I.

Introduction

Torture, the infliction of bodily pain or mental suffering either as punishment, to compel a person to confess to a crime or provide information, or to intimidate, coerce, discriminate against, or repress a person or group of people for political purposes. The methods of torture and the reasons for it have varied throughout history. The word torture comes from the Latin term tortus, which means “to twist.”

Throughout history, the extreme measure of torture has often been reserved, even in societies condoning it, for offenses of the highest ideological order, where the offender is perceived as threatening the society’s basic beliefs.

Although torture has been documented throughout much of human history and prohibited by law in many countries, it was not addressed explicitly by international law until the modern human rights movement began following World War II (1939-1945). This movement was born in reaction to crimes against humanity carried out by Nazi Germany and Japan.

Some historians believe torture was carried out more widely in the 20th century than at any other time in human history. And torture continues to be practiced. In the early part of the 21st century, for example, members of U.S. military and intelligence agencies reportedly used methods of torture in Afghanistan and Iraq, and at the detention facility at the U.S. Naval Station in Guantánamo Bay, Cuba. In spite of an absolute prohibition against torture under international law, some efforts have been made to justify torture as an appropriate method for combating terrorism.

II.

Torture in Ancient Greece and Rome

In ancient times, torture was used for affronts to the authority of slave-masters. In early Athens in ancient Greece, slaves were always examined by torture, and for this reason their evidence was apparently considered more valuable than that of freemen. A free Athenian could not be examined by this method, although torture may have been used occasionally in executing criminals. Law in ancient Rome permitted the torture of an accused suspect but banned the torture of witnesses. Where a witness, freeman, or slave was believed to have committed treason, however, he could be legally tortured. Torture was frequently inflicted even on freemen to obtain evidence of the crime of laesa majestas (“injured majesty,” or crime against a sovereign power). Rome’s use of red-hot irons and lacerating hooks is well-known. The statesman Cicero and other enlightened Romans condemned the use of torture.

III.

Torture in the Middle Ages and After

In the early Middle Ages, torture was used as a means of ordeal—usually as part of a religious initiation rite—and to punish captured enemies. Examination by torture, often called the “question,” was used in many countries as a judicial method. It involved using instruments to extort evidence from unwilling witnesses. The techniques were usually crude and involved inflicting intense physical pain.

During the later Middle Ages, torture was usually reserved for heresy, which undermined the theocratic foundations of society. Until the 1200s torture was apparently not sanctioned by the canon law of the Christian church. About that time, however, the Roman treason law began to be adapted to heresy as crimen laesae majestatis Divinae (“crime of injury to Divine majesty”). Soon after the Inquisition was instituted, Pope Innocent IV, influenced by the revival of Roman law, issued a decree in 1252 that called on civil magistrates to have persons accused of heresy tortured to elicit confessions against themselves and others. This decree was probably the earliest instance of ecclesiastical sanction of this mode of examination.

The influence of the Roman Catholic Church during the Middle Ages contributed to the adoption of torture by civil tribunals. The Italian municipalities adopted torture early, but it did not appear in other European countries until France legalized its use in the 1200s. Ultimately, torture became part of the legal system of every European nation except England. Although torture was never recognized in the common law of England, it was practiced by exercise of the royal prerogative.

The horrors of the Inquisition and the excessive use of judicial torture from the 1300s to the 1500s brought about a progressive change of sentiment, which eventually led to the abolition of torture in all European countries. Judicial use of “the question” to compel a confession of treason was halted in England in 1640, but flogging as punishment continued into the 1800s. By the middle of the 1700s, legal torture had been abolished in France, Prussia, Saxony, and Austria.

Torture was not legally sanctioned in the American colonies. However, the use of stocks, pillory, ducking, and branding were imported from England. Americans invented and exported a device called the head cage that caused sleep deprivation. There was also a colonial practice of hanging sex offenders by their genitals. Judicial opposition to torture arose in the 1700s in all parts of the colonies except the South.

IV.

