“Not torture”

by Chris Bertram on November 21, 2005

“Orin Kerr at the Volokhs”:http://volokh.com/posts/1132357846.shtml has a link to an “ABC News piece on CIA interrogation techniques”:http://abcnews.go.com/WNT/Investigation/story?id=1322866&page=1 . Apparently these methods are “not torture”:

bq. 4. Long Time Standing: This technique is described as among the most effective. Prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours. Exhaustion and sleep deprivation are effective in yielding confessions.
5. The Cold Cell: The prisoner is left to stand naked in a cell kept near 50 degrees. Throughout the time in the cell the prisoner is doused with cold water.
6. Water Boarding: The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner’s face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt.



Matt 11.21.05 at 12:22 pm

It’s worth noting, as at least one commentor does at the VC, that even the seemingly mild “attention grab” was (officially at least) banned by Israel after quite a few people subjected to it died. This is all beyond the obvious fact that in cases like this one should always assume that what is exposed is the minimum of what’s happening.


des von bladet 11.21.05 at 12:24 pm

The Genocide Victim’s Museum in Vilnius, Lithuania (dedicated to the KGB’s campaign to Russify the country rather than anything that may or may not have happened to the local Jewish population) certainly considered similar treatments to be torture, on the reasonable and obvious grounds that they are.


Matt McGrattan 11.21.05 at 12:39 pm

I note that the Volokh commentators are largely sneering at those who consider these interrogation methods to be torture.

To put it mildly, this does not reflect well on them.


abb1 11.21.05 at 12:50 pm

From Solzhenitsyn’s Gulag: The Simplest Methods which Break the Will

What a crybaby, none of it was torture. Some evil empire.


Cryptic Ned 11.21.05 at 1:13 pm

As another person who has been to the Vilnius genocide victims museum, I can say that the technique they expected us tourists to be most horrified by was basically #5 (a room with the floor covered with water, and a pedestal where you had to stand – no way to sit or sleep without being in the freezing water).

But it’s all different if the technique is being administered by Americans. You know you’re in safe hands, just like basic training or fraternity hazing.


Alex R 11.21.05 at 1:14 pm

I felt no great need to add my comment to the end of the already voluminous Volokh comment thread, but:

Have people lost their minds? Why are we sitting around having arguments about torture, whether it is acceptable, whether technique X is *really* torture, or how many people must die at the hands of interrogators before we start to question whether they have had their human rights violated? Are these the values that Americans (for it is mostly Americans among the Western apologists for torture) grew up with? Have we been so deranged by a few admittedly catastrophic terrorist bombings that we want to throw out the progress made on this since the middle of the last century?

If you had told me five years ago that seemingly intelligent people would propose concepts like “torture warrants”, that Americans could hold prisoners of war in the most degrading and inhumane conditions, that some of them would be killed due to the techniques used on them, and that the President of the United States would give a speech in which he ignored these abuses and proclaimed that “we do not torture”, I would have thought you were a raving, paranoid extremist — that we were better than that.

I am grateful for those who have the fortitude to make the “rational”, “logical” arguments for why we should not torture — arguments about how it doesn’t work, or how it endangers our own soldiers, or how we need to support things like the Geneva convention. I’m grateful to those people because I have little patience for these arguments, as valuable as they are.

The only argument that I can make is simple, glaring, and blindingly obvious to anyone with any moral sense: Torture is evil. Creating physical pain or fear of death in someone in your custody — whose freedom you utterly control — for the purpose of eliciting a confession or a piece of information is evil. Doing these things, even with the most lofty goals in mind, is a rejection of millenia of moral teaching, whether your teacher is Kant, or Jesus, or Mohammed, or the authors of the Torah.


Matt Weiner 11.21.05 at 1:33 pm

This is one of the more dispiriting comments (but I haven’t read much farther down)–by ruling that the US ought to give detainees some due process rights, the Supreme Court was demanding that the government put them in secret prisons so those rights couldn’t be enforced.


