Difference between revisions of "Interrogation and Torture Starting Point"

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(→‎Short History of Torture)
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III. Getting medieval: torture techniques
 
III. Getting medieval: torture techniques
 +
 +
 +
 +
The only record of torture methods used by the Greeks comes from their comic
 +
playwrights. For example, in the "Frogs" of Aristophanes, a character offers
 +
his slave's testimony, extracted through torture, as proof of his innocence.
 +
When asked which methods should be used to torture the slave, the character
 +
replies:
 +
In any mode you please.
 +
Pile bricks upon him: stuff his nose with acid:
 +
Flay, rack him, hoist him; flog him with a scourge
 +
Of prickly bristles: only not with this,
 +
A soft-leaved onion, or a tender leek.
 +
(Aristophanes, "The Frogs", written 405 B.C.E., translation available at http://classics.mit.edu/Aristophanes/frogs.html)
 +
 +
Many of the techniques mentioned in this passage remained in use for long afterwards.
 +
 +
The method of
 +
piling bricks upon the subject was notably still in use in England as the
 +
procedure of <i>Peine forte et dure</i>, used to coerce the defendant in a felony case
 +
into entering a plea of guilty or not guilty,  until it was abolished in 1772. (In English
 +
law, a convicted felon's estate would be confiscated by the state, but no conviction was possible
 +
if the defendant refused to enter a plea of guilty or not guilty. English courts overcame
 +
this loophole by pressing defendants with heavy weights until they either entered a plea
 +
or were crushed to death.)
 +
(http://en.wikipedia.org/wiki/Peine_forte_et_dure)
 +
 +
Flaying, as torture, involves the removal of a portion of the skin from the body. Flaying was
 +
also used as a method of execution, when a larger portion of skin was removed. (http://en.wikipedia.org/wiki/Flaying)
 +
 +
The rack, a torture device used throughout Europe, consisted of a frame with a roller at
 +
both ends. The victim's hands were affixed by a chain to one roller, and his legs to the other,
 +
and the torture consisted of turning the rollers to pull the chains in opposite directions,
 +
thereby placing tension on the victim's body, especially his joints, which could be dislocated
 +
or even ripped apart by sufficiently strong tension. When equipped with
 +
ratcheting rollers, the rack was a very precise instrument for administering gradually
 +
increasing levels of pain to the subject. (http://en.wikipedia.org/wiki/Rack_%28torture%29)
 +
 +
The process of "hoisting" a subject, more commonly known as "strappado" (or, in more modern
 +
usage, "Palestinian hanging"), consisted of
 +
binding the subject's hands together behind his back, and hoisting the subject into the
 +
air by an rope attached to his bound wrists. This technique causes intense pain, possible
 +
dislocation of the shoulder sockets, as well as long-term damage. (http://en.wikipedia.org/wiki/Strappado)
 +
 +
Flagellation, or "flogging", is any of a wide variety of methods of striking a victim
 +
with a flexible whip or switch, sometimes tipped with sharp ends to tear the victim's
 +
flesh. (http://en.wikipedia.org/wiki/Flagellation)
 +
 +
All of these tortures were clearly well-known from the time of Aristophanes. The Romans
 +
added their own inventions to the list: the <i>lignum</i> was a rack-like device to pull
 +
the legs apart, the <i>ungulae</i> consisted of flesh-ripping metal hooks,
 +
the <i>mala mansio</i> was the name given to imprisonment in a room too small for
 +
standing, sitting, or lying. (Peters, p. 35)
 +
 +
By the seventeenth century, new innovations such as the thumbscrew (a metal-studded
 +
vice for compressing the thumbs) and the legscrew (a larger variant of the thumbscrew to
 +
be applied to the legs) came into wide usage.
  
 
IV. Rise of torture: 12th-13th century Europe
 
IV. Rise of torture: 12th-13th century Europe

Revision as of 23:31, 3 December 2005

Back to Project Team Page: Interrogation and Torture Team

Torture and Interrogation

Fall 2005 White Paper Term Project for: UW CSEP 590 tu (Homeland Security / Cybersecurity) UCB PP 190/290-009

Team Members:

  • Barbra Ramos (UCB GSPP)
  • Christopher DuPuis (UW PMP)
  • Dennis Galvin (UW PMP)
  • Eiman Zolfaghari (UW PMP)
  • Sean David Cardeno (UCB GSPP)

The Paper as it is shaping up

Overview

Overall question: Under what circumstances, if any, should the use of torture to obtain information from prisoners be considered acceptable?

