A Moral Military

10. Torture

10 Torture T ony Lagouranis, who spent a year in Iraq as a U.S. Army military interrogator in Abu Ghraib and other prisons, says that he “noticed something very disturbing. People are absolutely fascinated by torture. As soon as someone learns that I was an interrogator, I can see him formulate the next question. . . . ‘Did you torture anyone?’ It comes from people all across the political spectrum, from people both disgusted by torture and from people who actually want the troops to do it.” 1 I’ll leave to the psychologists the question of why people are so fascinated by torture. This chapter will deal with moral and legal aspects of the military use of torture. The extremes of torture are (1) the civil liberties view that no violation of basic human rights can ever be justified; and (2) the pragmatic view that measures are to be judged by their effectiveness. Significant voices in this debate are those who try to find a middle course, such as Michael Ignatieff2 and the author (S. Miller) of the article on torture in the Stanford Encyclopedia of Philosophy. In the last decade, particularly since the military action against Iraq, there has been a significant increase in the number of books and articles on torture, as events such as the scandal at the Abu Ghraib prison force the United States and the world to rethink their views on the subject. The Evolution of Torture The use of torture is hardly new to the twentieth century. The Bible calls the reader to “Remember those in prison as if you were there with them; and those who are being maltreated [tortured?], for you like them are still in the world.”3 Torture was common in ancient Greece and Rome and became less frequent after the rise of the Roman Empire. Between the twelfth and fifteenth centuries the Roman Catholic Church used torture on accused heretics. Where we use the word interrogation, the Church used inquisition: By the mid-thirteenth century the Papal Inquisition applied to heretics the Roman law on treason, for it was assumed that the accused could be guilty of the highest treason of all, namely, treason to God and the faith. Hence a heretic was presumed to be guilty, was deprived of adequate legal defense, could not know and challenge his accusers, had no public trial, and was tortured if he refused to confess. Although the Papal Inquisition was never established in England, in the Tudor Age men accused of treason to the king suffered a similar kind of treatment. No wonder that in reaction to this, in the Tudor Age, the maxim arose which later became part of our Fifth Amendment: no man shall be compelled “to accuse himself” or “to be a witness against himself.”4 Apparently it was the revulsion against torture that led the framers of the Constitution to write the part of the Fifth Amendment that makes it unconstitutional to compel self-accusation. The amendment is not restricted to citizens alone: It insists that “no man” is to be compelled, or forced, to be a witness against himself (in a criminal case). That appears to cover both POWs and protected persons. To continue with some of the history, Nonetheless it was Roman law, not the English common law, which first laid down the principle that normally the man accused of a tort or a crime should be presumed innocent. Implied as it is in the Magna Carta, the presumption of innocence was first literally stated, it seems, by Jean Lemoine, a canonist and cardinal in the time of Pope Boniface VIII [1294–1305]. Making use of StoicRoman -Christian ideas of legalists and canonists, he declared that every man accused of a crime had the full right to a public trial and to full legal defense by lawyers, and documents, and witnesses. For every man, he declared, “is presumed innocent until proved guilty” (qui libet praesumitur innocens, nisi probetur nocens, . . . )”5 The principle of “innocent until proved guilty at a trial,” and the Fifth Amendment’s objection to compelling self-incrimination from “any per154 / Chapter 10 son,” seems to apply to prisoners and protected persons and to forbid torture . The question of self-incrimination is crucial, because one major goal of torture is often to compel persons to testify against themselves. (Apparently we must choose between keeping a significant part of the...