The Political Language of Torture

Image Courtesy of The Liberty Hub

Torture is known as the use of physical force to extract information. It is consistently thought of in that manner, physical, whether it be pulling out fingernails or waterboarding someone. While torture expanded in recent years to being mental as well, in the form of temperature/food manipulation and isolation, torture is rarely thought of as having a linguistic quality to it as well. From ancient times to today, words have been used to define and redefine torture within a certain context and overall used as political language. Yet, not only does the way in which torture changes linguistically need to be taken into account, but also the effects of the words themselves and the subsequent shifts in language. This is quite problematic as it creates a situation in which governments can abuse their power for their own ends and in doing so, suppress dissention and make it easier to torture those who disagree with them.

Before going into the linguistic history of torture, we must first define what political language is. Simply put, political language is the use of language in the political realm, but this is rather special as it involves the twisting or bastardization of language rather than using blunt outright speech. Essentially it is the use of language for political ends, which in many cases can mean using exceptionally vague language to describe certain policies. Such use of speech can be seen on a regular basis, one only need to look at the news to get examples. Look at former President Bush’s use of the term ‘enhanced interrogation techniques’ to describe the manner in which we tortured detainees. Such language is couched in the language, ideas, and reputation of science which allows it to be accepted among the public and deemed legitimate while obscuring the fact that the EITs were torture, yet that will be discussed later on in greater detail.

The use of torture has a rather long history, stretching back to the days of ancient Greece and Rome. During that time period, torture was used rather frequently; however, it was limited in scope upon who it could be used against. Within the Greek legal system, citizenship played a major factor into whether or not one was allowed to go to court, much less be subject to torture. Citizenship was thus “greatly strengthened” by such protections as “[limiting] the degree of coercion which [the citizen] might be subjected to, as well as the nature of evidence that might be used against [them], or by [them] against another free citizen.”[1]  With citizenship came honor, which also served as a deterrent against being a victim of torture. Of those that could be tortured, there were slaves and in some cases foreigners.

The refusal to use torture against Greek citizens in some ways parallels early Roman law, however, eventually Roman citizens could be subject to torture “in cases of treason under the Empire, and then in a broader and broader spectrum of cases determined by imperial order.”[2] Yet, even in the Empire, there was a distinction among citizens of who could and could not be tortured. Roman citizenry were divided into two classes, “Honestores, or first-class citizens, [who] could not be tortured except in cases of treason, but humiliores, or second-class citizens, [who] could be tortured in criminal cases, if the crime was serious and some evidence already existed to indicate guilt.”[3]

The difference between Greek and Roman law is rather interesting in that it reflects a respect of citizenship and honor, linking the two in protections from the use of state violence. However, as Rome became an empire, this protection was divvied up among the citizenry. This shows not only an increase in the use of state violence and potentially an acquiescence of the people, but also how the rise of Empire is reflected not solely in a change in the use of force abroad, but also the use of force at home. With the republic being restructured politically and economically into an empire, with an increase in hierarchical structures of authority, there was also an increase in hierarchy on a social level domestically with the separation of who could and could not be tortured. Thus, it may that as Roman society became more and more politically structured, social relations became more and more stratified, with some having more privilege than others.

The legal landscape changed during the Middle Ages, as the Church gained political power and the Inquisition took place. A legal revolution occurred in the twelfth century, which was caused by a number of factors. One of the most important factors was the upholding of confession as the “queen of proofs.”[4]  This focus on confession was the result of a legal revolution that left two doctrines of proof on which a person could be condemned: eyewitness evidence by at least two people or confession. This actually led back to a revival of torture as

Without a confession or two eyewitnesses, then, there was only a graded combination of partial proofs available to the judge and hence no chance of conviction. To overcome the lack of second eyewitnesses and the presence of many but never sufficient [circumstantial evidences], the courts had to return to the one element that made full conviction and punishment possible: confession. And to obtain confession, torture again was once invoked[.] [5]

Yet while torture was used, it was utilized in a way much different than the Roman Empire had used it.
While torture was used in by the Church, it was used not as a means of proof, but a means to extract a confession. While the Church was a religious organization, its methodology n the application of torture was surprisingly based in careful planning and logic. The Church had an entire procedure to approach torture which included that before the accused was tortured, “the court had to be reasonably convinced that a confession would be obtained.”[6]

