The French have a plan. It succeeds tactically, but fails strategically.
To understand why, come to a rare showing of this film.
—Flyer advertising the movie The Battle of Algiers, from
the Directorate for Special Operations and Low
Intensity Conflict, the Pentagon, September 20031
In 1972, an RUC policeman threatened a prisoner with a technique that had “never failed yet.” His magic technique was to set fire to a twig, blow it out, and stick it up the prisoner’s nostrils five or six times. However, the prisoner said nothing under this torture and was released shortly thereafter.2 But the policeman was unlikely to be daunted by this failure. As the previous chapters have suggested, torturers persist in using techniques even in the face of repeated failure. Because the policeman firmly believed the technique never failed, he was just as likely to try using the same trick the next day on another prisoner.
When officers resort to playing Metallica and lighting twigs, when the Pentagon watches Marxist-nationalist movies to understand how torture and terrorism work—one has to ask: why is it that governments never seem to learn or, at least, remember past failures? Why do many governments keep torturing for information? Or as Chris Mackey, the U.S. interrogator in Afghanistan, asks, “If coercion doesn’t work, why would the agency [CIA] go to the trouble?”3
In these final chapters, I consider why we do not learn from past experience when it comes to torture. In this chapter, I consider failures in institutional learning: how knowledge does not accumulate and how it is neglected when it does. Next, I consider if institutions would learn better if governments legally regulated torture and subjected it to routine evaluation. But fortunately or unfortunately, the same factors that inhibit institutional learning about torture also make its public supervision impossibly difficult.
The best way to learn is to care for our memories of the past properly. As Alan Dershowitz rightly says in his introduction to the army report on the My Lai massacre in Vietnam, “We neither taught nor learned a lesson from the disaster of My Lai, and those who do not understand the lessons of the past are destined to repeat them.”4 In the following chapter, I consider how memories of the twentieth century powerfully shape our understanding of torture. These memories are often misleading, leading to false claims about modern torture’s efficacy, as well as about its historical origins.
Several factors inhibit the accumulation of knowledge about torture: the informal way torture techniques are taught, the narrow professionalism of torturers, the competitiveness among interrogators, and operational flexibility in counter-insurgency warfare.
Militaries do learn from their mistakes in battle. They assess tactical and strategic mistakes, and then teach these lessons to officers and soldiers in the field. One would think similar learning would take place about torture, but it does not. Soldiers learn about torture not in schools, but through backroom apprenticeships. Backroom apprenticeship proves to be a very powerful method of education, gradually transforming torture techniques in the course of a century. This method of transmission is difficult to detect, a quality torturers value in an age of increased international scrutiny of human rights abuses. By the same token, torturers do not have the opportunity to evaluate their procedures objectively because so much training goes on in the dark. Torture is a craft that combines hundreds of discrete instruments and procedures, each with its own champions. Torturers learn each technique by imitation, custom, rumor, and accident. It is not surprising, then, that policemen attach magical properties to techniques even in the face of a record of failure (“a stick up the nose always works”) and soldiers describe their fantasies as fact (“the Gestapo really knew how to torture”).
Competitiveness also inhibits the accumulation of knowledge. Torturers do not give away their trade secrets to their rival interrogators. They resist when superiors begin to evaluate their alleged successes. Being narrow professionals, they demand autonomy to get the job done right.
Military promotions focus on battlefield successes with ordinary troops. Junior officers have little incentive to learn about interrogation, much less excel at it. This is a job usually assigned to specialized agencies. So when officers need information urgently, they adopt haphazard and juvenile approaches to interrogation.5
Counterinsurgency warfare also fragments knowledge. As units are more autonomous in this style of warfare, information is not pooled. Here, a French captain in Algeria pacifies a zone without torture, using informers and public cooperation combined with selective violence.6 There, a French captain claims he had to torture. Under these conditions, soldiers easily misperceive what the group norm is and act accordingly.
Often the immediate and the local trump previous training and comprehensive analysis. Too often soldiers and policemen seem to engage in a version of the “drunkard’s search.” The drunkard staggers around under the spotlight looking hopelessly for his lost car keys. He should methodically search the dark path from the bar, but that is beyond his condition. He is drawn to the spotlight, the least likely place, because it is the only place he can search in his condition.
So, too, soldiers and policemen evaluate options during crises in the dark; they are drawn to the bright lights, to the dramatic but often fictional stories of torture’s success. They ignore army manuals that caution against torture or well-grounded studies of what works in policing. When torture does not prove to be the key to success, they grumble that they would have succeeded had their organization been more supportive and given them more authority and had officers acted promptly on the good intelligence they delivered. Like the drunkard, they seem unaware that their failure followed from their muddled thinking.
