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.

It was a completely superfluous rant; others are saying the same, better (h/t Eric Martin) and with more eloquent rage.

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.

Explore posts in the same categories: Bush follies, Crime, deceit, Isaac Newton, Newton and the Counterfeiter, Republican knavery, torture, tyranny

7 Comments on “Torture…An Unnecessary Post, Part Two (The prehistory edition)”

  1. Spiv Says:

    I think there are a lot of people out there who do want to pursue the criminal nature of these acts, but I think the larger majority (and I’m not counting the standard 20-30% who will go along with just about anything), simply have our eyes blackened by the whole experience. I think the first phase of this is simply a mix of shame and relief that what was done has come to an end, and that we at least have the opportunity to move forward. Just how we will move forward is another question.

    I think it also puts our current president in a very sticky position to go after the previous administration in a direct manner. There’s a very fine line between doing what is right for the nation and vengeful politics. Perhaps the best thing he could do is to put the information out to the public and wait: hope someone else brings the charges to the surface, and simply say nothing to defend nor accuse once the ball gets rolling.

    I’m also finding it is sadly a hard sell to convince people that torture historically does not work. Many insist that the latest acts or tactics have yielded information that could not be gotten reliably or in a timely fashion with any other approach. I know some will never be convinced, but any advice on how best to approach such ignorance?

  2. Rachel Ryback Says:

    I believe that torture is simply inhuman. I think that our last president did those people wrong, no matter what his reasoning was, & that he did his constitutes a great disservice, by showing the world we still engage in torture, & that it is okay. It is not okay. I hope to see the day when Bush shall have to answer for his war crimes. That in it self is a touchy subject, but I think a necessary one.

  3. Bluebear2 Says:

    Many insist that the latest acts or tactics have yielded information that could not be gotten reliably or in a timely fashion with any other approach.

    That’s in part because we still have Dick Cheney running around spouting his lies and spinning his webs of deceit and the mainstream press is following him around like a pack of puppy dogs, parroting his every word without any assessment whatsoever!

    And the likes of Limbaugh, Hannity and Coulter…

  4. In the last few weeks, I have posted some two dozen items on the tangled mess of issues related to Guantanamo, waterboarding, etc. So I decided to sweep the whole thing into one pile, and see if the big picture makes any sense.

    Here are the facts that we have in fact been able to establish.

    Waterboarding is illegal, it causes more problems than it solves, it actually makes the intelligence-gathering effort harder rather than easier, and is a dumbass idea.

    Cheney is a bottomless fountain of lies, fallacies, and fearmonger tactics; in particular, the notion that the Bush crime family made us more safe and Obama makes us less safe is demonstrable nonsense, and the notion that closing Guantanamo puts us in danger is also poppycock. And virtually all his bullcrap can be shot down using Republican sources.

    The GOP jihad against Pelosi is also loaded with proveable lies and fallacies.

    Now, the details.


    Waterboarding is torture, and illegal. For that we rely on Title 18 of the U.S. Code, the Uniform Code of Military Justice, the Geneva Convention, and some other rules you don’t get to break. A rightwing radio host who had insisted that waterboarding isn’t torture agreed to be waterboarded – and changed his mind in exactly six seconds. McCain also refuted Cheney’s screeching on the waterboarding issue. Bob Barr, the arch-conservative who led the effort to impeach Clinton, says torture is illegal. Even Reagan jailed cops who waterboarded prisoners.

    The danger of using torture and other such nonsense in a system with virtually no adult supervision is made vivid by the fact that a hundred of our detainees have already died in custody, and a third of them are already confirmed or suspected homicides; meanwhile one interrogator who hated the notion of torturing people committed suicide; details of the incident were covered up by the Pentagon. Meanwhile the Senate Armed Services Committee shot down Cheney’s claim that the abuse at Abu Ghuraib was the work of rogue guards not sanctioned by any higher authority.

    **UPDATE** — Here is a professional interrogator, neatly destroying theGOP arguments about torture. He makes clear the danger of sending untrained interrogators to torture people with no actual rules of engagement; one of the interrogators killed herself rather than torture prisoners. He notes that torture can actually interfere with effective interrogation techniques — once you start using both methods, it’s impossible to separate the good intelligence from the bad, which compromises all the intel, good and bad.


    Cheney has been spouting rather a lot of lies and logical fallacies, in addition to the big ones on waterboarding, Guantanamo etc. Bush’s own Pentagon people shot down Cheney’s claim that Saddam was linked to Al-Qa’ida and other terrorists; the one big-name terrorist who managed to get to Baghdad…was killed by Saddam. Cheney claimed that the Bush gang moved decisively against al-Qa’ida and the Taleban, ignoring the fact that the leaders of both groups are thriving because the Bush administration was too obsessive about Iraq. Cheney implied that Obama was at fault for blocking the release of key documents…It was actually an executive order by Bush. A number of Republicans have said they want Cheney to shut up.


