Not too many years ago, many of us would have been surprised to hear a nominee for Attorney General of the United States being questioned about his views on torture. Today, not so much. The question of torture—how we define it, whether we engage in it, whether we “render” suspects to other nations for torture abroad—has become a regular topic of speculation and conversation.
We all know that torture has been disclaimed by virtually every nation in the world and is a clear violation of international law. Most of us think that it probably goes on nonetheless. And we certainly think that something like, if not quite, torture has been used on enemy combatant detainees if the procedures involved produce pain that is not “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death” (to quote an August 1, 2002 memo from the Department of Justice’s Office of Legal Counsel).
Torture has, of course, been around for a very long time. It was practiced by the ancient Greeks and Romans and, until the Enlightenment, it was an accepted practice in the legal systems of many European nations. But it is also a practice against which the Anglo-American legal tradition has—in most instances—defined itself.
The modern practice of torture goes back some eight hundred years. In the thirteenth-century, Azo of Bologna provided an admirably succinct definition (Office of Legal Counsel lawyers, take note). “Torture,” Azo said, “is the inquiry after truth by means of torment.”
The revival of classical learning in the universities of medieval Europe brought with it new attention to the Roman law of torture. In 1215, the Fourth Lateran Council of the Catholic Church forbade the participation of clergy in modes of proof, such as the ordeal, which relied on theories of divine intervention. Continental Europe turned to the confession as a new definitive form of proof. Torture was an especially effective means of extracting confessions from suspected criminals, even though commentators of the time also recognized that confessions so produced were inherently unreliable. This is why a confession had to be repeated away from the place of torture (although if a confession was recanted, another trip to the chamber would probably be in store). England, which had already been experimenting with juries of indictment and the “grand assize” (a panel of jurors used in land disputes), turned to trial by jury. The discovery of truth thus moved to the knowledge of the community, not the body of the accused.
By the fifteenth century, the English jurist Sir John Fortescue was decrying the practice of torture in his De laudibus legum Angliae (“In Praise of the Laws of England”). “Such confessions, alas! many. . .wretches make, not because of truth, but only because compelled by irresistible torments,” Fortescue wrote. But Fortescue’s outrage went only so far. England could shun torture because of its natural and material wealth. Its prosperous subjects were “more apt and disposed to investigate causes which require searching examination than men who, immersed in agricultural work, have contracted a rusticity of mind from familiarity with the soil.” In Fortescue’s assessment, many other countries used torture because they simply didn’t have enough subjects who could be trusted to discover the truth. These countries were not to be condemned, for the “superiority of the law of England does not spring from defects of the other [countries’] law, but is caused only by the fertility of England.”
As England moved from the middle ages into the Renaissance, it also entered what the legal historian John Langbein has described as its “century of torture” under the Tudor monarchs. Even then, however, torture remained at the margins of English law. During the reign of Henry VIII (before the split with Rome), Henry’s chancellor, Sir Thomas More, was accused of torturing suspected heretics. In his Apology, More denied the charge, but did admit that he subjected other criminal suspects to “well deserved pain” to discover and repress other “desperate wretches” before they could escape abroad. After the split with Rome, as the Protestant English monarchy faced constant threats from a Catholic Europe eager for its downfall, England began to issue a limited number of warrants to torture. But when Sir Edward Coke wrote his Institutes of the Laws of England in 1628, he could still argue that “there is no law to warrant tortures in this land, nor can they be justified by any prescription, being so lately brought in.” Coke knew whereof he spoke. In his capacities as Solicitor General and Attorney General, Coke had himself been named as a commissioner to torture in six warrants. But to Coke’s credit, he used his Institutes to establish that, despite its recent introduction (“being so lately brought it”), torture had no place in English law.
Here in the United States, a number of constitutional provisions make clear that the founders intended to follow England’s lead in prohibiting torture. (In this respect, it has been good to hear Attorney General nominee Michael Mukasey state that torture is not constitutional, even if there is some uncertainty about how to define waterboarding). Trial by jury was retained, a right against self-incrimination was enshrined in the Fifth Amendment, and the Eighth Amendment protected against the infliction of “cruel and unusual punishments.”
Even with our constitutional protections, torture maintains a shadowy presence in the United States. Questions about interrogation practices used in covert activities, for example, have lingered for years. Closer to home, here in Chicago there is now clear evidence that police routinely tortured suspects during interrogations in the 1970s and ‘80s. But the fundamental illegality of torture has never been in question.
This is what has been so distressing about recent efforts to create loopholes in the prohibition of torture. You simply can’t define what does or does not constitute torture. Again, this is a fact that has long been recognized by practitioners of torture. Fourteenth-century legal commentator Jehan Boutillier, author of the Somme rural, noted that if a person is “suspected [of a crime] by strong presumption, [the judge] may and shall put him to torture according to his physique, for one person can stand more severe torture than another.” In other words, just because you’re avoiding pain equivalent to organ failure does not mean that you’re not torturing someone. Trying to say otherwise sounds disingenuous, at best.
The views expressed in this article are those of the author and have not been approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the policy of the American Bar Association.