If torture training was highly centralized, as critics like Noam Chomsky believe, institutions might know more about torture. For example, the CIA operatives who entered the information in the Phoenix Program database also recorded what they considered to be a baseline for accurate information. This allows one to determine how badly the program functioned by its own standards. Similarly, eventually scholars of the Franco-Algerian War will analyze Teitgin’s twenty-four thousand arrest warrants, warrants that almost inevitably led to torture. They will compare what police thought they were doing against the previous history of those individuals.
In these cases, governments impeded research by classifying documents. Sadly, examples like the Phoenix Program, Teitgin’s records, or the British arrest records for 1971–72 are few and normally see the light of public reason only after decades of secrecy. Full access to the French Algerian archives will probably take several more decades. And governments rarely assess torture programs publicly. The British government’s report on interrogation in Northern Ireland in 1972 is a rare exception. Misleading as it is, the Parker Commission did try to measure the program’s effectiveness in something other than generalities. Even here, though, researchers had to assess official claims without access to the data.
There may be secret, thorough reports of torture’s effectiveness, but historians have yet to uncover them for any government. Those who believe in torture’s effectiveness seem to need no proof and prefer to leave no reports. The secret documents historians do find, for example, the CIA’s Kubark and Human Resources Exploitation Training manuals, suggest that government researchers do not do archival research to assess torture’s effectiveness; instead they footnote public research. The blind, thus, lead the blind: scholars cannot access classified documents, and governments read scholars instead of analyzing their own data.
Governments also pillory human rights organizations for any mistake in their research, impugning the organization’s credibility as a whole. Most organizations are understaffed, and lawyers are poor social scientists. Some hold that torture works, stipulating as truth what they cannot research, but claim it is irrelevant. For example, Manfred Nowak, the current UN special rapporteur on torture, holds that torture works, but values are more important. Common sense tells us, he says, that governments can verify intelligence information gathered under torture.7 Values no doubt have their place, but making a virtue of one’s ignorance has a great price. Government officials prefer a division of labor in which critics grow indignant and talk while they portray themselves as responsible people who know and do.
Occasionally some government officials leak information and some researchers find ways to get around government secrecy by meticulously reconstructing events or through statistically sophisticated indirect measurements. This evidence has long suggested that torture does not work as apologists claim, but the material has been scattered across several specialized disciplines. Policy debates have often passed over these studies, focusing instead on personal testimonials and historical cases. “The Battle of Algiers” and “the Gestapo” do not stand for careful studies of torture, weighing its merits against other police methods based on archival materials. They stand for memories and stories. Few people, for example, remember the important role Godard’s bleus played in the Battle of Algiers. They do not have big parts in the movie.
Violence is a complex phenomenon, not particularly amenable to truisms. Violence does not always breed more violence; sometimes it leads to less. To grasp what does or does not work, one has to descend into the details. Suppose in such and such a case torture failed. Did it fail because of its features or because any method of gathering information would have failed? In the Battle of Algiers, informants succeeded far more than torturers did in gaining the critical information, so the problem lies with torture. But one is fortunate so much information exists about the battle.
Such comparative information is not always available, and cases often lack clear baselines, making it difficult to judge what the cause of failure was. More commonly, one person lists successful counterinsurgency campaigns that used torture, while another lists a string of failed campaigns, a list that is usually considerably longer.8 Rarely do debaters contend using identical examples.
If governments gave more access to police and military archives, scholars would know more about how torture for information worked in Vietnam, Israel, Northern Ireland, and other conflicts. Studying modern torture would be like studying classical torture. By studying ancient documents similar to torture warrants, historians have documented the rates of coerced confession in early modern France, and they know that torture led to few confessions, true or false. Why not regulate modern torture for information and find out how well it works?
This is the best argument for getting legal warrants for torture. Alan Dershowitz first proposed the notion of torture warrants, but he has since been distracted by his argument against modern political hypocrisy.9 Like other apologists, Dershowitz seems driven by a deep impatience with those who look the other way as someone else does the necessary dirty deed that works.10 He seems to hold the view that torture is a necessarily evil, a tragic choice, the least bad choice among horrible choices, or a not unacceptable option considering the circumstances.11 And he has spent much time vigorously defending this delicate wordsmithing from the widespread criticism he has garnered.12
If one wants to chastise the hypocrisy of others as one argues for torture warrants, then one has to prove that torture works.13 But, logically, defending torture warrants does not depend on praising one’s own moral clear-sightedness or defending the notion that torture works. Some governments will torture because they believe torture works better than anything else for getting information in some circumstances. If torture really doesn’t work, then studying the torture warrant archives would show that. Warrants would require police to state their intent in torture. By stripping the secrecy from government torture, one can assess properly rates of failure. If it does not work, governments will stop torturing.