Torture in the 20th Century

In the 20th century, methods of torture became more sophisticated and often left no physical mark on the torture victim. During this period the motivation for using torture was not only to obtain information without regard for legal rights but also to intimidate people from speaking out or organizing against a repressive government or an occupying army. In modern times, torture has been generally reserved for perceived enemies of the state.

The use of torture in the 20th century was revived on a major scale by regimes espousing national socialism, fascism, and Communism, usually as a weapon of political coercion. In addition, some Communist governments made use of the so-called brainwashing technique, a form of psychological torture in which mental disorientation is induced by methods such as forcing a prisoner to stay awake indefinitely. Brainwashing was reportedly practiced extensively on prisoners held by the Communists during the Korean War (1950-1953). Complaints about the use of physical and psychological torture have also been lodged against many governments in Africa, Asia, Europe, Latin America, the Middle East, and the United States

The first real revolution in the use of torture since the 1600s came with the U.S. Central Intelligence Agency’s (CIA) discovery of psychological or “no touch” torture. Whereas the physical approach requires the torturer to inflict pain, the psychological method stresses disorientation and forcing people into stressful positions or situations. Beginning in the 1950s, the CIA Office of Science and Technology tested lysergic acid diethylamide (LSD) and other drugs on unsuspecting subjects.

The CIA developed a classified interrogation manual called “KUBARK Counter Intelligence Interrogation–July 1963,” which was used globally for the next three decades. The manual discussed the “principal coercive techniques of interrogation,” which it identified as “arrest, detention, deprivation of sensory stimuli through solitary confinement or similar methods, threats and fear, debility, pain, heightened suggestibility and hypnosis, narcosis, and induced regression.” Especially effective in depriving an “interrogatee” of sensory stimuli, the manual stated, is placing the person in a “cell which has no light” or a “water-tank or iron lung.” The manual recommended placing people under interrogation in situations where pain is seemingly self-inflicted, such as forcing a person to stand at attention for long periods, rather than having the interrogator inflict pain directly.

The CIA used the manual in its notorious Operation Phoenix program during the Vietnam War (1957-1975), which involved identifying and assassinating people active with or sympathetic to the Communists. The CIA manual was also used extensively by the U.S. Army at the School of the Americas (SOA, now known as the Western Hemispheric Institute for Security Cooperation), which was first established in Panama after World War II and then moved to Fort Benning, Georgia, in 1984. Many SOA graduates were responsible for massacres and torture in Latin America, notably the suspected death squad leader Roberto d’Aubuisson in El Salvador and the convicted assassin of Roman Catholic bishop Juan Gerardi Conedera in Guatemala, among others.

Military dictatorships and paramilitary groups in Argentina, Brazil, Chile, Guatemala, Honduras, and El Salvador frequently relied on torture in the 1960s, 1970s, and 1980s to silence their political opposition. During this period, typical torture techniques included the use of electric shock by attaching electrodes to genital areas, immersing prisoners in water until they nearly drowned, hanging prisoners by their arms or feet, the use of blindfolds and hoods to disorient victims, playing extremely loud music for long periods of time, rape and sexual degradation, exposure to extreme cold and heat, the use of stressful positions, and mock executions.

Torture was not confined to Latin America during this period. It was used by the British in the 1970s during the Northern Ireland conflict. The French perfected torture techniques in their efforts to suppress wars for independence in Algeria and Vietnam in the 1950s and 1960s. The apartheid government in South Africa used torture in its attempts to repress the African National Congress and other groups that sought democratic majority rule. Until the Israeli Supreme Court outlawed torture in 1999, Israel was the only democratic country in the world that sanctioned the use of torture as a legitimate means of extracting confessions. The Public Committee Against Torture in Israel (PCATI), an independent human rights organization that petitioned the Israeli Supreme Court to outlaw torture as a technique of interrogation, issued a report in 2001 that said loopholes in the court ruling allowed torture to continue. The use of torture has also been documented in Sudan, the Democratic Republic of Congo, and many other countries.

V.

