Torture…An Unnecessary Post, Part Two (The prehistory edition)
Friday, I ranted. To channel my inner Bob Dole, I wanted to know where is the outrage over torture, over the use of the name and power of the US to give official, legal sanction to the acts that we hung people for after VE and VJ days.
But it’s still important, I guess, just to add one more jot to the load of outrage. If everyone who can, does, perhaps we will begin to feel what is necessary after eight years of sustained, calculated official nattering intended to numb moral judgment.
So in this half of my superfluous post, I want to inject just a little history into the chorus, some perspective on just how badly wrong the Bush torture cabal got it, and how much moral and practical damage they have done to the legitimate exercise of state power.
The pre-Bush view of torture has a number of modern sources, but it ultimately derives from the English experience of law, pain and vengeance. I found myself doing some research into this history for my book on Isaac Newton’s little-known career as a crime fighter, in part because one of his earlier biographers, Frank Manuel, in his mostly excellent Portrait of Isaac Newton made the claim that Newton revealed himself as a monster in his pursuit of the currency criminals it was his duty to police as Warden of the Royal Mint.
I found myself disagreeing with Manuel, a little nervously, given his stature as a historian of science. But I found that while Newton was no pacifist, no advocate of Satyagraha, he was no sadist either. He knew that imprisonment in the notorious Newgate Jail was bitter, dangerous, and put the inmate at risk of real abuse. He was certainly willing to use the known horrors there to frighten informers into speech. But there is no evidence in the over four hundred documents I read in his hand or over his signature that he relied on physical violence to elicit the evidence he used to convict the coiners and countefeiters it had become, as Warden, his job to pursue.
In fact, the legal framework in which torture had been a regularized tool of the English justice system had fallen into disuse a half a century before Newton began to act as a cop. It was supplanted for the same reasons that we have throughout most of American history understood torture to be illegitimate — then, and until very recently, it was understood to be both ineffective and illegitimate, corrosive of the state’s moral authority.
To see how this transformation occurred, I looked into the history of a document called a royal torture warrant, used to formally authorize the use of torture. My main source was John H. Langbein’s excellent Torture and the Law of Proof, which conveniently included a table with details on all 81 known torture warrants.
It is not particularly surprising that Elizabeth I was the most prolific user of royal torture warrants in English history, issuing (or having issued) 53 of the surviving warrants. She had as much as any monarch to fear from her subjects, given the vicious intrigues of succession that followed the death of her father, Henry VIII, religious conflict, wars with Spain, internal court rivalries, fueling resentment at rule by a mere woman, and so on. That Elizabeth was as tough as required to retain her throne and her head is a matter of historical fact; among the means she used was state violence against those of her subjects deemed to dangerous to leave at large.
Among the techniques used were several that are recognizably the same as those that the moral bankrupts within the Bush administration attempted to define into legality. They include confinement in a dungeon with rats (Thomas Sherwood, 17 Nov. 1577, during an investigation of one of the plots against Elizabeth); manacles — essentially a stress position, as the manacled prisoner is lifted to the point where his feet do not support his weight, all of which pulls on the suspended wrists of the victim (several times through Elizabeth’s reign); whipping (Humfrey “a boy” for burglary in 1580 — note that Jesus too would have had some knowledge of Humfrey’s suffering) and “Little Ease” — confinement in a cell so small that the inhabitant could not sit, nor stand, nor move. This was used on several occasions including the case of George Beesley, a priest in violation of the Anglican acts in 1591.
The most common techniques ordered specified in the warrants were either the rack, or else simply “torture” — once “such torture as is usual,” a chilling statement to carry the force of law if ever there was one.
It is also important to understand that the English in this period understood –as Bush’s thug’s willed themselves to deny — that torture was not simply about causing physical pain. During the century or so of torture authorized by royal warrants in England, the administration of the technique came in two steps. First, the prisoner would be shown the implements of torture, to see if the horror of the thought of the pain his body would suffer on those devices would induce a confession. If that psychological coercion failed, the next step was to begin the actual process of imposing physical pain on the prisoner. Both steps were included in the instructions within torture warrants. Thus, in 1642, when the apprentice glover John Archer was to be put to torture to gain information about a riot outside the Archbishop of Canterbury’s palace at Lambeth, he was first given time to stare at the rack — and only if he remained silent, according to the warrant, the last to be issued in England, was he to be bound onto the machine.
Such mental torture was recognized to be genuinely coercive as well — though in this case it did not persuade the luckless Archer to betray any of his fellow rioters.
That is: fear of pain and the terror of plausibly imminent death, have been recognized as elements of torture for a very long time.
There is much more to the history of English legal theories of torute, but the point of this lightning fast gloss is simply to reinforce what should be obvious: the opinions of the Bush “Justice” (sic) department were nothing more than words in the form of law whose sole purpose was to provide cover for what any competent lawyer would have had to recognize as crimes. Those who wrote them were teaching theselves to unknow what they know; they were wounding themselves, amputating their own capacity to reason.
That’s the pity of it; the terror lies in whatever success they have in persuading the rest of us to so self-mutilate.
And what is worst of all is that the Bush administration descent into moral deformity came four hundred years after our English legal antecedents recognized that torture was both ineffective and irrelevant.
The last monarch-issued torture warrant dates from 1642, just before the start of the Civil War. This was hardly a time when Charles I could have felt any more secure than Elizabeth at her most precarious; the revolt that would cost him his life was almost upon him, and no one on either side of the Court/Parliament divide had any doubt about the potential for violence at every turn. So why did the King cease to brandish the rack at his subjects?
Several reasons have been advanced for the forgoing of torture as a tool of investigation or the discovery of evidence. Two matter most. First, even then, it was understood that information received under torture was unreliable. Second, and much more important in the current context: the fact that England had adopted the system of using juries at trialspermitted the evolution of new ideas about judicial truth.
In traditional approaches to justice confessions were seen as certain proof of guilt, and hence, absent some system for finding fact, were almost essential to legitimize verdicts. But with juries, other evidence could take on more and more weight, rendering confessions less significant and finally unnecessary in making a judgment of guilt.
That is: the English in the early 17th century figured out (a) that you hurt someone enough they’ll confess to murdering Father Christmas and (b) that there were smarter ways both to find out what you need to know to preserve security (in much more precarious states than our own) and to convict those who did in fact commit harm to individuals or the body of the state.
To sum it up in one sentence: if you trust the rule of law, you don’t need to act in ways that would make Jesus weep.
And that’s why it’s past time to shine a light on what crimes the Bush torture cabal actually committed in our names.
[The accounts of the history of torture in England of this post were originally published by Andrew Sullivan in slightly different versions as messages from an anonymous emailer, written a couple of years ago (before I started this blog). I felt and feel the argument I was trying to make then needed reformulation now; hence the resurfacing of this material.]
Images: Jacopo Pontormo, “Torture of St. Quintus,” 1517-1518.
William-Adolphe Bouguereau “The Flagellation of Our Lord Jesus Christ.” 1880.