Torture warrants will also help answer another outstanding research question: how does torture affect interrogators? Torturers are hard to locate, dangerous to find, and even more difficult to interview. Researchers have interviewed small groups, but not large populations. They have also studied police working undercover as criminals; this work, though nowhere near as extreme, appears to have similar psychological and social consequences as torturing.14 But creating torture warrants would necessarily require creating a large class of professionals who tortured, and this would be a unique opportunity to learn what torture does to interrogators directly.
So far, researchers know that torture traumatizes perpetrators “by inducing toxic levels of guilt and shame.”15 Why some have these feelings and others not is unclear, but some cases indicate that one’s vulnerability is not within one’s conscious control.
Frantz Fanon, for example, treated French torturers among his patients during the Algerian war. One policeman suffered from nightmares, extreme irritability, and intolerance to noise. Working up to ten hours each day torturing suspects, he grew impatient with his children, striking even his baby of twenty months with “unaccustomed savagery.” He consulted a doctor only after he set upon torturing his wife one night. He knew quite well he suffered from spillover effects from his job, but he did not want to cease torturing, so he asked Fanon to show him how to continue torturing without the unfortunate side-effects.16 In another case, a policeman was generally in good spirits during sessions until one day, Fanon found him trembling, sweating, and overcome with anxiety on the sidewalk. He had encountered one of his old victims in the hospital hallway. The policeman developed depression while orderlies found the victim in the hospital bathroom trying to commit suicide.17
Researchers speculate that when torturers act consistently with their moral or religious beliefs, they may escape torture unscathed. The Israeli interrogators who described their GSS days “as the best years of their life” and the Brazilian torturers who dehumanized their victims may never suffer from post-traumatic stress disorder (PTSD).18 But the French cases suggest that whether they do or not is not something in their conscious control. A torturer’s work apparently never ends; memories of applying extreme pain to others tick like a time bomb.
Setting aside PTSD, torturers are more vulnerable to job burnout than other violence workers. In a comparison of Brazilian torturers and killers, researchers found that the least burned out were those who facilitated violence, but did not actually perform it.19 Rank-and-file cops were more burned out than those who simply ordered the violence, and torturers were more exhausted than killers. Putting a bullet in the head appears to be an easier occupation than questioning subjects daily.20 Generally, torturers suffered from insomnia, hypersensitivity, nervousness, emotional problems, alcoholism, and potential suicidal behavior.21 Some had resigned and others had burned out. Keeping their work lives secret deprived them of the support of friends and family, while their supervisors, who did none of the violence, drew richly on their support network. While the supervisors took pride in their work, the real torturers said the military brass had betrayed them and hung them out to twist in the wind. “We are society’s toilet paper.”22
Psychological studies of Greek torturers found a similar spread of disorders. Some torturers did not report stress or burnout.23 Others had serious adjustment problems, including depression, anxiety, and stress, when they left the military context that supported their activities.24 They were burdened by their secret history, fearing the hostility and isolation they experienced when they revealed their double life. One had constant nightmares, would wake up screaming from his sleep, and often wept in public, crying on one occasion, “What am I, a beast?”25 One displayed maladaptive social behavior even after years of civilian life; indeed, he was accused of organizing the theft of funds at the company where he was employed.26
Anecdotal evidence from other conflicts suggests that other interrogators feel deeply betrayed. The French Paras never forgave Massu and the generals who sacrificed them.27 Even today, psychologists working with DOP soldiers describe them as “spiritually wounded men, often ravaged by the weight of their guilt and shame.”28 As one Para who tortured put it recently, he will carry “the stain with him for the rest of his life”; others become “sociopaths with little regard for human life.”29 The Chilean air force and navy did not accept those “stained” (manchado) with torture back into the ranks because they judged these men lacked discipline and ethical values.30 Uruguayan torturers were depressed and isolated once they left the occupational networks that supported their work.31
To be sure, many soldiers who do not torture also feel betrayed after wars, and the indifference to those who practice violence is probably quite old. As the weary voice of Ecclesiastes warned centuries ago: “I saw all the oppressions that are practiced under the sun. And behold, the tears of the oppressed, and they had no one to comfort them! On the side of their oppressors there was power, and there was no one to comfort them” (Eccles. 4:1). Presumably if one aims to regulate torture, one would also have to learn how to provide comfort and support to those doing society’s dirty work. After wars, governments assist veterans associations and citizens organize ways to help veterans ease back into civilian life.