Torture in the 21st Century

After the September 11 terrorist attacks on the United States in 2001, the administration of President George W. Bush declared a “war on terrorism.” In October 2001 the United States invaded Afghanistan to topple the Taliban government that had given sanctuary to al-Qaeda, the terrorist organization that claimed responsibility for the September 11 attacks.

In January 2002 a memo written by White House counsel Alberto R. Gonzales urged Bush to declare the war in Afghanistan exempt from the provisions of the Geneva Conventions. The memo advised Bush that the need to obtain information quickly to prevent a terrorist attack “renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.” This was an unprecedented position. Gonzales and Department of Justice lawyers devised strategies to insulate Bush administration officials from criminal liability under the federal War Crimes Act. Noting that the act applies to “U.S. officials,” the memo argued that exempting Taliban and al-Qaeda fighters from the Geneva Conventions “substantially reduces the threat of domestic criminal prosecution under the War Crimes Act.”

Then, in August 2002, lawyers with the Office of Legal Counsel of the U.S. Department of Justice issued a memo that proposed a definition of torture narrower than the one the United States agreed to be bound by when it ratified the Convention Against Torture. The memo said that “for an act to constitute torture … it must inflict pain that is difficult to endure. Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” In April 2003 a memo approved by the Defense Department’s general counsel William J. Haynes II adopted this definition of torture.

However, Bush administration officials denied that the president ever considered a narrower definition; Bush issued a directive ordering that people detained in the war on terrorism be treated “humanely”.

Nevertheless, following the U.S. invasion of Afghanistan in 2001 and of Iraq in 2003, prisoners held by U.S. forces in Afghanistan, Guantánamo Bay, Cuba, and Iraq were treated in a manner that violated the convention’s definition of torture. In Afghanistan an official investigation into the treatment of detainees concluded that as many as 23 detainees may have died due to abuse during interrogations. A U.S. military policeman and a private contractor employed by the CIA were charged in the beating deaths of three Afghan men. U.S. citizen John Walker Lindh, who was captured on the battlefield in Afghanistan, was stripped, gagged, strapped to a board naked, and displayed to the press. U.S. officials interrogated him while he was suffering pain from a bullet left lodged in his leg for three weeks before they would remove it. Lindh, initially charged with terrorist crimes that carried the death penalty, was permitted to plead guilty to lesser charges, and was sentenced to 20 years in prison, on the condition that he make a statement that he suffered “no deliberate mistreatment” while in custody.

At Guantánamo Bay, a report by the International Committee of the Red Cross, which was leaked to the New York Times and other newspapers in November 2004, found that the U.S. military used physical and psychological methods “tantamount to torture” against terrorist suspects. The report specified “humiliating acts, solitary confinement, temperature extremes, use of forced positions.” Some doctors and medical workers participated in planning for interrogations by furnishing patients’ confidential medical records to interrogators, in what the report called “a flagrant violation of medical ethics.” The report concluded, “The construction of such a system, whose stated purpose is the production of intelligence, cannot be considered other than an intentional system of cruel, unusual and degrading treatment and a form of torture.” The U.S. government rejected the Red Cross report, and the Department of Defense said the detention facility at Guantánamo was “humane.” In 2006, however, a report by the United Nations Commission on Human Rights concluded that the camp should be closed because of the use of torture. The U.S. government rejected this report, as well, saying it was not based on an actual visit to Guantánamo.

In Iraq, according to several official reports, U.S. military personnel and private military contractors employed rape, techniques of sexual humiliation and degradation, unmuzzled dogs to bite and severely injure prisoners, sodomy with foreign objects, and the beating of prisoners to death. A report by U.S. Army Major General George R. Fay listed 24 serious incidents of physical and sexual abuse. These methods were used to secure information from prisoners, as well as for intimidation, coercion, discrimination, and amusement.

Much of the torture and degrading treatment occurred at Abu Ghraib prison outside Baghdād and was documented in photographs. The photographs showed the use of sexually humiliating and degrading techniques, such as forcing naked men to assume poses of oral sex and anal intercourse. Forcing prisoners to be naked for long periods of time was also routine.