At present the United States is engaged in what it has termed the "Global War on Terror." In this effort many prisoners are taken by the US and its allies. Clearly some percentage of these prisoners may hold information which has the potential to: 1) prevent (or lessen the impacts of) terrorist acts against civillians; 2) prevent terrorist acts against military targets; 3) provide the means to break up the terrorist network(s); 4) provide the means to disrupt terrorist command and control activities. Similar situations may exist in many other areas of the world (Chechenya, Israel, etc) where a recognized government is "at war" with terrorist organizations.

The governments or occupying powers hold an assymetric relationship with the groups they are fighting. Decisions of the governments will be unilateral and any concessions toward humane treatment will not necessarily be reciprocated by the terrorist groups.

This paper does not directly examine issues of whether the detention of prisoners is justified, but rather the conduct of interrogation sessions and whether the use of torture in those sessions is ever justifiable.

Definitions:

  • Interrogate:
  • Torture:
    • Dictionary Merriam-Webster Online Dictionary
      • noun: 2 : the infliction of intense pain (as from burning, crushing, or wounding) to punish, coerce, or afford sadistic pleasure
      • verb: 1 : to cause intense suffering to : TORMENT 2 : to punish or coerce by inflicting excruciating pain
    • [18 USC 113C Section 2340 US Anti-Torture Act]
      • (1) "torture" means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
      • (2) "severe mental pain or suffering" means the prolonged mental harm caused by or resulting from -
        • (A) the intentional infliction or threatened infliction of severe physical pain or suffering;
        • (B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
        • (C) the threat of imminent death; or
        • (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality;

The definition of interrogate yields very little sense of the fact that subjects of interrogation do not generally want to divulge information. Interrogators often utilize coercive techniques to cause the subject to cede the desired information. These coercive techniques exist on a continuum from "direct questioning" through "torture" and "death" (Filarowski-Sheaks, Christina, Interrogation Policy & the Global War on Terrorism, Presentation to Terrorism Cybersecurity Class, Berkeley, California, 30-Nov-2005). Clearly this paper must examine the slippery slope between the extremes of coercive techniques.

Short History of Torture

I. Greece: torture of slaves and (some) foreigners

Starting in about the sixth century B.C., Athenian legal procedure placed great value upon the sworn testimony of an Athenian citizen, building much of their code of laws upon the idea that the honor and status of a citizen would compel him to speak the truth. As an additional inducement to speak truth, citizens found to have perjured themselves could be declared infamous and banished from the city. However, when the testimony of a non-citizen, such as a slave or a foreigner, was required, no such compulsion was recognized. Athenian law therefore provided a means by which the word of a person without honor might be made acceptable as evidence in a trial: torture. (Peters, 13)


II. Rome: torture of slaves, eventually grows to torture of lower classes and in cases of treason.


The Romans also used torture, and, like the Athenians, they placed restrictions on the class of people who could be subjected to torture. At first, the law absolutely prohibited the torture of freeborn citizens, and it provided greater protection to to the slave than the Greek laws by allowing only slaves who had been accused of a crime to be tortured. Furthermore, torture of slaves was restricted to criminal, rather than civil, cases, again reducing the threat of torture to the slave. (Peters, 20) However, these protections were gradually stripped away, first by allowing slaves to be tortured over monetary disputes, then by allowing freemen of "low estate" to be tortured, and finally in allowing freemen of both humble and noble class to be tortured in cases of treason. (Peters, 18)


III. Getting medieval: torture techniques


The only record of torture methods used by the Greeks comes from their comic playwrights. For example, in the "Frogs" of Aristophanes, a character offers his slave's testimony, extracted through torture, as proof of his innocence. When asked which methods should be used to torture the slave, the character replies: In any mode you please. Pile bricks upon him: stuff his nose with acid: Flay, rack him, hoist him; flog him with a scourge Of prickly bristles: only not with this, A soft-leaved onion, or a tender leek. (Aristophanes, "The Frogs", written 405 B.C.E., translation available at http://classics.mit.edu/Aristophanes/frogs.html)

Many of the techniques mentioned in this passage remained in use for long afterwards.