Anderson 11.21.05 at 3:18 pm

The above post seems to me to imply that Prof. Kerr says or agrees that “Apparently these methods are ‘not torture.'” If he does, he sure doesn’t say that. Just wanted to be clear. (‘Cause god knows there are plenty of creeps in the thread who either agree that those aren’t torture, or applaud torture in any event.)


Commenterlein 11.21.05 at 4:29 pm

Reading the comment thread over at the Volokh conspiracy made me truly sad. The last few years have destroyed any remaining illusions I have had about the basic decency of the American people.


Idiot/Savant 11.21.05 at 4:47 pm

The last on the list – waterboarding – was used by the Spanish Inquisition. but I guess they weren’t torturers either.

There’s also an interesting Renaissance woodcut of the method in action here.

Finally, I’ll note that it clearly violates the federal anti-torture statute, which includes “the threat of imminent death” in its definition of torture. It’s not just international law the Bush Administration is laughing at, but US law as well.


brendan 11.21.05 at 5:14 pm

Isn’t language a funny thing? From the ABC report:

‘Two sources also told ABC that the techniques — authorized for use by only a handful of trained CIA officers — have been misapplied in at least one instance.

The sources said that in that case a young, untrained junior officer caused the death of one detainee at a mud fort dubbed the “salt pit” that is used as a prison. They say the death occurred when the prisoner was left to stand naked throughout the harsh Afghanistan night after being doused with cold water. He died, they say, of hypothermia.

According to the sources, a second CIA detainee died in Iraq and a third detainee died following harsh interrogation by Department of Defense personnel and contractors in Iraq. CIA sources said that in the DOD case, the interrogation was harsh, but did not involve the CIA. ‘

Here’s a task for you. I assume these things are taught in journalist school. Try and rewrite the basic facts: ‘The CIA tortured two prisoners to death, and the DOD tortured another prisoner, also to death’ in such a way that it sounds like ‘well, hey it was just one of those things.’ The above quote is exemplary. Emphasise that the torturer was ‘a young, untrained junior’ torturer, not an experienced, trained torturer. State that the torture was ‘misapplied’ (as opposed to correctly applying torture…gosh we all know how bad torture can be when it’s misapplied!). Finally, emphasise the ‘medical’ aspects of the phenomenon. So a man died of hypothermia (not, say, of torture).

Other miscellanous points: use neutral language as much as possible: so the torture led to a ‘death’. Emotive, accurate language like ‘murder’ would be highly inappropriate in such an august setting. And emphasise the meaningless ‘defence’ that the CIA didn’t murder, sorry, ’cause the death’ of one person: that was the DOD (compare and contrast: ‘we have investigated the case and discovered that the death was not caused by the SS, but by the Gestapo. Here endeth the explanation’).

A final (risible!) thought experiment. Or, in fact, not even a thought experiment. Look at your old history books, the World at War or whatever. See how situations where the Nazis tortured prisoners to death are described. Compare and contrast.

What have we become?


jd 11.21.05 at 5:37 pm

I heard about waterboarding from special forces while in X-stan. He was taught the technique, and several others, as emergency battlefield intelligence gathering. IE- use this to get information that is extremely time sensitive and you know what you need to learn: such as where is the hq, how is it guarded etc. For that purpose it seemed effective, however, other, less agressive methods should always be used whenever possible. He was definitely under the opinion that the information provided was of minimal reliability.

For clarification- is it torture? Yes. Should torture ever be officially sanctioned- No. Is torture ever necessary? Yes, but very rarely, and the individual performing it should be willing to pay the consequences for their actions in a court martial.


Mike 11.21.05 at 5:41 pm

The last few years have destroyed any remaining illusions I have had about the basic decency of the American people.

Yes, I suppose it’s only the people who haven’t been victims of the basic indecency of the American people who harbored illusions about their basic decency.

What have we become?

What we always were. Ask a Dakotah. Ask a decendant of slaves.

American exceptionalism was always a myth. Maybe now it can finally die, in time for the rest of the world to save itself.


Sebastian Holsclaw 11.21.05 at 6:22 pm

“Try and rewrite the basic facts: ‘The CIA tortured two prisoners to death, and the DOD tortured another prisoner, also to death’ in such a way that it sounds like ‘well, hey it was just one of those things.’