But as far as I know, no one, not even the philosophers, lawyers, and journalists who have justified torture in the name of national security, have ever organized, much less advocated, a Society for the Reintegration of Torturers. In these actions, even apologists reveal how much they share society’s judgment that he who tortures is far beyond the pale, in the same company as cannibals. Although torturers may have performed something necessary and even justified at the time, they have also performed something monstrous, become walking abominations, and no integration can remove this stain. No one on the face of the planet wants to share their company, not even those who urged them forward.32 Torture apologists accept the moral and psychological destruction of torturers as a necessity in crises, but they hardly think about them afterward. No doubt, many a soldier who has been urged to torture would find George Orwell’s remarks about war all too apt: “One of the most horrible features of war is that all the war-propaganda, all the screaming and lies and hatred, comes invariably from people who are not fighting. . . . It is the same in all wars; the soldiers do the fighting, the journalists do the shouting, and no true patriot ever gets near a front-line trench.”33
Lastly, social scientists have an even poorer understanding of how torture affects secondary bystanders. Establishing a class of professional torturers would allow social scientists to examine how torture affects their families and assistants. Fanon’s study of a torturer’s daughter indicated that she developed severe anxieties by her twenties. She spoke of her father’s death with a lightheartedness that masked insensitivity to others.34 Similarly, American advisers working in Turkey report that secretaries became traumatized typing up interrogation transcripts.35 In these cases, torture is the gift that keeps on giving, shifting its effects from person to family and friends, from generation to generation. In this respect, torture appears to resemble some forms of domestic violence such as spousal battery and incest. But whether the cases above are common is anyone’s guess.
The evidence so far is that torture does not work and often destroys interrogators and their families, but perhaps we are mistaken in our assessment. It would be hard to oppose torture warrants that would clearly confirm or reject these longstanding suspicions. Still, it might help to review what scholars know about the history of regulating torture before embracing the modest proposal of legalized torture warrants.
While it is not a large sample, the record indicates that governments regulate torture poorly. Once governments have the right to torture, officials have little professional incentive to check results. Professional torturers colonize bureaucratic, judicial, and legislative bodies designated to supervise them, making oversight difficult. And the populations liable to be tortured, however narrowly defined at first, grow over time.36
The Greeks and the Romans regulated torture by attaching it to the person, not the act. Rather than justify torture on the grounds that a crime was in progress, they justified torture on the notion that there were two kinds of people, one of which could never be tortured regardless of the crime. Slaves could be tortured, but citizens could not. The Romans extended the class that could be tortured to lower-end citizens, the humiliores, and in time, the emperors did not care about anyone’s civic immunity.
The ancient regulation of torture involved a fairly strict belief in civic immunity, and through it, Greeks and Romans successfully regulated torture without putting their democratic life at risk for decades, even centuries. Moderns generally do not share the chauvinistic assumptions that Greek and Roman citizens had about their own superiority. Torture apologists would justify torture of citizens if necessity required it. It is unlikely they would embrace the Greek model of torture; they are more concerned about acts like terrorism, not civic immunity.
Many authoritarian systems regarded torture as a suitable technique to gather information about criminal acts. Torture was legal and documented, but government officials did not generally ask whether torture produced accurate outcomes; they knew it. An interesting exception was witch hunting during the Spanish Inquisition. Inquisitors disciplined colleagues who tortured looking for witches, arguing there was little evidence of the existence of witches, and most confessions to pacts with the Devil were delusions. For example, Alonso de Salazar Frias, the Navarrese Inquisitor and a careful, scrupulous lawyer, reviewed thousands of witchcraft cases after an upsurge of witch executions on the French frontier between 1609 and 1610. He concluded, “I have not found the slightest evidence from which to infer that a single act of witchcraft has really occurred.”37
Strongly centralized legal systems, like the Spanish and the English, were far better at checking coerced confessions for witchcraft than those that left local officials less supervised, as in France, Scotland, and the Spanish Netherlands.38 Central authorities suspected the personal motives of regional elites who hunted witches. They were far less restrained when it came to secret fifth columns, Jesuits (in England), and secret Judaism and Islam (in Spain), and they knew how to use paranoia to mobilize a population to support the state. Spanish Inquisitors may sound almost like social scientists when they came to witches, but they did not think twice in the hunt for heretics.