The method of piling bricks upon the subject was notably still in use in England as the procedure of Peine forte et dure, used to coerce the defendant in a felony case into entering a plea of guilty or not guilty, until it was abolished in 1772. (In English law, a convicted felon's estate would be confiscated by the state, but no conviction was possible if the defendant refused to enter a plea of guilty or not guilty. English courts overcame this loophole by pressing defendants with heavy weights until they either entered a plea or were crushed to death.) (http://en.wikipedia.org/wiki/Peine_forte_et_dure)

Flaying, as torture, involves the removal of a portion of the skin from the body. Flaying was also used as a method of execution, when a larger portion of skin was removed. (http://en.wikipedia.org/wiki/Flaying)

The rack, a torture device used throughout Europe, consisted of a frame with a roller at both ends. The victim's hands were affixed by a chain to one roller, and his legs to the other, and the torture consisted of turning the rollers to pull the chains in opposite directions, thereby placing tension on the victim's body, especially his joints, which could be dislocated or even ripped apart by sufficiently strong tension. When equipped with ratcheting rollers, the rack was a very precise instrument for administering gradually increasing levels of pain to the subject. (http://en.wikipedia.org/wiki/Rack_%28torture%29)

The process of "hoisting" a subject, more commonly known as "strappado" (or, in more modern usage, "Palestinian hanging"), consisted of binding the subject's hands together behind his back, and hoisting the subject into the air by an rope attached to his bound wrists. This technique causes intense pain, possible dislocation of the shoulder sockets, as well as long-term damage. (http://en.wikipedia.org/wiki/Strappado)

Flagellation, or "flogging", is any of a wide variety of methods of striking a victim with a flexible whip or switch, sometimes tipped with sharp ends to tear the victim's flesh. (http://en.wikipedia.org/wiki/Flagellation)

All of these tortures were clearly well-known from the time of Aristophanes. The Romans added their own inventions to the list: the lignum was a rack-like device to pull the legs apart, the ungulae consisted of flesh-ripping metal hooks, the mala mansio was the name given to imprisonment in a room too small for standing, sitting, or lying. (Peters, p. 35)

By the seventeenth century, new innovations such as the thumbscrew (a metal-studded vice for compressing the thumbs) and the legscrew (a larger variant of the thumbscrew to be applied to the legs) came into wide usage.

IV. Rise of torture: 12th-13th century Europe 

   A. Before torture: combat and the ordeal

   B. Roman canon law

      1. Law for capital cases

a. System of proofs b. Confession as prime proof c. Means of using torture to obtain confession d. safeguards against false confession e. getting accomplices 

      2. Law for lesser offenses

   C. Secular trials

      1. Continental Europe: follow Roman canon law & torture

      2. British Isles: Court of public opinion: no torture

   D. The Inquisition
      
      1. Innocent IV & Ad extirpanda: demanding torture of heretics

      2. Heresy: no safeguards against false confession, since no

objectively observable act has occurred 

      3. Denunciation of "fellow heretics"

   E. Extrajudicial torture
      1. King John and the Jews
      2. Tudors

V. Abolition of judicial torture 

  A. Replacement for Roman-canon system
     1. Alternative punishments, allowing "lesser offense" procedure
     2. Rise of jury system, as well as confidence in it

