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Tortured logic

By Harvey Silverglate

One of the more silly pieces that I’ve read in recent years appeared in, of all places, the usually polished and interesting "Ideas" section of The Boston Globe, to which I invariably turn every Sunday. In an opinion piece on the first page of that section, Darius Rejali, a political science professor at Reed College and the author of a forthcoming book (Torture and Democracy) argues that while we like to think of torture as “mainly the province of dictators and juntas – the kind of thing that happens behind the iron doors of repressive regimes,” in fact, “it is the democracies that have been the real innovators in 20th century torture,” modern torture “is mainly a democratic innovation,” and we have “exported [new torture techniques] to more authoritarian regimes.”

Of course, the idea underlying Rejali’s argument is relatively unobjectionable within the academic discipline that studies torture, in both its ancient and modern forms – something I explore more below. For example, several years ago, University of Wisconsin professor Alfred McCoy published A Question of Torture, which describes how the CIA developed and later spread new torture techniques during the cold war. Around that same time, McCoy wrote an op-ed in the Boston Globe arguing that this history of what Rejali calls “innovation” led to these methods being used in Abu Ghraib:

“For more than 50 years, the CIA's no-touch methods have become so widely accepted that US interrogators seem unaware that they are, in fact, engaged in systematic torture. But now, through these photographs from Abu Ghraib, we can see the reality of these techniques. We have a chance to join fully with the international community in repudiating a practice that, more than any other, represents a denial of democracy.”

Hopefully, most supporters of democratic rights (not to mention civil liberties or human rights) would agree that torture “represents a denial of democracy,” which is what makes Rejali’s claim – that torture “is mainly a democratic innovation” – so bizarre.

On first glance, it is hard to make out what Rejali is actually arguing. Initially it appeared that he was trying to link the fact that certain torture techniques were developed in the West – such as electrotorture – with a conclusion that Western democracies were practicing torture more than authoritarian states elsewhere in the world. It seemed that this new technical savvy developed in the West was indicative of a culture that promotes and tolerates torture – the logical implication of the argument that torture “is mainly a democratic innovation.”

But the core of Rejali’s argument comes out only on repeat readings; the silliness of the article arises from the fact that his writing is sloppy, he is apparently self-contradictory, and he doesn’t follow through his conclusions.

Tracing the history of torture from the rack and screw through the nominal abolition of the practice, he concludes that “torture hasn’t really disappeared in the modern age. What have disappeared are forms of torture that leave marks.” Rejali then details the development of electotorture and its application in Seattle police stations; a magnetic device “that produces a high-voltage spark,” first employed “by the French colonial police” and popularized by the Nazis, later to be used in Vietnam and in Chicago police stations; stress positions like “forced standing,” as seen in the iconic Abu Ghraib photograph; and finally the use of waterboarding. But why are these “democratic” innovations? “[N]ewer, ‘cleaner’ tortures first appear in conditions of public monitoring, usually in democratic states,” he writes. “It is only afterward that we find authoritarian states adopting them.”

This point is astoundingly obvious: anyone who has thought with any depth about the problem of torture fully understands that while torture occurs with unnerving frequency in and by democratic nations – including, alas, our own, particularly in prisons as well as in such occasional netherworlds as the despicable American gulag in Guantanamo Bay – in fact, torture lives a very tenuous life in democracies. This has nothing to do with Americans’ inherent superior character, nor with citizens of democratic cultures generally being better than those unfortunate enough to live in dictatorships. We have learned enough from our history, and even from our present administration in Washington, to know that we’re the same human beings that “they” are.

But we also know from history that social and political institutions make all the difference. They differentiate civilized societies from their opposite. As Professor Rejali acknowledges, torturers in democratic societies take care to keep their activities secret, and even employ methods that leave no marks on the body. Unfortunately, even though he was given quite a few column inches in which to write his piece, he never explains why this is ultimately the case – only referring offhandedly to “conditions of public monitoring” that precipitate these “‘cleaner’ torture[]” techniques. This omission is all the more remarkable given the underlying reason why this occurs: in democracies, the free sectors of civil society – the free press, humanitarian organizations, the organized bar, civil liberties groups, medical associations, religious benevolent institutions, and on and on – exert constant and significant pressure every time they learn that the CIA, prison guards or some warden, some sadistic private school headmaster, a group of wayward police officers, or sometimes a whole department engages in torture.

(The fear of oversight can even lead agents of a Western intelligence agency to destroy videotapes of their torturing captives, for fear of discovery, investigation, disgrace, even prosecution. The prospect of being labeled hostis humani generis – enemy of all mankind – as the U.S. Court of Appeals for the Second Circuit described the torturer in the 1980 case Filartiga v. Pena-Irala – is enough to make torturers do incredible things to hide the visible effects of their truncheons.)

So if Rejali’s underlying claim is ultimately right, why do I think it’s a silly article? Because it’s painfully and frustratingly inelegant. If he’s trying to argue that the oversight role of civil society has forced modern democracies’ torturers to hide their efforts and develop “cleaner” techniques, he simply doesn’t say that. Instead, he claims that “the modern repertoire of torture is mainly a democratic innovation,” in which “the role of democracies is central,” leading susceptible readers to think that he’s actually blaming the democratic form of government itself, for some bizarre reason, for the institution, and spread, of torture. The Globe’s editorial staff is complicit in twisting the argument, tagging his headline with a sub-headline: “The surprising force behind torture: democracies.” And without examining whether torture is a product of sadism inherent to human nature, he risks raising questions – whether or not he means to – about whether democracies are just as bad as authoritarian states when it comes to torture.

The other major problem with Rejali’s article is that he is apparently self-contradictory. If on the one hand oversight leads to torturers developing “cleaner” techniques, how can he turn around and argue that more oversight will stamp out these torture techniques? If Rejali has correctly identified the direction of the causal arrow, shouldn’t more efforts by civil society – such as “[t]he American Bar Association’s 1931 report [on torture, which] transformed American law and policing” – cause torturers to become even more secretive? It’s not clear how, if “torturers and their apologists really do care” what people think about them, increased oversight will lead to “an end of this sorry history” rather than more refined techniques.

I’ve read a few bad dissertation proposals over the years, in which a hapless graduate student – desperate to find a worthy topic that’s not already been beaten to death by denizens of the academic enclaves – throws together a few ideas from the traditional literature and obfuscates them to make the topic sound more sexy and original. Rejali is no newly-minted Ph.D., but it seems he falls into this trap, recalling writer Barbara Grizzuti Harrison’s observation that “there are no original ideas.” It’s quite obvious that where a government is predisposed to want to torture, robust oversight by civil society will force torturers to go underground and hide their practices. If that’s his point, I wonder whether it’s a sufficiently original “idea” to warrant being placed in the “Ideas” section of the Globe – which could have mitigated some of the silliness of Rejali’s work by running a critique of the article next to it, as they have sometimes done in the past on the last page of the section. Such a critique could have been invited from someone with actual experience dealing with torture and torturers – in my own field, criminal defense lawyers, prosecutors, and judges almost all have such experience, and all understand full well the powerful role that the free institutions of civil society play in deterring official lawlessness and cruelty. Academics sometimes are not the most qualified people to throw light on such real world matters.

(With a tip of the hat to James F. Tierney for helping focus my myriad problems with the Globe piece about which I’ve blogged here.)

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