noveldevice (![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png)
noveldevice) wrote2008-03-25 04:54 pm
noveldevice) wrote2008-03-25 04:54 pm
Entry tags:
Blog Anti-Torture, Tuesday: Evidentiary Torture, Then and Now
Friday is Blog Anti-Torture Day, and I decided that rather than just blogging anti-torture on the day, I would post every day this week about torture.
Today I want to talk a little bit about evidentiary torture and its use in the ancient world. In the fifth century BCE in Athens, legal testimony took a couple of different forms, but the only way that the testimony of a slave could be considered by the court as anything other than part of the diegesis, the narrative (and thus hearsay), was if this testimony was obtained “basanizomenos”—by torture. This torture was called basanos, which is also the word for a touchstone, the stone that determines if gold is real. There has been a fair amount of ink spilled over basanos and its place in the Greek judicial system. It has been variously suggested that basanos was never actually used; that it was used but was decisive in the outcome of a case, such that disputes which involved basanos would not then come before a jury; that it was perhaps a preserved and ritualized form of trial by combat.1 Regardless, what we do know is that it was the practice of “pressing” the truth from a witness who might have a vested interest in lying to his questioners,2 and that basanos was the only thing that could render the testimony of a slave admissible in court. Dicasts often refer to the testimony of a slave under basanos as having the power to end a case, and no legal speech has been preserved which refers to testimony derived from basanos as being part of the argument of prosecution or defense in criminal cases.
I see this practice as being similar to the ways that torture is currently being used on “persons of interest” in American legal matters. The military and intelligence personnel who deal with the interrogation of these persons of interest arrive in the situation with the assumption that the POI has a vested interest in lying to his questioners. For a variety of reasons, which I will touch on later, this assumption—regardless of its truth—leads to the assumption that only torture will obtain reliable, timely, and valuable information. By torture, here, of course, I refer to pain, psychological abuse, stress positions, sleep deprivation, temperature stress, sexual humiliation, physical and sexual assault, drugs, poisons, psychoactive agents, “simulated drowning”, etc—all techniques used by our government and its contractors on POI.
The impetus of the Athenian use of evidentiary torture is similar to the use made of torture by Americans against POI, but the Athenian model contains something that the American one does not: constraints. The American model has been modified in order to contain as few constraints as possible: the suspects are held outside the boundaries of the United States, out of the reach of investigation. They are moved without notice or accessible records. They have been denied habeas corpus in order to facilitate this physical and legal limbo. Often, even when they are in a known location, they are not made accessible to their attorneys or family members. Information regarding charges, circumstances, and evidence pertaining to the accusations is routinely not made available to the defense “in the national interest”—and this is when these suspects are allowed a putative “regular civilian trial.” Those tried by military commissions find their defense even more sharply curtailed. I am reminded rather powerfully of the line from Silverado (1985): “We’re gonna give you a fair trial, followed by a first-class hangin’.”
The Athenian model, however, sharply constrains the torturers, not the tortured. Both parties must agree to the use of basanos in order to obtain testimony from a slave. Both parties must agree on the precise slave to be questioned, and the precise list of questions answerable by a yes or a no which will be asked of the slave during torture. No surviving legal speech contains mention of actual basanos testimony being read into evidence, and the most persuasive theory accounting for this suggests that basanos, if used, was automatically sufficient to decide the case, and cases which came before a jury were those in which either no basanos was sought or in which the circumstances of basanos could not be agreed upon by the parties involved.
If you have reservations about the practice of basanos as I have represented it here, you are not alone. The Romans continued the practice of allowing slave testimony under torture, but the writer Valerius Maximus, referring to this practice, provided three examples of Roman slaves who were tortured in order to compel their testimony. In the first example, a slave charged with murder is put to the torture, confesses to the murder, and is subsequently executed. After his execution, the “murdered” man returns home from a journey. In the second example, a slave also charged with murder proclaims his innocence through six rounds of torture and is convicted and put to death anyway. In the third example, a slave is tortured to testify in his master’s trial. Although he is repeatedly tortured, his testimony each time matches precisely his master’s assertions. Despite the evidence the slave gives under torture, his master is convicted. Dorjahn (1952), writing briefly on evidentiary torture, comments, “The first example reveals the untrustworthiness of slave-evidence. The second and third examples indicate that Roman law had little confidence in the testimony extracted by torture.”