Medical records kept by U.S. Army doctors documented some of the abuse, which raised the question of whether the physicians and other medical personnel were complicit in the abuse and had failed to report it to higher authorities. An article in the British medical journal, The Lancet, charged that in some cases U.S. Army doctors had falsified medical records to cover up torture. The U.S. Department of Defense denied the charges.

The Bush administration admitted engaging in the practice of rendition, which involves sending, or rendering, prisoners to other countries for interrogation. Rendering a prisoner to another country knowing that the prisoner might be tortured violates well-established principles of international law. The British ambassador to Uzbekistan, Craig Murray, has charged that the United States sent terrorist suspects to Uzbekistan to be interrogated by torture. The Bush administration denied that it was complicit in torture.

In December 2004 the U.S. Justice Department publicly issued a legal opinion that declared torture “abhorrent.” The opinion formally renounced the views put forward in earlier opinions that came from within the Justice Department’s Office of Legal Counsel. Specifically, it rejected an August 2002 opinion written by Justice Department attorney John Yoo that redefined torture as “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” The 2004 opinion was written by Jack Goldsmith, the new head of the Office of Legal Counsel, and reportedly resulted from a strong dissent by a number of Justice Department attorneys to the policies of the Bush administration.

But in February 2005, when Alberto Gonzales became attorney general, the new head of the Office of Legal Counsel secretly issued an opinion that undermined Goldsmith’s position. For the first time the Justice Department explicitly permitted interrogators to use head slapping, waterboarding (simulated drowning), and exposure to cold and loud noise in “combination.” The memo was issued over the reported objections of then deputy attorney general James Comey and was written by the new head of the Office of Legal Counsel, Steven G. Bradbury. Later in the year the Justice Department issued another secret opinion formally declaring that such interrogation tactics did not constitute “cruel, inhuman, or degrading treatment.” Therefore, such tactics would not violate the Detainee Treatment Act, legislation that Congress was considering at the time. The existence of the secret memos was not known until October 2007 when they were revealed by the New York Times, based on disclosures by former and current government officials. The Bush administration acknowledged the memos but refused to release them, and President Bush once again asserted that “this country does not torture.”

Democrats in Congress demanded the release of the memos, and Senator Edward Kennedy of Massachusetts introduced new legislation that would explicitly outlaw such interrogation techniques by all U.S. government interrogators. The use of waterboarding, exposure to cold and loud noise, and other harsh interrogation techniques was banned under the Detainee Treatment Act of 2005. However, the ban applied only to military interrogators, leaving the CIA exempt from the act. Kennedy’s legislation was intended to close this loophole.

VI.

Laws Against Torture

The war crimes tribunals convened immediately after World War II in Nürnberg, Germany, and Tokyo, Japan, treated torture as a crime against humanity (see War Crimes Trials). In 1948 the United Nations (UN) adopted the Universal Declaration of Human Rights. Article 5 of the declaration stated, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” However, the declaration was nonbinding, which meant that it did not have the force of international law. In 1949 the Geneva Conventions brought civilians under the protection of international laws that prohibit torture. The Geneva Conventions defined torture as a grave breach of the conventions and prohibited its use against prisoners of war (POWs).

The 1966 UN Covenant on Civil and Political Rights codified the civil and political rights set forth in the Universal Declaration of Human Rights in a binding international treaty. The covenant also provided that no one shall be subject to torture or cruel, inhuman, or degrading treatment or punishment.

A.

Convention Against Torture

In 1984 the UN adopted the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). The convention went into effect in 1987. CAT defined torture as the intentional infliction or threatened infliction of severe physical or mental pain or suffering, for the purpose of obtaining a confession, punishment, intimidation, coercion, or discrimination. The definition reads in part “any act by which 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.”

Under CAT, torture is never permitted, even in times of war. Article 2 explicitly states that “no exceptional circumstance whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” Article 3 stipulates that states parties (countries that have ratified CAT) are prohibited from returning or extraditing a person to another state where there are substantial grounds to believe the person would be in danger of being subjected to torture.

