25 years after the WTC: Do torture methods make sense?

Many years have passed since the world condemned secret prisons and the "enhanced interrogation techniques" used by the CIA. Yet, the belief persists that the prohibition of torture is solely a matter of decency. Presenting this fundamental legal and human achievement as justified only by contemporary sensitivity to suffering makes it easy for those who reject the Enlightenment legacy of humanitarians – and such people, especially lately, are not lacking – to ignore it.

Especially when public safety is at stake, as it was during the "war on terror." It may seem that this is the time for tough measures rather than gentle treatment of the accused because the stakes are too high. In reality, the ban on torture is not only about concern for the well-being of the interrogated but also supported by solid neuroscience and the fact that, in the current form of criminal procedure – unlike in early modern times – torture does not serve as an admissible evidence method.

From divine courts to torture. How violence became evidence

Torture in criminal proceedings spread in the late Middle Ages. Earlier, medieval trials primarily relied on oath and ordeals, or divine judgments. Oaths were sworn with co-accused and were more a display of clan solidarity and a tool to maintain group cohesion than a means to uncover the material truth. Divine courts took various forms – sometimes one had to hold burning iron, and the outcome of the trial was judged by how well the wound healed. Another test involved swallowing a consecrated piece of bread without choking. Perhaps the most famous was the water ordeal, which persisted until the witch hunts of early modern times. All these shared a common feature – they left the judgment to God, who was supposed to declare innocence.

Interestingly, the papacy itself long viewed this deep religiosity with disapproval because ordeals often yielded blatantly false answers. When a man was hanged for murder because he failed divine judgment, and his "victim" was found alive and well after two weeks, it required intense mental gymnastics to justify that God was acting mysteriously and that the hanged man must have had a guilty conscience. The end of ordeals came with the strengthening of papal authority through the centralization of church power – they were banned at the Fourth Lateran Council.

Divine courts left a gaping void in available evidence. This gap was filled with torture, which had at least the advantage over ordeals that it reached into the mind of the accused, which undeniably existed. This is one of the few positive things that can be said about torture.

Guidelines for 16th-18th-century judges listed, among other methods, strappado. The interrogatee was lifted by the arms tied behind the back on a pulley to the ceiling, and shoulders were dislocated. Sometimes, to add variety, heavy weights were attached to the legs or the pulley was released to abruptly stop the falling body just above the ground, causing further joint dislocation (which had to be done carefully, as the third or fourth fall generally resulted in death, and that was not the goal of the procedure). Another well-known technique was brodequin. The idea and execution were very simple – the victim’s legs were placed between three wooden plates tightly bound with a strong rope. Then, where possible, wedges were hammered in, crushing the knees. Over time, the legs of the interrogated turned into pulp of flesh, marrow, and bones, potentially resulting in permanent disability. Unlike today, at that time, it was not a concern whether torture left marks on the body, as it was a widely accepted, codified method of interrogation.

Their presence in investigations was partly dictated by the form of the modern inquisitorial procedure. It migrated from ecclesiastical courts into secular law. Its characteristic features included: initiation of proceedings ex officio by a state official, secrecy and written records, severely limited right to defense, and the use of so-called legal proof theory. It was this last that made torture a popular evidence method.

Confession as the “queen of evidence”

Legal proof theory is the opposite of the situation where a judge freely evaluates evidence, as is the case today. It is likely that its development was driven by uncertainty that divine courts could be replaced by fallible humans. The judge’s discretion in evaluating evidence was minimized, assigning numerical values to individual testimonies and clues. To convict someone of death, a full proof was required, which could consist of testimonies from two eyewitnesses (each worth half a proof). Finding two eyewitnesses to a serious crime is a significant challenge, so fortunately, the investigator’s options did not end there – a full proof was a confession, called at the time the “queen of evidence.”

Considering how much emphasis was placed on this last element, it is easy to understand the importance and usefulness of torture in inquisitorial procedures. Today, we know well that a confession is far from being the “queen of evidence,” because many people, for example, might confess to a high-profile murder just to attract attention. Thanks to psychology and neuroscience, we also understand how easily memories can be influenced under stress or how false confessions can be coerced. Although skepticism about the fact that people under pain might admit to things they did not do was already present in early modern times, the dominance of legal proof theory long kept courts from exploring other methods and led to the use of torture to extract confessions – regardless of their truthfulness. It was only with the development of alternative punishment methods for serious crimes and the creation of procedures in the 17th century to secure additional evidence, so that even without a confession a defendant could be convicted, for example, to galleys, that the slow decline of the procedure began, in which torture was essentially necessary for conviction. This allowed the Enlightenment to advocate for their abolition.

