: “The tragic reality is that torture sometimes works, much though many people wish it did not.” Making waterboarding more effective would not make it any less illegal. We should be wary of overemphasizing the practical nature of our objection.
For that reason, I’m sympathetic to an approach favored by the political philosopher Jeremy Waldron. In a 2005 article in the Columbia Law Review, Waldron took a historical and philosophical approach to the question of torture. He noted an important fact: In the history of Anglo-American law, opposition to torture isn’t just one principle among many. It’s part of the basic foundation of our legal system. It stands for one of our most fundamental convictions about the dignity of the person and the separation of law from mere brute force. “For there is in the heritage of Anglo-American law,” Waldron notes, “a long tradition of rejecting torture and of regarding it as alien to our jurisprudence.” This rejection is not merely based in practical concerns about torture’s effectiveness. It rests on the deeper point that torture attacks the very identity of our legal system. Of course, all law, at a certain point, depends on force, but for hundreds of years, law has resisted the reduction of subjects “into an infantile state, where the elementary demands of the body supplant almost all adult thought.” Some of the most chilling moments of the released “torture memos” have come from the government’s abandonment of this principle. Recall the 2002 Department of Justice memo advising the CIA on detainee treatment:
“You [the CIA] would like to place Zubaydah in a cramped confinement box with an insect. You have informed us that he appears to have a fear of insects. In particular, you would like to tell Zubaydah that you intend to place a stinging insect into the box with him.”
The force of Waldron’s appeal is clear if one stops to consider the logic of this advice. Imagine your deepest, most secret fears. Then imagine yourself in captivity to someone who has discovered that fear and who plans to turn it against you. This is not an unfortunate side effect, but the essential logic of “breaking” a prisoner. To change our legal system in order to accommodate torture would change something deep and fundamental at the core of how we think about law.
This is why the lens of history and philosophy is so important. It not only moves us away from far-fetched arguments about ticking time-bombs; it shows us what an extraordinary choice we face. The lawyers and commentators who think we can “carve out” a small space for torture while leaving the rest of our legal system intact fail to grasp the gravity of what they’re proposing. The issue is not whether small exceptions can be introduced into the law— “torture lite,” as some call it, aimed at preventing imminent destruction. It’s whether we will abandon a core tenet of how we think about the relationship between law and violence, and about the place of individuals within the legal system. The prohibition on torture, Waldron reminds us, is “an archetype” of our legal tradition. If we change that prohibition, we should at least do so openly—not through secret memoranda or (as seems all too likely) through inaction in the face of these new revelations about CIA practices. We should be honest, at least, about the break we’re making with our predecessors.