Historians have recorded 81 cases of official torture in England between 1540 and 1604, and 785 official cases in France between 1500 and mid-1700s.39 So Dershowitz claims that “there was far more torture in Medieval France than England because in France the practice was left to the discretion of local officials, whereas in England it required an extraordinary warrant, which was rarely granted.”40 Dershowitz hypothesizes that torture in “a formal, visible, accountable and centralized system is somewhat easier to control than an ad hoc, off-the-books, and under-the-radar-screen nonsystem.”41
On the contrary, a strongly centralized system of legally regulated torture, which did not leave things to local officials, never held back the Spanish state. And torture would have been rare in the English system in any case, and would always have required considerable justification, whether there were warrants or not. After the 1140s, the English state gave greater responsibility to juries in determining outcomes, had no place for a state prosecutor, gave the judge a different role, and had broader rules of evidence. Circumstantial evidence could pile up until a jury found it convincing, whereas a continental judge could not find the defendant guilty until the prosecutorial system, including torture, played out to the end. Whereas on the Continent legally regulated torture made the resort to it common, “torture did not have a place in the law of England after 1166,” writes Edward Peters, the noted expert on medieval torture. “The reforms of Henry II gave a procedure to the law of England that eliminated the use of torture in the very centuries in which continental legal reforms were drawing closer and closer to it.”42
The emergence of our common-law system, not torture warrants, proved to be the bulwark against torture, leading to its steady elimination over time. As John Langbein, the modern expert on English torture, remarks, “The jury standard of proof gave England no cause to torture,” and England “also developed no institutions to conduct torture.”43 The process complemented the procedures: “The English had no one to operate the torture chamber that they did not need.” Contrary to Dershowitz, who selectively cites Langbein’s research, Langbein writes, “What the English did not do was to regularize the use of torture in their criminal proceedings.”44
Democratic oversight proved far more helpless in holding torturers accountable than a common-law system with its jury system of proof. The republican Italian city-states, like the Spanish and French monarchies, had a continental legal system that authorized torture. These democrats limited torture to a narrower range of crimes than the larger monarchies.45 They discovered that, even in peacetime nonemergency conditions, executive officers used torture against innocent, decent citizens. Against certain grave accusations, there was no immunity. In the end, the podestas who tortured took over the republics.
Authoritarian states that legally regulated torture for information, not confession, also proved to be poor at it. In 1937, for example, the Gestapo agreed with the Justice Ministry to regulate procedures for “sharpened interrogation.” Regulations required authorizations and even a form, of which a copy has survived. As torture was not a secret, one might expect to find documentary records, given how meticulously German bureaucrats worked. Records of the Gestapo at Würtzburg, for example, show that officers documented public accusations and investigated them meticulously, finding many false ones. They also conducted interrogations, including, one assumes, sharpened ones. But if officers filled out forms for torture, there is no record of it there or, for that matter, anywhere else in Europe. And there is little evidence that officers limited torture interrogations to the classes of suspects Gestapo chief Müller stated could be tortured.
Democracies do not seem to have done a better job regulating torture either for information or for confession. In the Battle of Algiers, Teitgin’s records show the alarming rate at which arrests speeded up as the battle proceeded until they peaked at four thousand a month for several months. Judges, doctors, and police prefects would not or could not hold back the demand from the Paras for arrests that led to torture. This is evidence enough that civil servants cannot exercise selective control once they have licensed armed men to exercise unlimited power over individuals. Successful torture turned out to be a wholesale operation, not a retail business.
The appeal of legalizing torture, like legalizing abortion, is that it makes rogue operations rare. Governments will “reduce and limit the amount of torture,”46 and scholars could learn whether it really works. Cases like these suggest that legalizing torture makes rogue operations inevitable, and one is likely to learn even less. A professional torturer from Honduras, for example, could not understand why his CIA handlers insisted on his obtaining legal warrants before he interrogated and tortured prisoners. “Guerillas don’t wait there with a pen to sign a judicial order. Our commander ordered us to kill them. We hid people from the Americans, interrogated them, then gave them to a death squad to kill.”47
“Want to torture? Get a warrant,” may sound like wise advice.48 To interrogators, it sounds like a quaint practice to be avoided whenever possible. The Gestapo, which came closest to routinizing torture for information with paperwork, did not bother, and everywhere torturers push the institutionally prescribed limits on physical techniques. No matter how lax the rules governing torture are, a professional always insists that if he had greater power to arrest and cause pain, he would have gotten results sooner. Reading decrypted computer files, as in the Murad case, would not be on his agenda.
The limited evidence available suggests an additional point: torture for information appears more difficult to regulate than torture for confession. While both appear to lead down the slippery slope, the slope is steeper and slicker when torturers are seeking prospective information rather than confessions for crimes that already occurred.
Slippery slope arguments are contentious, and one must carefully distinguish between empirical and logical versions.49 Logical versions are notorious fallacies. Typically, they hold that individuals slide down the slope because they cannot distinguish logically between a bad deed, the next worse deed, and the next worse until finally they slide into the abyss. In fact, most people understand that small shifts can accumulate to have terrible outcomes. And most police and soldiers can distinguish between approved and unapproved techniques, or coercive and uncoerced interrogation.
Nevertheless, police and soldiers do cross these lines, and the question is why. So far as analysts can tell, it is not because organizations recruit sadists to be torturers. What appears to happen is that ordinary individuals move from minor violations to the abyss through errors in judgment. Three factors cause these errors: ambiguous background context, desire to agree with the group, and confused self-understandings.