To touch on Greek torture again, however, I believe that there is another element to the Greek insistence on obtaining slave testimony by torture: it is the torture itself that makes it possible to broach the boundary between slave and citizen and to value the word of a slave as equal to the word of a citizen. In a sense, the torture is necessary, not because the slave is necessarily less trustworthy as an individual, but because the citizens cannot allow the slave the individuality, the personhood, to testify without performing some act that further dehumanizes him and ultimately reinforces the boundary between torturer and tortured.
In her book Torture and Truth, Page duBois suggests that the Western identification of truth with torture begins with the Greeks and this practice of basanos. As Edith Hall points out in her review of duBois’s book, however, this does not address the practice of torture in parts of the world where the indigenous culture did not spring from the Greeks, but the very universality of the truth-torture association suggests some interesting things about our understanding of truth as well as our methods for obtaining it.
First, we are clearly as a culture making an assumption: everyone lies. Further, because everyone lies, we assume that any given person will lie if it is to his advantage. Obviously, then, when a person is being questioned regarding a criminal act, that person will lie, as the advantages in lying well represent a significantly better outcome for the liar than the advantages in telling the truth do for the truthful. So already we begin with the belief that anything a person being questioned says is highly suspect, if not outright and immediately dismissed as a lie.
Then you add in the idea that persuasion is soft and bad, and violence is strong and good—another set of very common assumptions. When you combine the belief that anything a person being questioned says is highly suspect with the belief that the strong, good approach to questioning a person is with force, you have set yourself up for a situation in which torture—questioning with violence—is always going to be considered a viable option, and it will always be considered a viable option because this is something that makes sense to our hindbrains. Like the Greeks, for whom basanos mediated the conflict inherent in valuing the word of a slave as equal to the word of a citizen, violent questioning methods mediate the conflict inherent in asking an enemy for help.
The impulse to torture is a behavior based not only on a series of understandable but faulty assumptions, but also a desire to exert control over a basically uncontrollable situation. You cannot make the world safe, but you can rigidly exert control over small representative pieces, and this desire to overcome fear by exerting control can lead to a suspect being seen, not as an individual, but as a cipher, a signifier for a larger situation. Domination of the suspect becomes domination of the situation. Even in the absence of constraints on this behavior, it would tend to feed on itself in a vicious cycle of escalation (see the Stanford Prison Experiment), but unfortunately, American military and intelligence personnel, finding themselves in this situation, are encouraged on several fronts to torture. Their superior officers urge them to produce results immediately, their regulations allow and specifically promote certain torture procedures while keeping the verbiage discouraging obvious lasting harm to the bodies of POI vague and general, and their culture represents violent behavior toward perceived enemies as a statement of strength, and torture as an apotropaic gesture toward “preventing another 9/11”. Given all these factors, it is not surprising that torture is occurring.
The Greek model of evidentiary torture seems to have been fairly stable throughout classical judicial history. While hard on the occasional individual, as a practice its stability relied on the constraints that tended to protect slaves from random torture in pursuit of legal evidence. The American use of evidentiary torture, on the other hand, contains no inherent constraints and specifically rejects external constraints like Article III of the Geneva Convention, the disapprobation of the global community, and the outcry of American citizens. As a general rule, things that can’t go on tend not to do so, but Stalin, Pol Pot, and Idi Amin managed to torture to death an awful lot of people before their regimes fell, regardless.
____
1. If this last is the case, it is a bizarre and distasteful form of proxied combat, with the body of the slave standing in for the accused free man, and subjected without defense to the torture.
2. In some cases, a slave’s testimony might lead to his manumission, and was almost guaranteed to result in some upheaval in his personal circumstances.
