Posted by Sappho on May 30th, 2007 filed in Law, Peace Testimony, Torture, TV
I feel uneasy arguing about torture on utilitarian grounds. I’m troubled by the fact that this country has come to the point of arguing about
enhanced interrogation techniquies torture at all. Andrew Sullivan is right (as is the Vatican); torture is an intrinsic evil that can’t be justified for any end. And as for the act-based utilitarian arguments can be made for torture in “ticking time bomb” situations – well, the fact that act-based utilitarian arguments can so easily be used to lead people, given a choice between a real evil and a hypothetical one, to choose the real evil, only serves to discredit act-based utilitarianism in my eyes.
Still, if act-based utilitarianism, applied to torture, leads straight to hell, there may yet be a modest place for rule-based utilitarianism in the argument. There may be a place, that is, for the kind of argument that looks, not for whether in each individual (and maybe far-fetched) case you might be able to squeeze some benefit out of torturing that you couldn’t out of leaving the prisoner altogether alone, but for the kind of argument that examines the real world consequences of encouraging interrogators to use
enhanced interrogation techniquies torture, compared to the real world consequences of interrogators who instead use the sorts of psychological methods that police now use. After all, as Hilzoy has pointed out
Arguing about torture without asking [whether it’s actually your most effective technique] is like arguing about whether you must, absolutely must, eat your children to keep yourself from starving to death without first checking to see whether you have any other food available.
… you can be completely serious about all kinds of things without being willing to do literally anything to advance them. (Quick: would you be willing to rape children to win the heart of your true love? No? Then I guess you don’t really love him or her, do you?? — That’s the same specious argument.) More to the point, though, you can tell who is serious and who is not by noticing who actually stops to think about whether torture is effective. People who don’t bother to ask that question are not serious about winning; they’re in love with a fantasy of themselves as the person who is tough enough to do all those dirty things that have to be done while other people just wring their hands and whimper.
I’m thinking about this because, during a week in which bloggers have been discussing expert testimony that “the harsh techniques used since the 2001 terrorist attacks are outmoded, amateurish and unreliable,” I’ve been reading Homicide: A Year on the Killing Streets, and one of the things that struck me in reading the book was David Simon’s account of how police interrogation actually works. As Simon describes it, interrogation is a morally compromised process, in which police officers may use “reasonable deception” and a variety of psychological manipulations to extract confessions that are never fully free:
Miranda is, on paper, a noble gesture which declares that constitutional rights extend not only to the public forum of the courts, but to the private confines of the police station as well. Miranda and its accompanying decisions established a uniform concept of a criminal defendant’s rights and effectively ended the use of violence and the most blatant kind of physical intimidation in interrogations. That, of course, was a blessing. But if the further intent of the Miranda decision was, in fact, an attempt to “dispel the compelling atmosphere” of an interrogation, then it failed miserably.
And thank God. Because by any standards of human discourse, a criminal confession can never truly be called voluntary. Wtih rare exception, a confession is compelled, provoked and manipulated from a suspect by a detective who has been trained in a genuinely deceitful art. That is the essence of interrogation, and those who believe that a straightforward conversation between a cop and a criminal – devoid of any treachery – is going to solve a crim are somewhere beyond naive.
And Simon describes the various ways in which police lie and manipulate in the interrogation room. It begins with a determined effort to demonstrate that the detective is in control before the suspect gets his chance to speak.
When the detective arrives with pen and notepaper and begins the initial monologue to which a potential suspect or witness is invariably subjected, he has two goals in mind: first, to emphasize his complete control of the process; second, to stop the suspect from opening his mouth. Because if a suspect or witness manages to blurt out his desire for a lawyer – if he asks for counsel definitively and declines to answer questions until he gets one – it’s over.
To prevent that, a detective allows no interruptions of his soliloquy. Typically, the speech begins with the detective indentifying himself and confiding that this is some serious shit that the two of you have to sort out. In your favor, however, is the fact that he, the detecgive, is a fair and reasonable man. A great guy, in fact – just ask anyone he works with.
If, at this moment, you try to speak, the detective will cut you off, saying your chance will come in a little while. Right now, he will invariably say, you need to know where I’m coming from. Then he’ll inform you that he happens to be very good at what he does, that he’s had very few open cases in his long, storied career, and a whole busload of people who lied to him in this very room who are now on Death Row.
Control. To keep it, you say whatever you have to. Then you say it over and over until it’s safe to stop, because if your suspect thinks for one moment that he can influence events, he may just demand an attorney.
Even if a suspect does indeed ask for a lawyer, he must – at least according to the most aggressive interpretation of Miranda – ask definitively: “I want to talk to a lawyer and I don’t want to answer questions until I do.”
Anything less leaves room for a good detective to maneuver. The distinctions are subtle and semantic:
“Maybe I should get a lawyer.”
“Maybe you should. But what would you need a lawyer if you don’t have anything to do with this?”
Or: “I think I should talk to a lawyer.”
“You better be sure. Because if you want a lawyer then I’m not going to be able to do anything for you.”
As I read Simon’s account (and he goes on to describe the ways you may manipulate a suspect into a confession after you’ve gotten past that “keep him from asking for a lawyer” hurdle), I was struck by two contrasting impressions. The first was that, after all, there was a certain parallel in his defense of the moral compromises that take place in normal police interrogation and the defenses that are now being made of “enhanced interrogation techniques.” Like the current crop of proponents of torture, Simon conveys a sense of the importance of having cops, maybe a bit rougher than we’d like to think of ourselves as being, who are willing to do the dirty work they need to do (“And thank God.”) to get a confession out of a killer. Could a Quaker, in good conscience, tell the lies that detectives do, to get a confession?