A final (risible!) thought experiment. Or, in fact, not even a thought experiment. Look at your old history books, the World at War or whatever. See how situations where the Nazis tortured prisoners to death are described. Compare and contrast.

What have we become?”

A BBC journalist talking about Palestinian suicide bombers? Minimizing horrors isn’t just done by FoxNews.


Uncle Kvetch 11.21.05 at 6:28 pm

Compare and contrast.

“The U.S. of A.: Still Better the Nazis!”


snuh 11.21.05 at 7:41 pm

good god holsclaw, when did you become such a hack?

Results 1 – 10 of about 13,900 from news.bbc.co.uk for palestinian suicide bomber


luci phyrr 11.21.05 at 8:09 pm

“Outlaws” and “people of authority” are usually just rival gangs.

Some countries are more hypocritical than others – the US has lately become slightly less hypocritical, by becoming more overt.


Neil 11.21.05 at 8:49 pm


Substantive issues about the BBC aside, what’s your point? The BBC minimises terrorism, so torture is okay?


bellatrys 11.21.05 at 10:10 pm

We called it both torture and a war crime in the Philippines when we wanted to arraign the Japanese.

OTOH, when we were doing it there not so much.

And when it was our Good Buddy Marcos, defender of democracy, we pretended we didn’t know it was happening even while we trained his enforcers…

Oh, and there was even a violent rebellion against the Spanish Inquisition when it got started. They tried to fight it – bloodily put down.


Phoenician in a time of Romans 11.21.05 at 11:52 pm

The only argument that I can make is simple, glaring, and blindingly obvious to anyone with any moral sense: Torture is evil.

No, no, no. Muslim extremists are evil.

America, not being a Muslim country, can do no evil. At worst it can do regrettable mistakes, simple exceeses of zeal in pursuit of a good cause, hardly worth mentioning.

Why, to call something done by Americans “evil” is nothing short of moral relativism.


brendan 11.22.05 at 4:03 am

Sorry Sebastian, what’s your point? Have you any examples of the Palestinian authority torturing Americans (or Israelis for that matter) to death?

And if there were such cases, do you think they would be reported in the Western media as ‘Palestinian enhanced interrogation techniques led to the death of an American’?


dale morris 11.22.05 at 4:21 am

Apologies if I repeat a point already made. The main argument against torture is not moral, or at least only second-order moral. The main argument against torture its uselessness.

This quote, below, perfectly exemplifies the problems of not realising that torture is useless.

“For clarification- is it torture? Yes. Should torture ever be officially sanctioned- No. Is torture ever necessary? Yes, but very rarely, and the individual performing it should be willing to pay the consequences for their actions in a court martial.”

When is it necessary?

Apparently, torture is necessary when there are

(a) a zillion lives at stake and a ticking clock
(b) etc

Pick one.

This is incorrect. In the example of a hidden bomb and a countdown to an explosion, what is necessary is the location of the bomb. There is no reason to believe that the information provided by a tortured person is valid. In fact, torturing someone to provide a confession, as the inquisition (amongst others)discovered, does not mean that the confession is true. Stand on one leg for 40 hours. What would you say in order to be allowed to sit down?

Torturing someone, under the ticking bomb scenario, is by definition an act of desperation by a person who has already failed to discover what they need to know. It confers a sense of power on the torturer, and helps satisfy the need for some kind of certainty. But it doesn’t provide information that’s of any value.

This makes the following:

“…Exhaustion and sleep deprivation are effective in yielding confessions…”

all the more risible.

Any first-year psych student should know that’s true. But they would also know that the quality, value of such a confession (or any other claim made under such conditions) would be zero. It would require extensive substantiation and investigation, almost certainly enough to render the original torture irrelevant.

What makes this even less tenable is that the instances of United States torture occur in situations where the tortured person is provided, by his or her torturer, with sufficient information about what they must confess to. Hence the 500 second-in-command’s of Osama Bin Laden that have been turned up by torture.