Today I want to talk a little bit about evidentiary torture and its use in the ancient world. In the fifth century BCE in Athens, legal testimony took a couple of different forms, but the only way that the testimony of a slave could be considered by the court as anything other than part of the diegesis, the narrative (and thus hearsay), was if this testimony was obtained “basanizomenos”—by torture. This torture was called basanos, which is also the word for a touchstone, the stone that determines if gold is real. There has been a fair amount of ink spilled over basanos and its place in the Greek judicial system. It has been variously suggested that basanos was never actually used; that it was used but was decisive in the outcome of a case, such that disputes which involved basanos would not then come before a jury; that it was perhaps a preserved and ritualized form of trial by combat.1 Regardless, what we do know is that it was the practice of “pressing” the truth from a witness who might have a vested interest in lying to his questioners,2 and that basanos was the only thing that could render the testimony of a slave admissible in court. Dicasts often refer to the testimony of a slave under basanos as having the power to end a case, and no legal speech has been preserved which refers to testimony derived from basanos as being part of the argument of prosecution or defense in criminal cases.
I see this practice as being similar to the ways that torture is currently being used on “persons of interest” in American legal matters. The military and intelligence personnel who deal with the interrogation of these persons of interest arrive in the situation with the assumption that the POI has a vested interest in lying to his questioners. For a variety of reasons, which I will touch on later, this assumption—regardless of its truth—leads to the assumption that only torture will obtain reliable, timely, and valuable information. By torture, here, of course, I refer to pain, psychological abuse, stress positions, sleep deprivation, temperature stress, sexual humiliation, physical and sexual assault, drugs, poisons, psychoactive agents, “simulated drowning”, etc—all techniques used by our government and its contractors on POI.
The impetus of the Athenian use of evidentiary torture is similar to the use made of torture by Americans against POI, but the Athenian model contains something that the American one does not: constraints. The American model has been modified in order to contain as few constraints as possible: the suspects are held outside the boundaries of the United States, out of the reach of investigation. They are moved without notice or accessible records. They have been denied habeas corpus in order to facilitate this physical and legal limbo. Often, even when they are in a known location, they are not made accessible to their attorneys or family members. Information regarding charges, circumstances, and evidence pertaining to the accusations is routinely not made available to the defense “in the national interest”—and this is when these suspects are allowed a putative “regular civilian trial.” Those tried by military commissions find their defense even more sharply curtailed. I am reminded rather powerfully of the line from Silverado (1985): “We’re gonna give you a fair trial, followed by a first-class hangin’.”
The Athenian model, however, sharply constrains the torturers, not the tortured. Both parties must agree to the use of basanos in order to obtain testimony from a slave. Both parties must agree on the precise slave to be questioned, and the precise list of questions answerable by a yes or a no which will be asked of the slave during torture. No surviving legal speech contains mention of actual basanos testimony being read into evidence, and the most persuasive theory accounting for this suggests that basanos, if used, was automatically sufficient to decide the case, and cases which came before a jury were those in which either no basanos was sought or in which the circumstances of basanos could not be agreed upon by the parties involved.
If you have reservations about the practice of basanos as I have represented it here, you are not alone. The Romans continued the practice of allowing slave testimony under torture, but the writer Valerius Maximus, referring to this practice, provided three examples of Roman slaves who were tortured in order to compel their testimony. In the first example, a slave charged with murder is put to the torture, confesses to the murder, and is subsequently executed. After his execution, the “murdered” man returns home from a journey. In the second example, a slave also charged with murder proclaims his innocence through six rounds of torture and is convicted and put to death anyway. In the third example, a slave is tortured to testify in his master’s trial. Although he is repeatedly tortured, his testimony each time matches precisely his master’s assertions. Despite the evidence the slave gives under torture, his master is convicted. Dorjahn (1952), writing briefly on evidentiary torture, comments, “The first example reveals the untrustworthiness of slave-evidence. The second and third examples indicate that Roman law had little confidence in the testimony extracted by torture.”
To touch on Greek torture again, however, I believe that there is another element to the Greek insistence on obtaining slave testimony by torture: it is the torture itself that makes it possible to broach the boundary between slave and citizen and to value the word of a slave as equal to the word of a citizen. In a sense, the torture is necessary, not because the slave is necessarily less trustworthy as an individual, but because the citizens cannot allow the slave the individuality, the personhood, to testify without performing some act that further dehumanizes him and ultimately reinforces the boundary between torturer and tortured.
