Torture and the Ticking Time Bomb in the Era of Global Terror (February 2018): The History of Torture

The definition of torture most commonly utilized in the literature comes from the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment (henceforth UNCAT) from 1984, to which the United States became a signatory in 1994. According to this definition, as cited by Robert Pallito in his Torture and State Violence in the United States, torture is defined as

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising from, inherent in, or incidental to, lawful sanctions.

This will be the primary definition relied on in this essay and the literature it analyzes.

Several histories offer important context for understanding torture in the modern world. Edward Peters’s Torture reveals how the definition of torture has evolved over time, as has the definition of those who can be lawfully tortured. Peters notes that jurists eventually became aware that torture was more effective at testing a person’s ability to withstand pain than at acquiring the truth, and by the late eighteenth century, the practice had fallen from popularity. He relates this to the Enlightenment’s emphasis on human rights and the intrinsic value of human life. Peters also notes that the rise of wars of national liberation (e.g., Algeria) and totalitarianism (e.g., the USSR) helps explain the reappearance of torture in the twentieth century.

John Langbein’s Torture and the Law of Proof: Europe and England in the Ancien Régime provides an excellent explanation of how and why the use of torture decreased in the eighteenth century in Europe. Langbein shows that as the reliance on divine evidence of proof receded, new avenues for evidence were sought. Courts developed stringent rules that required either two eyewitnesses or a confession by the guilty party. As eyewitnesses were often hard to find and few defendants confessed voluntarily, torture as a means of eliciting confessions developed as a common practice. A problem that accompanied this practice was that innocent persons confessed due to the physical and mental strain of torture. Thus, in the middle of the sixteenth and into the seventeenth centuries, judges gained the ability to acquit or convict in the absence of a full confession, and the use of torture decreased.

Michel Foucault similarly chronicles how torture fell at least from public view in his seminal work Discipline and Punish: The Birth of the Prison. Foucault argues that the advent of imprisonment as a form of punishment changed the social fabric. Prior to the use of incarceration, criminals were punished publicly in town squares in a way that often entailed bodily harm to an extent now considered torture. Foucault argues that the transition to confinement in a cell was not about developing a more humane punishment than grotesque public mutilation, but rather that the nature of punishment shifted its focus from the body to the soul and that the prison was part of a larger societal trend toward discipline in the nineteenth century. Just as Foucault contests the idea that torture disappeared in the eighteenth century, Saidiya Hartman’s Scenes of Subjection: Terror, Slavery and Self-Making in Nineteenth-Century America provides strong evidence for the widespread use of torture during the era of slavery in the US.

Jennifer Harbury and Alfred McCoy address the use of torture in the twentieth century. In her work Truth, Torture, and the American Way: The History and Consequences of U.S. Involvement in Torture, Harbury advances the claim that since their inception, the Central Intelligence Agency (CIA) and other government institutions have engaged in the practice of torture. During the 1980s, the CIA repeatedly gave money and arms to regimes in Latin America that were regularly employing torture. Harbury’s own husband was captured, tortured, and killed in Guatemala in 1992, which she considers linked to CIA actions, and which she documented in her 1997 work Searching for Everardo. In A Question of Torture: CIA Interrogation from the Cold War to the War on Terror, McCoy extends Harbury’s argument about the CIA to the events at Abu Ghraib, which he argues were the result of CIA interrogation techniques that have been in place since the 1950s. He contends that while the US formally opposes torture, it has nevertheless continued to support its use, particularly in the psychological realm.

Darius Rejali offers perhaps the most important explanation of torture in recent times. He follows in the footsteps of Foucault in Torture and Modernity: Self, Society, and State in Modern Iran, where he argues that early punishments in Persia, while brutal, involved one person acting on another. New punishments, such as hanging (or incarceration in prisons), divorced the executioner from the executed, or the imprisoner from the imprisoned. The result was a system of discipline and subjection in which torture did not disappear, but simply changed form.

In Torture and Democracy, Rejali carries this argument further, demonstrating that torture never disappeared from the public landscape, but rather mutated long before 9/11. The emphasis on human rights in the latter half of the twentieth century prompted a turn toward methods of torture that left no marks on the body so as to avoid detection by human rights organizations—a process Rejali calls the universal monitoring hypothesis. Thus, torture and democracy are not contradictions; instead, torture within democracy takes a “clean” or stealth form, which need not be psychological. He masterfully demonstrates how clean torture techniques spread from democracies or their colonial wars to authoritarian states, not the other way around. Thus, Abu Ghraib fits neatly into a history of stealth torture that developed globally over the course of a century.