The language used by the Church to refer to torture is rather striking. While a number of terms existed, a widely used term that referred to torture was quaestio (literally, the question), which was defined as “the torment and suffering inflicted on the body in order to elicit the truth.”[7]

Similar to the Romans, the Catholic Church also had a stratified society in which there was a distinction between who could and could not be tortured, “known criminals and the ‘lowest of men,’ vilissimi homines” as it was believed that those who lived honestly were unable to “be corrupted by grace, favor, or money,”[8]  and thus their testimony could be accepted on face value. What can be seen here is the continuance of this idea of honor allowing one to remain free from torture.

While Romans could be tortured for treason against the state and the Church tortured to attain confessions, the situation began to change in the early 17th century in Europe as the political landscape shifted and the idea of the nation expanded from the monarch or group of ruling elite to the idea of treason being an act which betrayed the nation as a whole. This can be seen in France during the French Revolution.

The idea of lèse-majesté was based on the thinking that the king was the physical embodiment of the nation itself and that any “assaults against the monarch in his public personality and, as such, against all his wards who constituted, beneath him, the nation.”[9]  There is also a religious aspect to this form of treason which linked the king to God and this viewed all crimes against the king to be “an offense committed directly against God, such as apostasy, heresy, witchcraft, simony, sacrilege, and blasphemy.” [10] Yet, this began to change during the French Revolution. Due to intellectuals such as Montesquieu and Beccaria, the people’s opinion of the state as well as treason changed.

The public’s “growing repulsion over the perpetration of agonizing torture and barbarian modes of execution for delicts of expression of opinion or against property” as well as “the mutation of the concept of treason itself in the light of the new understanding of the ‘nation,’ its composition and center of gravity,”[11]  resulted in a massive political change during the French Revolution. Such ideas had a major impact on the French bourgeoisie, the main proponents and beneficiates of the French Revolution, that they restructured the recreation of the state around themselves rather than the king. The middle class put itself “in place of the king as a subject representing society, no longer in the eyes of God but in its own regard.” [12]

This reorientation of society allowed for anyone to be accused of treason and it offers a contrast to the Roman application of torture, within the framework of the Empire. Due to the change of lèse-majesté to lèse-nation, what resulted was a reform and in the case of the idea and position of the monarch, out right destruction, of many hierarchical institutions and them being replaced with institutions based upon the inhabitants of a country.

While the view of state power changed in Europe throughout the 17th and 18th centuries, the use of state violence in the form of torture would eventually find its way back to a handful of individuals as can be seen in the form of the CIA and its research and use of torture. However, there was a major shift in the nature of torture as it moved to a science to obtain information rather than solely as a means to attain a confession.

This shift took place during the beginning of the Cold War, when the CIA was attempting to discover tactics which would allow them to more easily obtain information and achieve an advantage over the Soviet Union. To these ends, the CIA “led a massive, secret research effort to crack the code of human consciousness, a veritable Manhattan Project of the mind,”[13]  resulting in billions of dollars per year in costs.

The CIA heavily researched mind control and funded programs such as Project Bluebird, which of one of the main objectives was to investigate “the possibility of control of an individual by application of special interrogation techniques.”[14]  In order to examine mind control, the CIA began using psychedelic drugs such as LSD on US soldiers and the number of patients expanded under Project Artichoke, the new name of Project Bluebird assigned in 1951 and finally MKULTRA in 1953.

Much of the research for these projects was done at reputable institutions such as Harvard and Cornell universities, with staff working in concert with the CIA. One example of this is Dr. Harold Wolff at Cornell who asked the CIA to “provide him with all its information regarding ‘threats, coercion, imprisonment, deprivation, humiliation, torture, brainwashing, black psychiatry, hypnosis, and combinations of these, with or without chemical agents.”[15]  This information would be analyzed and used to formulate new methods to extract information which would be tested in studies.

