Wednesday, December 10, 2014

Torture: An Old Issue

The use of torture to extract information is not a new idea. Under both Athenian and Roman law, slave testimony could only be taken under torture. Presumably the theory was that slaves were interrogated in order to get evidence against their owners, the owner had ways of putting pressure on the slave, so torture was needed to get the slave to tell the truth. In Imperial Chinese law, not only the defendant but also witnesses could be tortured. In that system, and I think also in some legal systems of medieval and renaissance Europe, a defendant could only be convicted by his own confession. Torture was one way of getting it.

The argument against torture, that the victim will say whatever he thinks will end it whether true or false, is also old—people in the past were not stupid. Our main source of information on Athenian law consists of orations written by professional orators to be memorized by a party to a law suit in a legal system where there were no lawyers and each party had to represent himself. There is one oration which claims that slave testimony under torture is perfectly reliable, that there has never been a case where it turned out to be false. There is another making the obvious argument on the other side, that such testimony is worthless since the slave will say whatever the torturer wants him to say.

They were both written by the same orator.

People in other legal systems that used torture were also aware of the problem. There is a collection of Chinese cases compiled in the 13th century for the use of magistrates. Many of them are cases where a clever judge realizes that an innocent person has been forced to confess under torture and figures out who is really guilty.

That raises an obvious question—if they saw the problem with torture, why did they continue to employ it? One answer is that extracting information might only have been an excuse, that the real purpose was to punish someone without having first to convict him. That is a possible explanation in some contexts, including the current case of torture by the CIA. But it does not explain contexts where the person being tortured was not the suspect but a potential witness.

A second possible explanation is the belief that a competent interrogator could distinguish a real confession from a fake one. That strikes me as the most likely explanation in the Roman and Athenian cases, where it was the defendant's slave, not the defendant, who was being interrogated.

A third explanation is that torture might produce information that could be checked. That is the situation in the hypothetical cases sometimes offered in defense of the use of torture—the suspect is being forced to say where the kidnap victim, or the terrorist time bomb, is concealed. More plausibly, to say where the loot is hidden.

One example of this approach occurs in the earliest of the surviving Germanic law codes. Under the law of the Visigoths, before a suspect could be tortured the accuser had to provide the judge with details of the crime that an innocent defendant would not have known. The defendant's confession was only accepted if it matched the details. If the accuser had made the details public, the defendant could not be tortured. How satisfactory the system was for the defendant would depend on how severe the torture was and how much permanent damage it might do to him, but it at least was a way of distinguishing a true confession from a false one. The same approach is used in modern law enforcement, where a confession is validated by the fact that it contains information only a guilty defendant would have.

Both the Visigothic and the modern versions depend on the honesty of the people conducting the interrogation. A policeman who extracts a confession by either physical pressure or the threat of additional charges can make it more convincing by providing the relevant information to the defendant in the course of the interrogation. That possibility is an argument for recording all interrogations and making the recordings available to the defense. That option was not available to the Visigoths. I do not know if they employed the period equivalent—trustworthy witnesses to the whole procedure.

One can offer theoretical arguments for legalizing the use of torture. The problem with such arguments is illustrated by the evidence in the CIA case. Even if there are rare situations where the use of torture would be justified, once legal it is not likely to be limited to such. It is risky to give government actors powers on the assumption that they will only be used when they should be. That mistake is sufficiently common to have acquired a label, at least among economists:

The Philosopher King Model of Government.


RJM said...

Interesting article!

You provide three possible explanations for the question

"if they saw the problem with torture, why did they continue to employ it?"

I would like to add another one.

Currently I deal with publications of authorities where they interpret laws and formulate rules and guidelines. Sometimes I encounter sentences like "market manipulation is forbidden" and "the bank must prevent market manipulation".

This provokes in me the question: How do they enforce this prohibition? What is the use if it can't be enforced?
Often banks implement those laws by generating documents that follow a similar vein: Terms and condition that state "market manipulation is forbidden".

For the enforcement of the rules by the authorities involves huge assessment procedures, audits and reports ... which again is somewhat funny when a simple sentence in the terms and conditions repeating the law literally does the trick already (in this particular example).

My explanation is that the bureaucrats believe in the power of written rules, including both, the rules they write and the rules the bank writes.

I.e. they believe that prohibition and pressure is a means to enforce. (prohibition of market manipulation is notoriously ineffective, they don't care)

Maybe it's a similar thing with the torture example.
You write "they" in "if they saw the problem ...". Maybe some saw the problem and others just believed things like:

If you ask someone to tell the truth, he will maybe tell the truth.
If you pressure someone into telling the truth, he will be more likely to actually tell the truth.
If you want to be sure that someone tells the truth, even if he has incentives not to, increase the pressure accordingly.

The general principle being "if you want someone to do something with certainty, you have to force him".

The blindness for side effects (all of which you mention) is a recurring theme of statism, violent rule, and violence in general.

Frederic the Great banned torture, but kept it for certain crimes. As if the logical problems don't apply, once the crime is severe enough ...

Anonymous said...

You discuss torture only in the context of functionality - a means to an end. And certainly this is the only strategy of official justification that will hold much water in public discourse.

But what humans end up doing doesn't only depend on incentives that look good in public. There are darker incentives that people hold covertly.

One such incentive is that torture is fun. There are sociopaths and sadists who like torturing for the sake of torturing. There are even more people who like torturing certain classes of victims, especially hated or marginalized outgroups.