    Cheney falsely claimed that the Director of National Intelligence backed him up in claiming that torture yielded valuable intelligence we wouldn’t have gotten otherwise. A CIA investigation showed no evidence that the torture yielded anything valuable. Bush’s FBI Director also rejected the idea that we got valuable intelligence. The claim that torture yielded information which prevented an attack in LA – also a lie, already debunked. Torture actually hurts the intelligence effort: two detainees admitted that they gave inaccurate intelligence just to avoid being tortured – the false intelligence pertained to the mythical Iraq-terror link which Bush and Cheney wanted so badly to establish.

    Also, Cheney stressed the importance of getting good intelligence while omitting the fact the Bush gang regularly ignored or fudged the intelligence they did get.

    Stopping the torture program doesn’t make us less safe. If it did, the Bush gang wouldn’t have stopped it five years ago, would they? Their own actions belie their words. Likewise Bush’s Homeland Security Secretary, Tom Ridge, refuted Cheney’s claim that Obama made us less safe, and Bush’s Director of National Intelligence shot down Cheney’s claim that releasing torture-related memos made us less safe. Bush’s generals refuted the notion that stopping the torture, or even talking about the torture issue, means we’re not supporting our troops – the generals said the torture itself is fostering terrorism and endangering our troops. And lying about it and concealing it isn’t helping our tattered credibility either.


    The Guantanamo detainees are not, as Cheney claims, the worst of the worst. The Bush gang stupidly offered a cash reward in the streets of Afghanistan for terrorists, no proof needed, so any local Afghan with a gun could run out and grab anybody even remotely Arab-looking, kidnap him, and collect the money. An overwhelming majority of the guys we grabbed are innocent of anything, and even the CIA admitted it way back in 2002. The New York Times reported that the released detainees were rejoining the jihad, but it was an invalid report and they had to backtrack.

    If there were evidence against these guys, Bush would have taken them to court. Instead Bush was caught hiding evidence that proved the innocence of some detainees. A court spanked the Bush gang for that – it’s illegal. Privately, the Bush administration admitted to the Germans that some of the detainees were innocent – but resisted saying the same thing to the American people.

    The claim that Obama is endangering us by closing Guantanamo is ridiculous. Even assuming these guys are real terrorists, which in most cases they’re not – you know how many people we have in American prisons who are genuinely dangerous? Proven to be dangerous with actual evidence?

    Cheney has selective amnesia on this issue. He slammed Obama for the effort to ship detainees to other countries…a process begun by Bush and Cheney. Bush and Robert Gates, both Republicans, refuted Cheney on Guantanamo; Bush, Rice and Gates were working to shut down Guantanamo before Obama ever got to the White House.

    [**UPDATE** from AFP: Gates said in an interview that opponents of Obama’s decision to close the “war on terror” prison at Guantanamo were engaging in “fear-mongering,” a reference to Cheney’s stance on the issue. ]


    Two things which have been established firmly, are that the CIA has lied repeatedly to Congress, and that Pelosi did not know about the waterboarding as early as the Republicans claim. Kerry, Obey, Graham, Rockefeller, Specter, Fox News, House Republican leader Boehner, leading Republican Hoekstra pointed out the CIA’s lies to Congress. In fact the CIA is being investigated now, for lying to Congress. It has been established that the CIA lied about the briefings on the interrogations, and four of the above Congress members already have specifically refuted the claim that Pelosi was briefed about the waterboarding. Both the current CIA boss and Bush’s former CIA boss Porter Goss were pressed to back up the GOP accusations against Pelosi; even Goss, a rabid arch-conservative who hates everything Pelosi stands for and would love to see her destroyed, backpedaled rather than accuse her on this point. One GOP investigator not only admitted that Pelosi didn’t know about the torture, but also faulted her for not asking more questions – can’t have it both ways, guys! A logical fallacy.

    Another logical fallacy by the GOP: Bush’s crimes are not extenuated by anybody he claims he told about it. Telling somebody you’re committing a crime doesn’t make it legal: it makes it a criminal conspiracy.
    Another fallacy: that Pelosi should have stopped the torture. Setting aside the fact that she didn’t know it was going on, she wasn’t even Speaker when all this happened – in fact she was in the minority party, during a time in which the minority party was barely allowed to eat in the cafeteria and use the toilets in the House chamber, let alone demand an investigation or legislation. Furthermore the Bush gang made clear time after time that they intended to ignore any Congressional input with respect to any issue which, in their view, infringed upon the national security prerogatives of the executive.
    Another fallacy: how can the Republicans simultaneously insist that there is no scandal, and that Pelosi is implicated in…the non-existent scandal? “Pelosi should have stopped us even though we did nothing wrong!”?

    Newt screeched a stream of insults at Pelosi and demanded she resign. Other Republicans demanded she apologize, or be impeached, etc etc. A new GOP ad shows Pelosi being shot. Classy bunch.