The information on torture was furthered with the help of the US military who found that, at least according to one study, seventy percent of American prisoners of war worked with the North Korean forces. Upon interviewing many POWs, it was found that the Koreans had used stress positions, such as forced standing, combined with sleep deprivation in order to get the Americans to comply. This information was then used to formulate and implement stress programs that would familiarize US soldiers with such torture as well as give them ways to resist.

The use of mainstream universities and professors allowed for the programs to be based in a realm of legitimacy due to the prestige of such schools. It also simultaneously gave the programs a scientific air because of the manner in which the programs were analyzed and examined as well as that experiments were conducted by university faculty based in the scientific method.

It was this methodology and connection between universities and the CIA that gave rise to the idea that torture, for the goal of obtaining information, was a science, something that could be precise, measured, and was based in rationality. However, while torture may have been viewed as scientific due to the legitimacy of the institutions that it was produced in, it is important to realize that torture isn’t a science at all.

While the more psychological torture that was seen in the Korean War and has been seen in modern times, in Iraq, Afghanistan, and abroad, may make it seem that torture is scientific, in reality that is far from the truth.  This can be shown in a number of ways. For example, if torture was scientific, then it would be possible to calculate the amount of pain each person needed to experience for them to hand over information. However, “torturers know that human beings differ unpredictably in their abilities to endure extreme pain. They know that hardcore revolutionaries display ‘an unheard of physical resistance.”[16]  This is actually problematic from the torturer’s point of view because it is precisely these radicals that they are attempting to get information from.

Essentially, the idea that torture is scientific is nothing but a myth based on ideas about pain. These ideas assume that humans operate in a utilitarian fashion, looking to maximize pleasure while minimizing pain. However, this doesn’t factor in that people will be dedicated to not giving any information whatsoever and thus deal with the pain.

In addition to this, for torture to be a science, it would require at least “general rules, fixed in advance, that identify the correct choice in particular situations. It also requires a unit that is commeasurable regardless of its source,”[17]  in order to measure the pain. Thus, it lacks even the bare basics to even be argued as a science.

Torture may not be able to be defined as a science, yet the very definition of torture has been subject to heated debates over the past several decades and a number of politically motivated changes, starting with the UN Convention Against Torture (CAT). The CAT defines torture as

severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.[18]

The CAT was presented to the President Reagan to sign. The CAT’s definition of torture presented problems for Reagan as by that definition, the training used on US soldiers and the techniques used by its allies Britain and Israel were torture. To get around this, Reagan’s Office of Legal Counsel (OLC) essentially rewrote the definition of torture and added several provisions with the intent of allowing the US to continue using torture in training and torture as a tactic.

Reagan’s OLC took issue with the definition of torture and stated that the US understood torture as “a deliberate and calculated act of an extremely cruel and inhumane nature” and that acts such as “sensory deprivation, forced beatings, and sexual humiliation”[19]  were not within that scope. The concept of specific intent was also used, in which it was stated that in order for an act to constitute torture, one had to specifically want to inflict harm upon another for no other reason than to inflict harm. Using torture as a way to get information did not fall under the specific intent rule because, according to Reagan’s OLC, the goal of torture for the US was to get information, not inflict harm.

The OLC also rewrote Article 16 of the CAT which argued for the prevention of cruel, degrading or inhumane treatment. The OLC defined such treatment as falling under the Fifth, Eighth, and Fourteenth Amendments in the US Constitution. This is highly problematic as not only does it allow for treatment to occur that would deemed as cruel, degrading and inhumane under the CAT, but is completely legal in the US, but also it protects the perpetrators of torture as it allows for the US Supreme Court to decide what constitutes such treatment and it is rather unlikely that they will pass a sentence which results in the US being seen as having violated the treaty.