  B. Moral arguments from Voltaire et al

  C. Foucault's argument

  D. Result: everyone bans torture

VI. Survival of torture as an engine of state: then to now 

   A. Torture in law enforcement
      1. USA in 1930s
      2. South Africa
      3. Okhrana

   B. Torture in the interest of the party
      1. Nazi Germany
      2. USSR

   C. War
      1. Algeria
      2. Philippine-American War

   - Espionage

IX. Getting medieval again: modern torture techniques

X. More recent torture activity

Torture Legislation or Law

Geneva Conventions and Protocols

The Geneva Conventions comprise a set of four treaties and two protocols governing humanitarian treatment during the course of war. They are considered by many, the basis of international law relating to humanitarian issues. The treaties were last revised in 1949 in Geneva. The first Convention(footnote 1) deals with humanitarian concerns for armed force members wounded in wars and dates originally to 1864. The second Convention(footnote 2) deals with concerns of "shipwrecked" casualties in wars and is rooted in the 1907 Hague Convention X. The third Convention(footnote 3) is concerned with the treatment of prisoners of war, and was originally drafted in 1925 and adopted in 1929. The fourth Convention (footnote 4) relates to the humane treatment of "civillian persons" in times of war and dates originally to the 1907 Hague Convention IV. In 1977 two additional Protocols (I and II) were established addressing protection of victims of international(footnote 5) and non-international(footnote 6) wars respectively. The third and fourth Conventions and additional protocols are of most interest with respect to this paper.

The third Geneva Convention states in Part III, Section 1, Article 17 (emphasis added):

No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageious treatment of any kind.

The fourth Geneva Convention states in Part III, Section 1, Article 32 (emphasis added):

The High Contracting Parties specifically agree that each of them is prohibited from taking any measure of such a character as to cause the physical suffering or extermination of protected persons in their hands. This prohibition applies not only to murder, torture, corporal punishment, mutilation and medical or scientific experiments not necessitated by the medical treatment of a protected person but also to any other measures of brutality whether applied by civillian or military agents.

Protocol I states in Part IV, Section 3, Chapter 1, Article 75 (emphasis added):

  • 1. In so far as they are affected by a situation referred to in Article 1 of this Protocol, persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions or under this Protocol shall be treated humanely in all circumstances and shall enjoy, as a minimum, the protection provided by this Article without any adverse distinction based upon race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria. Each Party shall respect the person, honour, convictions and religious practices of all such persons.
  • 2. The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents:
    • (a) Violence to the life, health, or physical or mental well-being of persons, in particular: (i) Murder; (ii) Torture of all kinds, whether physical or mental; (iii) Corporal punishment; and (iv) Mutilation;
    • (b) Outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault;
    • (c) The taking of hostages;
    • (d) Collective punishments; and
    • (e) Threats to commit any of the foregoing acts.


It is interesting to note this quotation from Protocol I applies to all individuals "who do not benefit from more favourable treatment."


Protocol II states in Part II, Article 4 (emphasis added):

  • 1. All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions and religious practices. They shall in all circumstances be treated humanely, without any adverse distinction. It is prohibited to order that there shall be no survivors.
  • 2. Without prejudice to the generality of the foregoing, the following acts against the persons referred to in paragraph I are and shall remain prohibited at any time and in any place whatsoever:
    • (a) Violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment;
    • (b) Collective punishments;
    • (c) Taking of hostages;
    • (d) Acts of terrorism;
    • (e) Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault;
    • (f) Slavery and the slave trade in all their forms;
    • (g) Pillage;
    • (h) Threats to commit any of the foregoing acts.

Taken as a whole, the Geneva Conventions and Protocols protect human beings against inhumane treatment (including torture). No where in the documents is torture explicitly authorized for any purpose whatsoever under any condition. The conventions bind their parties to humane treatment in all situations of armed conflict.

In this light, at least a portion of the interrogation techniques reportedly legal under FM 34-52(footnotes 7, 8), might be illegal. The additional interrogation techniques(footnote 9) granted, then rescinded 6 weeks later, included "Use of stress positions," "Removal of clothing," "Use of phobias to induce stress," "Use of mild, non-injurious physical contact." Whether those techniques actually constitute torture is another matter entirely, but many of the additional techniques, infringe upon the "Outrages upon personal dignity, in particular humiliating and degrading treatment...." clauses of Protocols I and II.