In the case of torture regulation, there appear to be at least three different slippery slopes. First, torturers go beyond the specified suspects to torture individuals not normally tortured. Second, torturers go beyond the approved techniques to a broader range of brutalities. Third, torturers break away from the bureaucratic oversight, creating their own semiautonomous organizations.
Regulated torture seems to increase in scope, incorporating ever more individuals (humiliores, not just slaves; good citizens, not just those of bad reputation; witnesses and relatives, not just suspects). The context in which torture occurs seems to play an important role in determining how sharp the slope is.
War conditions, for example, blur boundaries for soldiers; human beings do not come with labels “friend” and “enemy.” Safety dictates assuming they are “enemy,” and not surprisingly, the scope of torture for information in war rapidly expands, incorporating large numbers of innocents.
By contrast, most regulated confessional torture occurred against a stable background of peacetime chauvinism and racism, and authorities had an easier time keeping the scope of torture limited. Greeks and Romans knew who were citizens and who were slaves. In the Italian city-states, everyone knew who the families of bad reputation were; they were sometimes listed by name in the law books. Conditions of public hysteria made it more difficult to control torture. For example, in the great European witch hunts, local authorities arrested more individuals on charges of witchcraft that even Spanish Inquisitors would allow. During public paranoia, as in war, safety also requires assuming individuals are enemies first.
Torture slopes toward greater brutality, but this slope varies. In confessional torture, torturers can take their time, slowly terrifying their victims. They have made the accusation; all that is required is the admission.
In torture for information, one is trying to prevent an imminent attack or save a threatened life. Time matters, and interrogators reach for what is rumored to have worked before regardless of whether it is approved. They will push the envelope wherever they can, trying to match the individual’s pain threshold before it slips out of reach. The slope toward greater brutality is far sharper, particularly in the first forty-eight hours, when the information might be most valid. Anyone who thinks interrogators will obediently limit themselves to sterilized needles under the prisoner’s nails displays a staggering naïveté about the dynamics of torture. Dershowitz, in particular, favors this showy suggestion,50 but I know of no example of torture in the twentieth century, in peacetime or wartime, in which needles alone played a role in eliciting information, accurate or otherwise. It always takes a lot more.
The Catholic Church’s Inquisitors, uniquely among torturers in Europe, became a power unto themselves. Once the pope gave them the power to absolve each other of their sins, the Inquisitors no longer needed secular torturers and often acted without approval of local bishops.51 But beyond this, torturers in European confessional systems did not seek more power for themselves as a professional class. Some secular authorities, of course, used torturers to reinforce their own authority. In Italian city-states, podestas shored up their executive power this way, leading to the end of republicanism. And regional authorities in France, Scotland, and Spain expressed their autonomy from the state by exercising torture.
But where states have regulated torture for information, units that tortured commonly became political forces in their own right. Such factors as deskilling, competitive brutality, and narrow professionalism led to parallel systems of administration, creating states within states. This phenomenon occurred whether the practice was approved explicitly (the Gestapo, the French in Algeria) or tacitly (the Brazilian military, American counterinsurgency in Central America).
Torture in the context of counterinsurgency may be an especially toxic combination. Counterinsurgency units take pride in their ability to beat out competitive units, garner more praise from central authorities, and win more field autonomy for operations, especially in forward bases. Once they torture, they rapidly slide toward disaster.
Torture for information, then, has a steeper slope than confessional torture because it often occurs in fuzzy contexts, where groups are relatively autonomous, and when time is short. Regulating torture under these conditions is unlikely. English torture warrants, by contrast, were for judicial confessions, and it is not surprising that slope was less severe.
This bears directly on using torture warrants, since these warrants are to be used exclusively for gathering information.52 Indeed, even some who endorse selective torture in emergencies understand that regulating torture for information is a fool’s dream. Mark Bowden, for example, holds that “when the ban is lifted, there is no restraining lazy, incompetent or sadistic interrogators.”53 The results at Abu Ghraib were inevitable in this respect. “When a prison, an army, or a government tacitly approves coercive measures as a matter of course, widespread and indefensible human-rights abuses become inevitable.” This, he argues “is what happened in Israel, where a newly introduced regime of officially sanctioned ‘aggressive interrogation’ quickly deteriorated into a system of routine physical abuse.”54
By contrast, Dershowitz maintains that his proposal of torture warrants would “maximize civil liberties”55 and that, if it was in place, it would have prevented torture at Abu Ghraib,56 Occasionally he also claims to find yet another example of torture working in the War on Terror.57 But no one should be too concerned about these claims. On empirical matters pertaining to torture, Dershowitz’s record has been worse than poor, and his work is typical in that respect. Indeed, whenever apologists claim empirical insight, everyone should simply ask them repeatedly for the evidence, check the sources, and then double-check the claim with other sources. Nothing apologists have advanced so far has withstood the light of day.