 The OLC took the issue of the definition of torture further under Bush, Sr. Bush’s OLC stated that the US defined torture, in part, as using techniques to “inflict severe physical or mental pain or suffering” and that such pain “refers to prolonged mental suffering” from procedures that “disrupt profoundly the senses or personality.”[20]  This essentially created a loophole in which procedures could be administered which would result in the senses of the personality being profoundly disrupted, such as isolation, forced standing, humiliation, or extreme deprivation, but had to actually result in cause prolonged mental harm to constitute torture. In other words, you can be in forced isolation for months, but it isn’t considered torture because the US pretends to not know if it results in prolonged mental harm or not, even when the available information clearly states that it does.[21]

There is also a problem with the definition of torture in regards to how it is used to protect the ones doing the torture. After the horrific events in Abu Ghraib were revealed, the accused soldiers defended their actions by arguing that their actions did not count as torture as “the ‘control of environmental factors such as light, food, clothing, and temperature’ and ‘the use of stress positions, the removal of clothing, isolation, and sleep deprivation’ as permissible interrogation techniques contextually sanctioned by the US Army.” The Army Field Manual on Intelligence Interrogation did in fact state that such techniques “should neither be confused with, nor construed to be synonymous with, unauthorized techniques such as brainwashing, physical or mental torture.” The use of institutional definitions of torture in order to protect interrogators allows them to “escape not only the stigma of being labeled a torturer but potentially liability altogether.”[22]  This, in addition to the scientific language in which torture is described, allows for the perpetrators to use torture with ease as not only are they convinced of its effectiveness, but they need not worry about being prosecuted because they will be protected.

However, all of this then begs the question: Why would torture be cloaked in scientific language and rhetoric, when it could easily be proven false? By giving torture techniques the idea of being scientific, it not only increases the chances that the public will accept such techniques if the government is ever found out to be engaged in torture, nor solely because it allows the perpetrators of torture to be under the false illusion that what they are doing is legitimate and proven to work, but also because it allows for the power of the state to be increased.

The power of the state was increased and with it changed the political language of terrorism in the wake of 9/11 attacks when Congress passed the Patriot Act which defined domestic terrorism as “activities that involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State” and “appear to be intended to intimidate or coerce a civilian population; influence the policy of a government by intimidation or coercion; or affect the conduct of a government by mass destruction, assassination, or kidnapping and occur primarily within the territorial jurisdiction of the United States.”[23]

This language is quite problematic as it takes an international scope in defining terrorism as what may be legal in the US may be illegal somewhere else. But also, how do you define intimidation or coercion?

It was concerns such as these that led the ACLU to decry that the definition of domestic terrorism was “broad enough to encompass the activities of several prominent activist campaigns and organizations” such as “Greenpeace, Operation Rescue, Vieques Island and WTO protesters and the Environmental Liberation Front.”[24]  Such language could allow for activists in groups such as the aforementioned organizations to be accused of terrorism and thus subject to torture.

A similar problem occurred with the 2006 Military Commissions Act which uses the term “unlawful enemy combatant” and describes such a person as someone who “was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.”[25]

The use of this term comes from the 1942 Quirin case in which eight German-Americans, after undergoing sabotage training in Germany, took a submarine to the US. Four went to Long Island wearing German uniforms and carrying explosives, four went to Ponte Verda Beach, Florida. Shortly after the landings two of the men backed out of the plan while a third turned themselves into the FBI. All eight were charged with eventually found, arrested, and tried by a military commission on the orders of President Roosevelt. Seven of the eight conspirators argued “that the President exceeded his power in ordering the commission and that the Fifth and Sixth Amendments to the Constitution protect their rights to a regular trial”[26] and filed for a writ of habeus corpus.

The first attempt failed and the group appealed to the US Supreme Court, where the Court ruled that Roosevelt was in the right as “the conspirators, as spies without uniform whose purpose was sabotage, violated the law of war and were therefore unlawful enemy combatants.”[27]  However, the problem with using this term to refer to terrorists is that within the context of the original case it specifically pertained to Americans who had aided and joined the armed forces of a nation that we were at war with, the Constitutional definition of treason. This cannot be applied to terrorists or Americans who aid terrorists as such organizations are not nation-states with standing armies.

The problem with such language is that “it explicitly includes— but does not limit the definition to—anyone who has ‘committed a belligerent act’ or who has ‘directly supported hostilities in aid of enemy forces’ without further defining the key criteria of belligerent act, direct support, or hostilities.”[28]  Such language, coupled with the definition of domestic terrorism under the Patriot Act, make it quite easy for the government to declare anyone a terrorist for any reason and thus subject them to torture. Thus, American citizens can potentially be victims of torture on a president’s whim if they associate with the wrong person or the wrong groups, with the President deciding who and what organizations are deemed ‘wrong.’