In the conduct of the Global War On Terror, the United States has, perhaps, adopted a selective interpretation of the Geneva Conventions, and transgressed the spirit if not the letter of the Conventions. To be fair, the United States claims their opponents are not High Parties to the Conventions, and are thus not protected by them. Others, both in the United States and abroad, differ on this interpretation. Does this make the conventions any less important? Are we better off if there are no Geneva Conventions at all? The answer to both of these questions is clearly no. At least some benefit is provided from those protections, and George Bush has clearly stated:

Our country is at war and our government has the obligation to protect the American people. Any activity we conduct is within the law. We do not torture.(footnote 10)
At least, this statement is unequivocal. The definition of torture is omitted, and the actual effect on individuals conducting interrogations is not confirmable by neutral parties outside the actual interrogation sessions. Other evidence the Conventions and external pressure to comply with them are having an effect includes the following excerpt from DoD directive 3115.09:
It is DoD policy that: 3.1. All captured of detained personnel shall be treated humanely, and all intelligence interrogations, debriefings, or tactical questioning to gain intelligence from captured or detained personnel shall be conducted humanely, in accordance with applicable law and policy. [...] Acts of physical or mental torture are prohibited(footnote 11).
Clearly the US government is moving in the direction of the more commonly understood interpretations of the Conventions.

Footnotes (Geneva Conventions and Protocols)
  1. Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, 12 August 1949.
  2. Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949.
  3. Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949.
  4. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949.
  5. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
  6. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977.
  7. US Army, Field Manual 34-52 Intelligence Interrogation, Washington, DC, 8 May 1987.
  8. Filarowski-Sheaks, Christina, Interrogation Policy & the Global War on Terrorism, Presentation to Terrorism Cybersecurity Class, Berkeley, California, 30-Nov-2005
  9. Filarowski-Sheaks, Christina, ibid.
  10. Bush, George W, Address to the Press, Panama City, Panama, 07-Nov-2005.
  11. US Dept. of Defense, Directive Number 3115.09, November 3, 2005.

US Constitution and Amendments

US Anti-Torture Act (18 USC 113C Section 2340)

Landau Commission in Israel (1987-1999)

Coercive techniques in interrogation

  • What is the case for codifying or not codifying the use of coercive techniques in interrogation?
    • Dershowitz arguments in Ticking Bomb scenario
    • If coercive techniques explicitly allowed in law, do we have the "slippery slope" to torture?
    • If coercive techniques explicitly disallowed in law, will torture occur anyway? Just hidden? Officially denied?

Organizational use of torture

  • Police, Military, Anti-state forces (revolutionary, terrorist), Intelligence agencies.
  • Nations involved in torture (US, Russia, Israel?, China?)
  • Examples:
    • 1.US Military/CIA use of torture (Extraordinary Rendition, Abu Ghraib, Guantanamo)

Organizations monitoring torture

  • Human Rights Watch
  • Amnesty International
  • United Nations

Motivation for and efficacy of using torture in interrogation

  • Extract confessions.
  • Get names of accomplices.
  • Get strategic information?
  • Get details of terrorist plots.
  • Quality of information extracted?
  • Resistance to medieval techniques compared to resistance to modern techniques.
  • Torture isn't a fast process
  • Strategies against torture for terrorist organizations

Benefits / Repercussions of using torture

  • Diplomatic and Political
  • Decreased civil liberty?
  • Increased safety of society?
  • Public Reactions (internal, external)
  • Media image

Is there an ethical case for torture?

The ticking bomb (Dershowitz and others)

Torture in times of war, times of peace

How the work will be divided

The team assembled on Wednesday, 09-Nov, and we are still in the process of determining the overall shape of the topic to be covered in the paper. We have sketched a preliminary (subject to change) outline of areas to investigate. Each team member will then identify an area they will maintain primary responsibility for. As progress is made in each area, the information should be posted to the wiki, and other team members should offer constructive criticism, advice, etc.

We have a starting point reading / resource / reference list which will be added to over the course of the initial phases of the project.

So far, the following team members have expressed preliminary interest in portions of the overall paper:

  • Christopher DuPuis: "History of Torture", "Efficacy of Torture in Interrogation"
  • Dennis Galvin: "Torture Legislation / Law"
  • Barbra Ramos: "Nations involved in torture", or "Organizations Monitoring Torture"
  • Sean Cardeno: "Organizational Use of Torture"
  • Eiman Zolfaghari "Benefits / Repercussions of Using Torture"
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