Question 1: What must one do then, in the ticking bomb scenario?

One must have better intel beforehand. This is readily achievable, if your country can divorce its ideological leanings from its intelligence gathering activities. If not, forget about it. One must have sound international relationships that afford the benevolent use of other countries’ intelligencer services. One must cultivate a policy internationally that reduces the chances of attack, initially at least, by simply not attacking others.

(This point is often lost on Americans – the attacks you have experienced have been reciprocating attacks. They were avoidable. They need never have happened.)

There are a variety of such mechanisms and policies that render the chances of a ticking bomb scenario moot.

Question 2: What, if anything, (since it doesn’t provide meaningful intel) does torture achieve?

· Torture raises the stakes for future combatants and acts of terrorism.

· Torture requires future combatants to become better organised and partition each cell from complete knowledge of an operation. This is bad and makes the pitiful intel derived from future torture even less likely to be worthwhile.

· Torture consumes valuable resources and personnel that would be better served doing something else.

· Torture polarises future sources of possible intel and closes off the flow of information. (It helps decide the undecided.)

· Torture creates zealots and thereby inflames resistance.

· Torture makes international relations more difficult.

Question Three: Why then is is used? It must serve some need?

· Torture satisfies an atavistic need for revenge.

· In a nation obsessed with the use of power and manliness, it demonstrates an avenue for such use.

· Torture creates a false sense of control, in a world that is often threatening – ‘I can make a man beg for mercy’

This then helps define one (second-order) moral argument against torture: since torture doesn’t solve the ticking bomb scenario, and it creates a greater likelihood of future such scenarios, then engaging in it as demonstration of manliness or to gain a specious control, while risking lives to do so, is to put your short-term gratification and power-lust ahead of others lives, and is immoral.

By the way: I’m from South Africa. Putting a wet plastic bag over another’s head and threatening them with death is torture. Ask the presiding officials at the Truth and Reconciliation Commission. And ask Jeffrey Theodore Benzien.

Read here or here for the comparisons.


dale morris 11.22.05 at 4:57 am

For sake of clarification:

In my post (22), I use the initial quote from jd’s post (12) because even amongst those whose views I might share, the error of ascribing an undefined magical power to torture, one that requires its use to be reserved for some undefined special case, is present. I’m not trying to knock jd. He just made my strong case for me to.

It’s also worth noting that the battlefield scenarios he describes (in terms of which he thinks torture may be useful) do not reflect the United States position, which seems to be to sanction and institutionalise torture, and have it be performed at leisure.

Even had his scenarios adequately described the US position, such battlefield scenarios still suffer all the defects I described, and induce all the disadvantageous consequences. Mutilated and/or tortured corpses discovered by enemy combatants do not induce fear, they induce rage, resistance and retaliation, as the US discovered in Vietnam and is redicovering in Iraq, the South African government discovered in Namibia et al, the French discovered in Algeria and so on.


Matt 11.22.05 at 6:49 am

In times like these J. M. Coetzee’s _Waiting for the Barbarians_ seems more and more like a briliant foretelling of the future of the US.


bellatrys 11.22.05 at 6:53 am

One of the more disturbing things I ever read was the rationale for the historic basis behind judicial torture in ancient China – not sadism at all, it was used because they couldn’t legally execute anyone who hadn’t confessed to a capital offense. So, what do police do when they have someone they know is guilty of, say, murder, but he won’t confess? Ans: make him confess for the good of society.

On an informal, non-codified basis, this is *exactly* what our own US and other Western police forces have always done. And it’s totally schiz – on the one hand, we’re shocked, shocked! at a Louima case – and OTOH “everyone knows” that the police “rough up” suspects to “make them talk.”

It’s like the 50s attitude towards marital rape and domestic violence – pretend you don’t see the bruises, accept that “she walked into a door” or “the kid tripped”…and then go all freak when some kid dies of concussion or wife is shot. Pretend it’s an isolated incident. Rinse, repeat.