While Obama campaigned on an idea of ‘hope and change,’ he essentially followed the same route by not only expanding the Patriot Act[29] , but essentially keeping the same language in regards to enemy combatants. Obama now uses the term “unprivileged enemy belligerent” which was passed under the Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010 and defines an enemy belligerent as who “has engaged in hostilities against the United States or its coalition partners; has purposefully and materially supported hostilities against the United States or its coalition partners; or was a part of al Qaeda at the time of the alleged offense under this chapter.”[30]  This is just as vague as the unlawful enemy combatant term, but has the added twist of codifying into law that “if at any point, anywhere in the world, a person is caught who might have done something to suggest that he or she is a terrorist or somehow supporting a terrorist organization against the U.S. or its allies, that person must be imprisoned by the military,"[31]  for an indefinite period of time. Thus, the continuation of the political language of terrorism and torture remains.

The major problems with defining torture to fulfill certain political goals is potentially puts the citizenry in danger, but on a greater level debases the moral standards of the state as a whole. The continued use of torture and the expanding circumstances under which one can potentially be subject to torture risks the death of democracy.

Endnotes


1: Edward Peters, Torture, Rev. ed. (Philadelphia, Pennsylvania: University of Pennsylvania Press, 1996), pg 13

2: Peters, pg 18

3: Christopher J. Einolf, “The Fall and Rise of Torture: A Comparative and Historical Analysis,” Sociological
Theory 25:2 (2007), pg 107

4: Peters, pg 41

5: Peters, pg 47

6: Peters, pg 50

7: Peters, pg 55

8: Peters, pgs 47-48

9: G. A. Kelly, “From Lèse-Majesté to Lèse-Nation: Treason in Eighteenth-Century France,” Journal of the
History of Ideas 42:2 (1981), pg 270

10: Ibid

11: Kelly, pg 278

12: Kelly, pg 275

13: Alfred W. McCoy, “Science In Dachau’s Shadow: Hebb, Beecher, and the Development of Modern
CIA Psychological Torture and Modern Medical Ethics,” Journal of Behavioral Sciences 43: 4 (2007), pg 402

14: Michael Otterman, American Torture: From the Cold War to Abu Ghraib and Beyond (Ann Arbor, Michigan: Pluto Press, 2007), pg 21

15: Otterman, pg 24

16: Darius Rejali, Torture and Democracy (Princeton, New Jersey: Princeton University Press, 2007), pg 448

17: Rejali, pg 449

18: Human Rights Watch, Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, http://www.hrweb.org/legal/cat.html

19: Otterman, pg 109

20: Otterman, pg 111

21: Michael Mechanic, “What Extreme Isolation Does to Your Mind,” Mother Jones, October 18, 2012

22: Lisa Yarwood, “Defining Torture: The Potential For Abuse,” Journal of the Institute of Justice & International Studies, Number 8, 2008, pgs 327-328

23: Electronic Privacy Information Center, USA PATRIOT Act (H.R. 3162), https://epic.org/privacy/terrorism/hr3162.html

24: American Civil Liberties Union, How the USA PATRIOT Act redefines "Domestic Terrorism,” https://www.aclu.org/national-security/how-usa-patriot-act-redefines-domestic-terrorism  (December 6, 2002)

25: Allison M. Danner, “Defining Unlawful Enemy Combatants: A Centripetal Story,” Texas International Law Journal 43:1 (2007), pg 4

26: The Oyez Project at IIT Chicago-Kent College of Law, Ex Parte Quirin, http://www.oyez.org/cases/1940-1949/1941/1941_1_ORIG (December 6, 2013)

27: Ibid

28: Danner, pg 5

29: NBC News, Obama, In Europe, Signs Patriot Act Extension, May 27, 2011

30: Cornell University Law School Legal Information Institute, 10 USC § 948a - Definitions

31: Liliana Segura, “McCain and Lieberman's ‘Enemy Belligerent’ Act Could Set U.S. on Path to Military Dictatorship,” Alternet, March 18, 2010