In her book Torture and Truth, Page duBois suggests that the Western identification of truth with torture begins with the Greeks and this practice of basanos. As Edith Hall points out in her review of duBois’s book, however, this does not address the practice of torture in parts of the world where the indigenous culture did not spring from the Greeks, but the very universality of the truth-torture association suggests some interesting things about our understanding of truth as well as our methods for obtaining it.
First, we are clearly as a culture making an assumption: everyone lies. Further, because everyone lies, we assume that any given person will lie if it is to his advantage. Obviously, then, when a person is being questioned regarding a criminal act, that person will lie, as the advantages in lying well represent a significantly better outcome for the liar than the advantages in telling the truth do for the truthful. So already we begin with the belief that anything a person being questioned says is highly suspect, if not outright and immediately dismissed as a lie.
Then you add in the idea that persuasion is soft and bad, and violence is strong and good—another set of very common assumptions. When you combine the belief that anything a person being questioned says is highly suspect with the belief that the strong, good approach to questioning a person is with force, you have set yourself up for a situation in which torture—questioning with violence—is always going to be considered a viable option, and it will always be considered a viable option because this is something that makes sense to our hindbrains. Like the Greeks, for whom basanos mediated the conflict inherent in valuing the word of a slave as equal to the word of a citizen, violent questioning methods mediate the conflict inherent in asking an enemy for help.
The impulse to torture is a behavior based not only on a series of understandable but faulty assumptions, but also a desire to exert control over a basically uncontrollable situation. You cannot make the world safe, but you can rigidly exert control over small representative pieces, and this desire to overcome fear by exerting control can lead to a suspect being seen, not as an individual, but as a cipher, a signifier for a larger situation. Domination of the suspect becomes domination of the situation. Even in the absence of constraints on this behavior, it would tend to feed on itself in a vicious cycle of escalation (see the Stanford Prison Experiment), but unfortunately, American military and intelligence personnel, finding themselves in this situation, are encouraged on several fronts to torture. Their superior officers urge them to produce results immediately, their regulations allow and specifically promote certain torture procedures while keeping the verbiage discouraging obvious lasting harm to the bodies of POI vague and general, and their culture represents violent behavior toward perceived enemies as a statement of strength, and torture as an apotropaic gesture toward “preventing another 9/11”. Given all these factors, it is not surprising that torture is occurring.
The Greek model of evidentiary torture seems to have been fairly stable throughout classical judicial history. While hard on the occasional individual, as a practice its stability relied on the constraints that tended to protect slaves from random torture in pursuit of legal evidence. The American use of evidentiary torture, on the other hand, contains no inherent constraints and specifically rejects external constraints like Article III of the Geneva Convention, the disapprobation of the global community, and the outcry of American citizens. As a general rule, things that can’t go on tend not to do so, but Stalin, Pol Pot, and Idi Amin managed to torture to death an awful lot of people before their regimes fell, regardless.
____
1. If this last is the case, it is a bizarre and distasteful form of proxied combat, with the body of the slave standing in for the accused free man, and subjected without defense to the torture.
2. In some cases, a slave’s testimony might lead to his manumission, and was almost guaranteed to result in some upheaval in his personal circumstances.
Not exactly connected
When Cyrus heard from the interpreters what Croesus said, he relented and considered that he, a human being, was burning alive another human being, one his equal in good fortune. In addition, he feared retribution, reflecting how there is nothing stable in human affairs.
Also, I think the point about slave vs. citizen is a rather important point. Citizens are NOT tortured, nor can they ever be, because of their personhood. Slaves were certainly considered untrustworthy as well, but I agree that is not why torture was employed against them. Other citizens were not considered terribly truthful for that matter, and in court cases, one of the parties (at least) is lying. Dehumanizing its object might be the only thing that torture reliably accomplishes.
I feel the need to re-read "The Iliad, or the Poem of Force" now.
no subject
Yes, this. Well said.
no subject