Regulating torture will be more difficult in the twenty-first century. It is unlikely torturers will forget all the clean practices that helped them evade public scrutiny in this century. Indeed, governments may still prefer these to reduce public concern about torture.58 Catching rule violations will be harder whether torture is legal and expected or whether it is forbidden.
Bowden, for example, believes that torture should remain illegal, but soldiers should do it when it is morally necessary and then submit to public trial. If the soldier was mistaken, he should be punished. If he was right, courts should let him go. In effect, Bowden proposes a balance of torture and risk. You might be right, but if you are wrong, your career is over. This would discourage lazy, incompetent interrogators, but protect the principled interrogator.59 Morally justified torture thus resembles morally justified civil disobedience. Civil rights protesters break the law publicly and then submit their behavior to courts, and conscientious juries would release them too.
Stealth torture, though, undermines the balance of risk that Bowden proposes. Modern torturers specialize in techniques that leave no marks, and these torturers are at little risk of being “outed” if they are careful. And once torturers get away with clean practices, they tend to repeat them. This is the lesson of the Chicago torture scandals.
Moreover, I know of no modern professional torturer who voluntarily submitted to public scrutiny and took the heat. The historical record is that torturers come unwillingly and even then, rarely admit too much. When, for example, on the rare occasion French judges demanded Paras appear in court in Algeria, they said nothing to implicate themselves in torture, doctors often failed to find marks, and the courts regularly exonerated them.60 And in practice there was no difference between the flak jacket philosophizing of the French Paras, so reminiscent of Bowden’s argument, and government-approved torture, tacit or otherwise, in which close to twenty thousand were tortured in just one city in just one year. Perhaps there are soldiers like those Bowden describes in his stories, honorable men who just “torture a little” in an emergency and then take the consequences. But the sad reality is that like boasts of bravery, Bowden’s opinion is too easy to hold when one faces little danger one’s honor will be tested.
Governments may persist in torturing for information even when they know torture for information does not work. Not all problems of government are problems of knowledge. The notion that governments will stop when they know something does not work assumes a rationality that is all too often lacking. Sometimes officials find it expedient to torture regardless of what they know.
In the late 1950s, Paul Teitgin, the prefect of Algiers, caught Fernand Yveton, a Communist placing a bomb in the gasworks. Teitgin knew Yveton had a second bomb, and if Yveton had planted and exploded it, it would set off gasometers, killing thousands. Teitgin could not persuade Yveton to tell him where the other bomb was. Nevertheless, said Teitgin, “I refused to have him tortured. I trembled the whole afternoon. Finally the bomb did not go off. Thank God I was right.”61
One can imagine what would have happened to Teitgin’s career if the bomb had gone off. “You knew? You had the opportunity, and still you did nothing?” It would have done Teitgin no good to explain that torture produces false leads and wasted resources, that it damages police professionalism and integrity, or that Yveton might say nothing despite torture. Nor would it have helped Teitgin to say that he had started searches, authorized electronic surveillance, squeezed his informers, and interviewed all Yveton’s associates.
In such a circumstance, Teitgin could have been much more reassuring if he had tortured Yveton even though he knew torture did not work. Teitgin could have said, “Well, I was doing something, I even had him tortured. Perhaps I should have tortured harder.” Defending one’s job against angry critics gives one powerful incentives to persist in torturing even if one knows it is ineffective. Torturing proves one is tough and resolute, willing to risk one’s own soul for the public, even when everything seems hopeless.
Few can deny the power of doing “anything” under hopeless circumstances. But torture is not just anything. In practice, hiring torturers may be as helpful as hiring psychics in an emergency, another expertise police and CIA also use and with occasional success, according to testimonials.62 But the terrorist’s suffering is uniquely satisfying regardless of whether he reveals any information. Beneath the urbane, civilized appeal to torture for information, lurks a deeper impulse, born from fear and satisfied by pain.
When a public official is prepared to spill the blood of a detained, helpless individual, breaking bonds of law and morality, this appears to satisfy a debt incurred by the violence of a terrorist. For example, in September 1956, the newly appointed prefect of Oran, Pierre Lambert, directed a paramilitary unit to arrest forty individuals, the majority of European origin, including one pregnant woman. All were sympathizers or members of various leftist parties. Most were tortured, and torture in Oran was not a subtle operation. Prisoners were beaten, electrified in the body, throat, and sexual organs, showered with cold water, slapped heavily, and choked in a tub.63 Only one prisoner confessed, but she insists that what information she gave was false and misleading.64
Critics assailed Lambert, particularly for torturing Europeans. In response, Lambert described a young Algerian grenade thrower who had caused numerous deaths. “This young Muslim was a little shaken by police, he talked, the grenades were seized, terrorists were arrested and the series of attacks stopped.”65
Everyone knows Lambert’s story now as the “ticking time bomb” story.66 But the details of this miraculous case have been harder to find and ascertain. This young man’s identity is never mentioned. Maybe he existed, maybe he did not. Maybe he spoke and spoke truly, maybe he did not. But it does not matter. What mattered was that the blood debt was satisfied. In Oran, the public did not look too closely at who actually paid this price, even if victims included many innocents.