The United States ratified CAT in 1994, giving it the status of U.S. law. The U.S. ratification was based on the understanding that the definition of torture would conform to the language used in an earlier U.S. law, the Torture Victim Protection Act (TVPA) of 1991. The TVPA established civil procedures for torture victims to recover damages. Damages can be recovered from anyone who, under the authority of a foreign nation, engages in torture or carries out executions not sanctioned by law.

Although the language in the two laws was similar, the TVPA definition of mental suffering was more specific than that used in CAT. The TVPA defined mental pain or suffering as “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 individual will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances.…” This definition also became part of United States Code Title 18, section 2340a, a criminal statute that provides for imprisonment and other penalties, up to and including the death penalty, for its violation.

Canada ratified the CAT without any reservations. Canada also amended its criminal code to punish torture with a sentence of not more than 14 years. However, if a torture victim dies, Canadian law provides for a maximum punishment of life imprisonment.

As of 2004, 136 states had ratified CAT. In 2002 the UN General Assembly adopted the Optional Protocol to the Convention Against Torture, which will allow independent international and national experts to conduct regular visits to places of detentions within the states parties, to assess the treatment of prisoners and make recommendations for improvement. The treaty was adopted by a vote of 127 in favor, 4 against, and 42 abstentions. The United States was joined by Nigeria, Marshall Islands, and Palau in opposing the optional protocol. The United States opposed the optional protocol because some provisions conflicted with the U.S. Constitution’s provisions on search and seizure and because the protocol would be “overly intrusive.” It also expressed budgetary concerns.

B.

Other U.S. Anti-Torture Laws

In 1994 the U.S. Congress adopted the Torture Statute, which provides criminal liability for a U.S. national who tortures a person outside of the United States. (A U.S. national is a U.S. citizen or a noncitizen who owes permanent allegiance to the United States, such as a resident of Puerto Rico.) A foreign national apprehended in the United States for torturing someone outside of the United States could also face criminal liability under the Torture Statute. The U.S. War Crimes Act of 1996 provides life imprisonment or the death penalty for a U.S. national or any member of the U.S. armed forces who is convicted of torturing someone to death. Under this act, a non-U.S. national could also be charged with war crimes if their victim was a U.S. citizen. Anyone charged with a grave breach of the Geneva Conventions could also be tried in the United States under the War Crimes Act.

In December 2005 the U.S. Congress passed a new law known as the McCain amendment, for U.S. senator John McCain, a Republican from Arizona who was himself tortured as a prisoner during the Vietnam War. The amendment was added to the Detainee Treatment Act. The McCain amendment resulted from an admission by Alberto Gonzales during his confirmation hearings to become attorney general. Gonzales said the Bush administration did not regard laws and treaties prohibiting cruel, inhuman, or degrading treatment or punishment to be applicable to prisoners in U.S. custody outside the United States. This admission was followed by the disclosure that the CIA operated secret prisons abroad where it used harsh interrogation techniques regarded as torture by many people familiar with them. The McCain amendment was meant to close this loophole, explicitly stating that “no individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.”

In signing the law, however, President Bush issued a “signing statement,” presented as the U.S. president’s interpretation of a law. The signing statement indicated that interrogation restrictions could be waived if the president, as commander-in-chief, thought the waiver would assist in preventing terrorist attacks. The McCain amendment seemed to be tangled up in other issues, as well. It had no enforcement mechanisms and did not provide for criminal or civil penalties. And another amendment attached to the Detainee Treatment Act enabled testimony “obtained as a result of coercion” to be used in combat status review tribunals against detainees held at Guantánamo Bay, Cuba. That same amendment removed jurisdiction from federal courts to hear applications for writs of habeas corpus challenging conditions of detention, which are filed on or behalf of aliens held at Guantánamo.

In September 2006 the Department of Defense issued a new Army Field Manual that applied the Geneva Conventions to all detainees, not just those classified as prisoners of war. The new manual also banned specific interrogation techniques or other controversial methods, such as using dogs to threaten detainees, placing prisoners in solitary confinement for long periods, and waterboarding, a technique that simulates drowning.