Modern investigators reasoned that torture would make it easier to obtain the full evidence needed for a death sentence. This does not mean that torture is an effective means of acquiring truthful information relevant to the investigation. Quite the opposite, because, as a rule, inducing inhumane stress degrades the brain centers responsible for memory – precisely those that an interrogator should want to keep in optimal condition.

The myth of effective torture in the “war on terror”. The CIA received half-truths and false leads

Torture propaganda during the war on terror was poured out in streams from Hollywood, where the protagonist often faced scenarios rarely seen in real life – e.g., holding a person who knows where a bomb will explode in half an hour. In such cases, the interrogated person, after a few blows to the face or waterboarding sessions, would reveal a secret, saving the city. Reality is much less exciting. Jose Rodrigues, head of the CIA’s National Secret Service, admitted that “enhanced interrogation techniques” require about thirty or even sixty days to start “working.” We can see what “working” means when we try to imagine our mental state after eleven days of sleep deprivation and whether we would have anything coherent to say while hallucinating.

Arguments in favor of torture often cited that it helped discover Osama Bin Laden’s location. Khalid Sheik Muhammad (soon to stand trial as the main architect of the September 11 attacks) was said to have revealed it. He was subjected to waterboarding nearly 200 times, which supposedly led the CIA to Bin Laden’s key courier. This story is pure propaganda of the agencies – in reality, Bin Laden’s hideout was discovered thanks to interrogation of another witness who was not tortured. Khalid Sheikh Muhammad later admitted that during “enhanced interrogations,” he spouted completely useless and false information just to get some peace for a while.

During torture interrogations, speaking becomes an instinct because it promises a moment of relief. Since the cognitive capacities of the detainees during simulated drowning are drastically limited – they mainly focus on not drowning – what they say is often a chaotic jumble of half-truths and false leads. Some of it may sound very convincing and be extremely detailed – Khalid Sheikh Muhammad recounted a story about an Al-Qaeda associate who moved to Peshawar, got married, and ceased activities for the organization (which he did not do, nor did he move to Peshawar or get married).

Neuroscience debunks the myth of torture’s effectiveness. Extreme stress destroys memory and produces confabulations

The fact that such information is a product of torture interrogations aligns with what neuroscientists say about how the brain functions under extreme stress. Considering that CIA officials themselves admitted that the first effects of “enhanced interrogation techniques” often take two months to appear, this cannot be called an economical shortcut. It is, however, certainly a satisfying solution for someone who, first, is a sadist, and second, likes to waste time and public money listening to useless babble and confabulations.

This time could be better spent on interrogations that do not induce amnesia in the detainee (such as the effects of sleep deprivation), because such cognitive impairments are not beneficial to anyone. It seems that the defense of torture by some politicians was a remnant of a religiously motivated belief from the early modern period, which assumed that the human will, by the original sin, is deeply corrupt. Therefore, procedures that force the body to reveal the truth through uncontrolled reflexes were considered the most effective. The belief that a tortured person will honestly scream out everything they know, instead of spouting random nonsense, echoes a centuries-old superstition.

In 2014, the U.S. Senate Committee declared the CIA torture program ineffective, accusing the agency of concealing the extent of its use and of unjustified claims about its effectiveness. Of course, these practices have not disappeared from the operations of many agencies worldwide – they are routine in Russia or in occupied territories by Israel. In many cases, they are simply regarded as mindless repression and a way to vent on suspects. However, the widespread belief persists that they are highly effective in obtaining information, and that the failure to use them is a limitation of the state apparatus, a compromise with humanitarians who do not understand real life.

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Books I used: H. Langbein, Torture and the Law of Proof.; L. Silverman, Tortured Subjects. Pain, Truth, and the Body in Early Modern France; S. O’Mara, Why torture doesn’t work; R. Bartlett, Trial by Fire and Water. Medieval judicial ordeal

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