Mrs Tilton 11.22.05 at 8:08 am

Bellatrys, those ancient Chinese weren’t so very different to us. In England of old, if you were accused of a crime but wouldn’t submit to trial by jury — remember, jury trials were originally an innovation, a deviation from ‘standard’ procedure that could not be forced on a defendant — you’d be subjected to the peine forte et dure. That is to say, you’d have stones piled on your chest until you agreed that a jury trial wasn’t so bad an idea after all, or else until you died.

But if you died under the stones, you went to your death unconvicted of felony, nor were you deemed a suicide. You kept a clean sheet, and your stuff could go to your heir rather than to the crown.

Ancient history, of course; trial by ordeal petered out after the church stopped playing along, and trial by jury swiftly supplanted trial by combat. Trial by combat wasn’t quite as eliminated as people had thought it was, however, as the English would learn centuries later. But that’s a story for another day.


des von bladet 11.22.05 at 8:13 am

One conspicuous difference from ancient Chineses and Englishpersons of old on the one hand and Englishpersons of now on the other is time (the passing of).


pedro 11.22.05 at 12:12 pm

There is a very amusing (and terrifyingly stupid) right-wing meme about “not torture”: it resembles initiation rituals of American fraternities. Right-wingers either fail to understand how formally similar “techniques” are spectacularly different in the two relevant contexts, or are disingenuous enough to suggest that all that matters is formal similarity. Give a Guatemalan G2 “interrogator” a tiny bit of legal room to perform his “techniques” on fraternity recruits (with the purpose of extracting “information”, rather than simply to have a good time), and I assure you: torture is not a misnomer for what happens next. At the risk of psychologizing, I think right wingers are afflicted by both attitudes: (1) a contrarian, almost naive, fascination with the possibility of inflicting torture-lite, and (2) a profound reluctance to admit that American (exceptionalism?) “interrogators” would abuse their power to the degree of incurring in torture. Naivete + dishonesty.


Rachel 11.22.05 at 2:27 pm

Out of curiosity, do the DoD and CIA give reasons why they believe these tactics are not torture? Or do they feel no need to justify themselves?


bellatrys 11.22.05 at 9:18 pm

Oh, Mrs T, I do know about “pressing” – it wasn’t just an alternative to h.d.q. – itself about as horrific a “cruel & unusual” as we have come up with, not least for its public entertainment value – in England, it was also imported with the Pilgrims to Plymouth, where it featured in the Witch Trials at Salem.

No, what got me was the *logic* of it – and that a whole lot of people I knew agreed with that logic, even if if you asked them out straight “do you approve of torture” they might have gone “Ugh, you sicko!” but when it came to approving the beating of truth out of the “suspect” who you *knew* was guilty, ticking bomb or no, they approved when seeing it in film (so long as it was of course the Good Guys doing it, not being done to) and turned the blind eye to reports of police brutality in the news.

And I realized how easily a Good Ideal could get perverted into atrocity, how we could turn the intent to kill no innocent into a horror show, and had. Coast to coast, age to age, every race and people under the sun–

des von bladet, I have no idea what you were trying to say there – English is not your first language, then? All I am saying is, approval of official torture by law enforcement is something universal to all civilizations, which is sometimes openly acknowledged and sometimes covert, tacitly acquiesced in, and countries *don’t* progress steadily, we go backwards as often as forwards, or more often backwards in some areas, while improving in others.

Right now we are going back past what was okay (legally) on paper in 1600 in the Anglosphere; we are in the process of ditching, or rather, formalizing the ditching, of 1679’s human rights laws (which banned shipping people overseas to avoid charging them so you could imprison them indefinitely as well as mandating speedy trials) and zooming back to leave Magna Carta in shreds, too.


cm 11.22.05 at 11:47 pm

The discussion about the supposed effectiveness (or lack thereof) of torture in obtaining accurate information may in good part miss the point. The actors on the ground on whose behalf the torture is performed are not necessarily interested in accurate information, but perhpas more in actionable information.