    So here’s the part I don’t understand yet.

    The facts are easy to establish on these issues: the GOP knows that if they push this, it will turn into a year-long probe into Bush’s crimes and follies, a total disaster for the GOP, and in the meantime they can’t gain any traction on the issues they could actually win on, like spending. An even bigger hazard: a number of former Bush administration officials have admitted that the aim of the torture was to force detainees to falsely accuse Saddam of links to terrorism in time for the 2002 elections – a full exploration of that issue could actually kill the party dead, dead, dead. So why are they doing this?

    Perhaps they know their other issues are weak, as evinced by the way the attack on Obama’s spending devolved into the pathetic tea-party fiasco which had no effect whatsoever on the popularity of Obama or his policies.

    Perhaps they’re worried about the coming health care battle, and want to use a side issue like this to soften him up first.

    Perhaps the Pelosi thing is driven by the fact that this bunch of reactionary dead white males like beating up on girls, particularly Democrats: not long ago a Bush administration official admitted that they handled Katrina the way they did because their main aim was to make Kathleen Blanco look bad and beat her up a little. That, not managing the crisis response, was their main focus. But directing their fire at Pelosi now is silly: she and Obama are the two Democrats who are completely secure in their positions (contrary to the precarious position of Reid), and attacking Pelosi gets them nothing – not even a chance to alter the balance in the power in the House

    **UPDATE** — The fact that the GOP is targeting Pelosi because of her gender, was driven home forcefully when they ran the ad allegedly attacking her leadership skills — and portraying her as James Bond babe Pussy Galore. And then shooting her.

    Perhaps they just want to fire up the GOP base, to show that at least the Gestapo wing of the party, with all their sledgehammer political tactics, is still alive and kicking. The only things which can be relied upon to spin up the base are fear and hate, so going that route may just be force of habit for the gauleiters of today’s GOP. But that also alienates the all-important moderates and independents, two groups which the Republicans have inexplicably showed no interest in wooing this spring.

    Perhaps they interpreted Obama’s expressed intent to avoid a partisan fight on these issues as a sign of weakness: “If he says he won’t fight on this, let’s just keep punching him in the teeth until he changes his mind. Bloody him up a little.” That strategy would be pretty ludicrous because if the repeated Republican harassment impelled Obama to pursue these issues he could destroy the Republicans, but as long as he continues the arm’s-length stance, they can keep taking pokes at him, and at Pelosi.

    Perhaps they have no coherent party strategy at all, reflective of the continuing civil war within the GOP – some Republicans want Cheney to fight on, others want him to shut up, some want an investigation into all this, others dread it. Steele wants a probe into all these issues, but he’s an idiot: Boehner was out there insisting that Pelosi apologize, but when he was asked whether he wanted an investigation, he backpedaled. Some Republicans threatened Eric Holder (perhaps they think blacks are weak like women…?); they told him that if there is an investigation, they will fight tooth and nail to smear any Democrat they can, the way they’re doing to Pelosi. How they would make such nonsense work is debateable: perhaps they would go to the old standby – blame Clinton for everything.

    So the Republicans are gambling on a laughably fallacious campaign to try to exploit an issue which could very easily blow back and kill their party, and no one can figure out why. As Herman Wouk would say, giggling idiots juggling dynamite.

    It is a puzzlement.

    Actually, we do know one reason why Cheney went insane and screeched a bunch of desperate nonsense in that speech, even though a lot of Republicans want him to shut up and go away. As his daughter admitted to Fox, Cheney did it because he fears prosecutions are coming.

  5. […] sentence: if you trust the rule of law, you don’t need to act in ways that would make Jesus weep. Torture…An Unnecessary Post, Part Two (The prehistory edition) « The Inverse Square Blog   « But it’s none too pleasant pulling hairs out of your kid’s butt […]

  6. […] Torture… An Unnecessary Post, Part Two (or was Isaac Newton a torturer?) […]

  7. Mark Francis Says:

    Torture was used under Civil Law (as in Scotland) extensively because proof of guilt depended upon confession, whereas English Law depended on a jury. Torture was carried out under “Royal Prerogative” not Common Law & its purpose was NOT to obtain a confession but “discovery” of information. England’s only rack at the Tower Hence was imported from French monks (!) by the Duke of Exeter during an abortive project to introduce Civil Law in the reign of Henry VI (Hence its name “The Duke of Exeter’s Daughter.”)
    For instance, Guy Fawkes was caught red-handed so any confession was superfluous, but he was racked in order to give away the names of Catesby & the other plotters.
    After formal abolition in 1642 other means of physical pressure were used which were called something other than torture, by taking a very narrow definition of torture.
    Hence Condoleeza Rice can deny the US tortures anyone by calling waterboarding “enhanced interrogation techniques”. The British Government in Northern Ireland were convicted of torture but this was redefined as “extreme maltreatment” on appeal.


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