When zealous public officials torture for information, it may look like they are responding rationally to ineffectiveness. But it is difficult to understand why this response (as opposed to so many others) is so satisfying without acknowledging that officials are also purging the wounded community’s furious emotions with human sacrifices. As one active CIA officer observed in 2005, “The larger problem [with torture] here, I think, is that this kind of stuff just makes people feel better, even if it doesn’t work.”67
We will never know how common this motive is, for no public official in these times can admit to it, but, to use Machiavelli’s words, resorting to human sacrifice is a prudent political practice that leaves observers “stunned and satisfied.”68 Strategic talk about torture in the face of terrorism turns out to have a deep undercurrent of blood lust. As Friedrich Nietzsche cautions, “It is a self-deception on the part of philosophers and moralists to imagine that by making war on decadence they therewith elude decadence themselves. This is beyond their powers: What they select as an expedient, as a deliverance, is itself only another expression of decadence—they alter its expression, they do not abolish the thing itself.”69
False prophets always appear during emergencies. They are not insincere. In fact, as the theologian Martin Buber reminds us, false prophets are nothing but sincere.70 They are patriots who cannot abide the hypocrisy and stupidity of others. Like Hananiah, they break the yoke of Jeremiah that lies upon our shoulders and seek to reinforce our resistance in an hour of danger (Jeremiah 28).
We live in an age of false prophets. If the world of torture is as this book has described it, then the fate of all the Hananiahs who advocate torture is already sealed. They will be remembered only for what they said when it mattered most. In the midst of the Algerian war, a colleague of Pierre Lambert worried, “If one day he was accused, I hope he will be judged on the whole of his works in Algeria, and not on an isolated fact adroitly put in the forefront of attention [monté en épingle].”71
But the world remembers only Lambert’s torture, Lartéguy’s ticking time bomb story, Wuillaume’s narrow professionalism, and Massu’s war crimes. No one remembers Lambert was a compassionate socialist of uncommon energy, Lartéguy was a great war journalist, Wuillaume an accomplished civil servant, and Massu a patriotic general. What the world remembers is that they reinforced an illusion, and when it collapsed, so too did their people’s resistance.
No less a tragic fate now overtakes America’s flak jacket philosophers. This cost, and it is a great one, pales by comparison to what they have asked of the soldiers. The lives and families of Lynndie England, Sabrina Harman, Chip Frederick, and other soldiers are probably ruined forever. “That’s what we do. We sacrifice soldiers to save innocent lives,” argued Alan Dershowitz on CNN. The families of these soldiers probably would choose differently than Dershowitz. Families are proud their relatives serve as soldiers, but few would sacrifice them as torturers.
As for the rest of us, now that the yoke is broken, we must ask what the hour demands of each of us. We might begin by learning from the mistakes of other democracies that have tortured. These democracies lost their wars because the brutality they licensed reduced their intelligence, compromised their allies, corrupted their military and government, and destroyed their soldiers on a bonfire of vanities, and they could not come to terms with that destruction.
When the politicians first heard of the torture, they denied it happened, minimized the violence, and called it ill treatment. When the evidence mounted, they tried a few bad apples, disparaged the prisoners, and observed that terrorists had done worse things. They claimed torture was effective and necessary and countercharged that critics were aiding the enemy. Some offered apologies, but accepted no responsibility. Others preferred not to dwell on past events.
The torture continued because these democrats could not institutionally recommit themselves to limited power at home or abroad. The torture interrogations yielded the predictable results, and the democracies remained mired in war despite overwhelming military superiority against a smaller enemy. Soon the politicians had to choose between losing their democracy and losing their war. That is how democracies lose wars.72
Leaders of dictatorships sign on to the Geneva Conventions only out of prudential fear of what other states might do to their state. Leaders of democracies sign on to them not simply to restrain other states from torture, but to restrain themselves as well. They know that all human beings are capable of authorizing and performing torture. Respecting the rights of others is not coded into our DNA, but must constantly be reinforced by institutional checks and balances. As America’s founders would have told us, we are our own worst enemy, and corruption arose in our democracy not because we failed to defeat others, but because we failed to restrain ourselves.