These kinds of incentives, let's call them gratification of raw evil, probably buffered the acceptance of official "means to an end" justifications of torture. They probably still do - go to an anonymous image board and queue the covert acceptance of torturing certain outgroups and the average answer is pretty barbaric.

David Friedman said...

"but kept it for certain crimes."

That isn't necessarily illogical. One point I thought of making in the post but didn't was that whether torture makes sense depends, among other things, on the tradeoff between the gain of sometimes convicting criminals you otherwise would not have and the loss of torturing, and sometimes convicting, innocent people.

For a crime where you think getting the criminal is enormously important, the gain might outweigh the loss. I think that's part of the reason why, when people are constructing arguments in favor of torture, they tend to involve things such as a hidden nuclear weapon.

Greg Yarmit said...

It was not easy to find on Internet that Frederic the Great “banned the use of torture for crimes other than treason” (from “The 17th and 18th Centuries: Dictionary of World Biography, Volume 4” page 505). So torture was not used to convict (you know that person had committed treason) but extract more information. Whether torture is effective to get information is, at least, depends. But so other devises used for finding and killing enemies. It is interesting that the same people who are against torture have full support for killing by drones. It is like killing viewed as relieving from suffering of life.

Greg Yarmit said...

Question – How people reacted (or would react) from releasing “torture” report? How many people believe that this is crime or service? How you would guess response based on demographic – age, profession, experience and etc. Or is this just party line?

David Friedman said...

Greg: I suspect a lot of the reaction depends on nationalism, to what extent people see issues as us vs them, where "us" is the U.S., identified with both its government and its population. The report makes "us" look bad, and for many people that makes releasing it a bad thing even if it is telling the truth.

Greg Yarmit said...

David: I am not even asking whether releasing of report is good or bad thing. This is different problem. But how many think that what is done in the report is good or bad thing.
Unless you are true internationalist or cosmopolitan (btw these terms including nationalism are so loaded, especially for us former soviets, but I don’t mean any negative connotation) you should think that it is US vs. THEM. We know them. They want to kill us. US depends on your context - USA, jews, not like them and etc. Do you think that all of US think that we look bad by this report?

Bruce said...

When the cops were showing Kenneth Rexroth the goldfish in 1920s Chicago, they never even asked him any questions. He thought it was obvious they just did it for fun.

Fred Saberhagen's Vlad thought torture was a lot more effective than most people think, for three purposes- 1)get info, 2) punish people, 3) get people to avoid you (overlaps with 2). Of course Vlad the Impaler was biased.

Julien Couvreur said...

Thanks for the historical perspective.

This reminded me of a freakonomics podcast about medieval ordeals (which seem like a kind of torture), entitled “What Do King Solomon and David Lee Roth Have in Common?”

David Friedman said...


Peter Leeson has actually done some interesting work on ordeals. He argues that they worked.

What was going on, by his account, is that the defendant could channel the case in ways that did or didn't lead to an ordeal. Defendants mostly believed in the ordeal, so guilty defendants mostly avoided it. Priests, knowing that, rigged the ordeals to mostly acquit.

He actually has some evidence to support that interpretation.

Bill Conerly said...

Interesting argument, but I'd like to remind everyone that it's a practical discussion only among those willing to use violence against innocent people. For those who believe in rights, it's a discussion about the practical costs of being free.

Anonymous said...

Were the Athenian and Roman law codes to some extent protecting potential witnesses from retribution? How would a master treat a slave who had informed on him, or his father?

dd-b said...

The simple-minded practical arguments for torture tend to be time-limited. In that case, the subject can say anything he wants to, and they stop torturing him to head off to the wrong place to disarm the nuclear bomb. Then the actual bomb goes off, and kills both the terrorist subject and the crew (who are still within the blast radius, just not at the right place). So clearly torturing the terrorist in that simple time-limited scenario doesn't work, if the terrorist is at all resolute.

You mention philosopher-kings. I realized a few years back that that's actually what Doc Smith created in the Lensman universe -- the Arisians provided certified philosopher-kings, and government evolved so that they were the only ones allowed on (for example) the Galactic Council. (They appear to have been popularly elected, but being guaranteed philosopher-kings it didn't actually matter which ones were chosen.)

It does seem to me fairly severely immoral to torture people. It's especially bad in my view if the people turn out to not have the information you want -- you chose them based on faulty intelligence (or faulty logic, or sheer bigotry).

RJM said...

I stand corrected. After having continued reading "Christopher Clark: Iron Kingdom - The Rise and Downfall of Prussia": Frederic the Great indeed kept torture in place on a quite rational basis (not, as I suggested, because it was mystically deemed useful) and got rid of it completely shortly after.

Jim Rose said...

much of the information from the enhanced interrogation program came from the fact of what people spent their most of their time concealing or downplaying. The Gitmo detainees all said that this same person was a total nobody. That nobody happened to be Bin Laden's courier.

Most importantly, what matters is what the other side think of the effectiveness of torture.

One of the results of these interrogations is it broke up Al Qaeda as a network. It degraded Al Qaeda as an organisation capable of launching major attacks with key terrorists at the centre with the skills and determination to be able to organise these large-scale attacks.

Because captured terrorists would be interrogated thoroughly, Al Qaeda had to change into a far more decentralised and less effective network to be less at risk to captured members informing on them sooner or later.

In its early days, Al Qaeda was happy to have key people going around with lots of information in their heads and coordinating everything from the centre because they thought they wouldn’t be interrogated thoroughly if captured. That is no longer the case.

Al Qaeda translates as The Base. The jihad was supposed to have a structure, leadership and central direction and financing.