With many systematic persecutions or other systematically executed efforts to address a “problem”, the sequence of event often goes like this:

A problem is perceived, and its supposed cause (enemy action) and a class of “enemy” identified.
A “solution” to the problem is devised (arrest and/or extermination of the enemy), plus procedures for executing this.
Based on a priori judgement, and updated as we go, estimates of enemy strength, and quotas for arrest/extermination are made and distributed (cf. also “body count”).
It is understood that rounding up random people will not solve the problem (our actors may be misguided, but they are not that stupid). Rather it is understood that information about the enemy must come from enemy members itself, plus additional reconnaissance effort.
Suspected enemies and other “intelligence assets” are rounded up and “interrogated” to yield further leads. Due to the ineffectiveness of obtaining the “initial material” and the unreliable information coming out of torture (further distorted by pressure to perform on the part of “investigators”), the next rounds of arrests are of similar low quality. In addition to this, investigators have to show results (measured by number of arrests and “confessions”), leading to the obvious efforts to fill the quota.
Due to the ineffectiveness of “solving the problem”, the problem persists, or even becomes moer dire, e.g. assisted by a backlash due to information about torture, and occupier incompetence, spreading.
Rinse and repeat.

Those features can be found in the Catholic Inquisition, persecution of various enemies under Stalin, the Nazis, Middle/Southern American, Middle Eastern & other totalitarian regimes, the Vietnam/Iraq wars, etc.

I’d even make an analogy to other top-down directed approaches to solving problems perceived at the top, without allowing bottom-up feedback or considering information that is not considered expedient. The corporate world is rife of this as well (although I have not heard stories of employees being tortured for not delivering sales quotas). No joke intended. OTOH we read stories of Iraqi athletes being tortured or intimidated by Saddam Hussein’s son(s) for not performing satisfactorily in competitions, which I consider very credible.


cm 11.22.05 at 11:48 pm

Shit, I specifically used nice HTML markup and the preview showed it, but it was stripped in the final comment. Notice taken.


cm 11.22.05 at 11:53 pm

One point I forgot to make: In the torture examples I quoted, as well as many other investigations with or without torture, one consistent feature in extracting confessions is that “delinquents” are not left to volunteer information, but the information is put to them.

Especially in a torture situation, the interrogators will just get the offered information confirmed/thrown back at them. Which may be exactly the point — the information comes from the person interrogated, and is demonstrably not “invented” by them.


des von bladet 11.23.05 at 7:04 am

des von bladet, I have no idea what you were trying to say there – English is not your first language, then?

Of course it is. My point, which has been made more intelligibly by others, is that the past is just as foreign a country as (say) China: Mrs. T’s historical ruminations hinted at a historical elision.

But since you’re playing, I will say that no monotonically-functioned metanarrative of nation ethics strikes me as possible or even sensible.


Alec 11.23.05 at 11:01 pm

Brain-scanning lie-detection (soon to be completely accurate) changes the debate profoundly. If a detainee is caught lying, he goes on the waterboard. An irresistable one-two punch, yet innocents and the compliant would remain completely unscathed. If they are telling the truth, we know it. No reason to coerce. My post here.


cm 11.24.05 at 4:24 am

alec: Soon to be completely accurate, like the polygraph, no?

Dude, when will people give up on the easy road to phenomenological conquering of the human mind?

There are ways to cheat the polygraph, and ways will be figured out to cheat your perfectly complete brain scan. Initially the polygraph worked, until people figured out how to “break” it. And being an engineer with some amount of science background, I take any assurances of “perfect” and “side-effect free” science with a large grain of salt. If I were to use harsher language, I would use words with the letters B and S in them.

And that the threat of torture is not coercion, what can I possibly say that is not already implied … and of course, only lying terrorists will be tortured. People where the brain scan does not indicate lying but which fail to produce the desired information will be released immediately — but wait, maybe we just failed to ask the right questions … or to “set the proper conditions” …


Neil 11.24.05 at 7:52 pm


At best the claim is a statement of faith. There are effectively NO peer-reviewed studies of the effectiveness of brain scanning technologies, because the technology is proprietary and the owners won’t allow its methods to be studied. They have conducted some studies of their own, but they violate every canon of blindness and impartiality. Article from a recent American Journal of Bioethics here (subscription required).


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