The following month President Bush signed into law the Military Commissions Act of 2006. The law granted immunity to any U.S. officials accused of cruel, inhuman, or degrading treatment of detainees during the period prior to passage of the Detainee Treatment Act of 2005, the period when the worst abuses occurred in Afghanistan, Iraq, and Guantánamo. Similarly, the law allows that evidence obtained through coercion prior to 2005 may be admitted into trial if a military judge finds it “reliable” and serving the interests of justice. For evidence obtained after 2005, no coerced evidence could be admitted if a military judge determines that it was obtained through cruel or inhuman interrogation methods. The new law also enabled the president to determine what interrogation techniques are permissible, without explicitly describing those techniques. The law also removed “outrages upon personal dignity” and “humiliating and degrading treatment” from the list of offenses punishable under the U.S. War Crimes Act.

VII.

Efficacy of Torture

Despite CAT’s categorical prohibition on the use of torture, some legal experts, such as Harvard University law professor Alan Dershowitz, have proposed a detailed interrogation code that could permit torture only in a situation when “a captured terrorist knows the location of a ticking bomb that threatens hundreds of innocent lives.” Opponents of the use of torture under any circumstances, however, argue that throughout history interrogators have found that torture often proves ineffective for securing information. Nazi Germany’s Gestapo reportedly discovered that during World War II, Resistance fighters (nonuniformed partisans or guerrilla fighters) rarely gave accurate information under torture. Those with a determined will or psychological mindset defied the pain, and those who could not endure the pain made up anything to make it stop or tried to determine what their interrogators wanted to hear.

Opponents of torture also argue that the information given by a torture victim must be verified, which can be time-consuming and can make the “ticking bomb” scenario pointless. Even the CIA’s KUBARK manual acknowledged that torture is a “hit or miss” proposition and often “a waste of time and energy.” And the U.S. Army’s Field Manual notes: “Experience indicates that the use of force is not necessary to gain the cooperation of sources for interrogation. Therefore, the use of force is a poor technique, as it yields unreliable results, may damage subsequent collection efforts, and can induce the source to say whatever he thinks the interrogator wants to hear.” The Federal Bureau of Investigation (FBI) advocates an approach that seeks to enlist a suspect’s cooperation. Finally, opponents of torture in all circumstances argue that once torture is permitted for any reason it becomes a slippery slope, opening the door to even greater abuse.

VIII.

Punishments for Torture

The United States Congress in 1991 enacted the Torture Victim Protection Act (TVPA) to implement the U.S. obligations under CAT. The TVPA provides for civil liability for an individual who, under actual or apparent authority, or under color of law, of any foreign nation, subjects an individual to torture or extrajudicial killing. The TVPA also explicitly bans the use of any mind-altering substances, such as LSD, during interrogations. The U.S. Congress also passed the criminal Torture Statute, under which a U.S. national who commits, or conspires or attempts to commit, torture outside of the United States can receive 20 years in prison, or life imprisonment or the death penalty if the victim dies.

Although some argue that they do not provide an effective remedy for victims of torture, truth and reconciliation commissions, or TRCs, have been used as an alternative to judicial trial and punishment. By 1999 TRCs had been established in approximately 20 countries. These commissions were usually set up after mass atrocities and during periods of political transition when the countries were emerging from dictatorship to democracy. In many cases, however, the military still wielded considerable power and threatened to end democratic rule if it was held accountable for human rights violations. The TRCs were proposed as alternatives to prosecution, so that a record of human rights violations could be established, the fate of victims could be learned, and sharply divided societies could be reconciled.

In post-apartheid South Africa, for example, a TRC provided amnesty for those who agreed to testify fully about atrocities they committed during the apartheid era. Even though many were not prosecuted for their torture, the TRC led to testimony from people who would not have come forward if they had faced criminal charges. Proponents of TRCs argue that they establish a record of undisputed fact and dispel the cloud of secrecy or denial regarding torture, determine the fate or whereabouts of victims, and provide a catharsis for many who suffered from torture.