A small, wavering sound of protest passes your lips and the detective leans back in his chair, shaking his head sadly.
What the hell is wrong with you, son? You think I’m fucking with you? Hey, I don’t even need to bother with your weak shit. I got three witnesses in three other rooms who say you’re my man. I got a knife from the scene that’s going downstairs for latent prints. I got blood spatter on them Air Jordans we took off you ten minutes ago. Why the fuck do you think we took ’em? Do I look like I wear high-top tennis? Fuck no. You got spatter all over ’em, and I think we both know whose blood type it’s gonna be. Hey, bunk. I’m only in here to make sure that there ain’t nothing you can say for yourself before I write it all up….
The first detective looks up from the form, his eyes soaked with innocence. “He came at you, huh?”
“Yeah, he came at me.”
End of the road, pal. It’s over. It’s history. And if that police detective wasn’t so busy committing your weak bullshit to paper, he’d probably look you in the eye and tell you so. He’d give you another cigarette and say, son, you are ignorance personified and you just put yourself in for the fatal stabbing of a human being. He might even tell you that the other witnesses in the other rooms are too drunk to identify their own reflections, much less the kid who had the knife, or that it’s always a long shot for the lab to pull a latent of a knife hilt, or that your $95 sneakers are as clean as the day you bought them.
Well, then, isn’t it a good thing for those of us who may not want to dirty our hands that we have others to tell these lies on our behalf? In form, the defense of the sometimes morally compromised work of the homicide detective, as it really works, is not so unlike the defense of torture. Especially when you use the time-honored method of prettying torture up by calling it “enhanced interrogation.”
But, when I compare what’s actually being justified by Simon with what’s now actually being justified by the partisans of torture, the analogy breaks down. That’s when I realize how very much rather I’d have Pembleton in that interrogation box, acting on my behalf, than Dirty Harry. That’s when I realize how much I prefer the world of cops who, however much they may push their way right up to the line in trying to press that confession out of an unwilling suspect, are constrained by law to avoid actual force to the world in which my interrogator is simply bigger and meaner and more violent than the other guy. Because, however morally compromised by deception the real world of interrogation may be, in the world where interrogators use psychological methods the innocent have a fighting chance.
It’s not that you’ll never get a false confession; there’s no method in the world that will get you true confessions and guarantee you’ll never get false confessions. Or false information from witnesses. Elsewhere in the book, Simon describes a case where police and prosecutor time gets wasted for months because two teenagers, scared one of them will be charged for a murder about which neither of them really knows anything, finger the wrong guy. The web site for the Reid Technique of interrogation devotes a page to defending the method from criticism, including the criticism that it results in false confessions.
Re: Miscarriages of Justice… This study reports on 350 cases from the 20th century in which the authors claim that innocent people were convicted in homicide cases. Of these 350, 49 cases involved confessions (14% of the total). However, many of these interrogations involved clearly coercive tactics, including beatings, and days of uninterrupted interrogation.
A critical review of this study, Protecting the Innocent: A Response to the Bedau-Radelet Study, was published by Markman and Cassell in the Stanford Law Review, November, 1988.
Re: The Consequences of False Confessions…
In this study Ofshe and Leo report on 60 cases from the prior 30 years in which they claim innocent people falsely confessed in homicide cases. These 60 cases were broken down into 3 groups: cases that were proven to be false (34); cases that were presumed to be false (18); and, cases that were considered to be highly probable to be false (8).
Of these 60 cases of purported false confessions, 8% were from juvenile suspects and 28% were from individuals that were apparently emotionally or mentally handicapped. It should also be noted that 30% of the cases involved interrogations that lasted over 12 hours.
Get a suspect in the box for long enough, and, even absent outright physical coercion, the innocent just might break down and confess. But let’s look back at that description of police methods that Simon gave. Who’s more likely to break down under a “we know all” type manipulation, where you pretend you have more physical evidence and more solid witnesses than you really do? Isn’t the guy who knows he stabbed with that knife a wee bit more likely to believe the line about three witnesses being able to identify him, his prints being on the knife, and blood spatters on his sneakers, than the guy who knows that he had nothing to do with the crime and was nowhere near the scene? But put those two guys in a prolonged stress position, or face them with waterboarding or a mock execution, and that gap between innocent and guilty will narrow pretty sharply. There’s no evidence whatsoever that those of us who are innocent and know nothing aren’t just as willing and able to give ourselves and our friends up, faced with physical pain, sleep deprivation, or the threat of death, than the guiltiest terrorist in the world.
Same deal with that other favored psychological method of ordinary interrogation, one that’s made much of both in Simon’s book and in web sites, the “out.” Here’s howstuffworks describing how the “out” works in a real interrogation.
Lauria: How would you describe Ann Marie?
Frederick: She was a very hard baby. She would, uh, cry all the time. Always wanted to be held … I mean Annie just, I mean she always looks like she’s beaten. She’s always climbing or you know. I always can see a little bit of bruising and scrapes or whatever on her back. Her shins are always bruised.
Since Frederick appeared to be making excuses for Ann Marie’s injuries and setting up a justification — “She was a very hard baby” — and since she was taking care of Ann Marie when the injuries occurred, Lauria predicted guilt and began interrogating her. He proceeded to subtle confrontation…
Detective Lauria began developing a theme about an out-of-control situation — Frederick had not premeditated the abuse, she just hadn’t been thinking clearly. But Frederick didn’t like that theme. She asked the detective why he wasn’t believing her story. Lauria then switched to an out-of-control “split second” in which Frederick had hurt Ann Marie. He explained that Ann Marie’s injuries were definitely not from a fall. Someone else had inflicted them, possibly in a “split second” of irrationality. Frederick was listening now, apparently clinging to the “split second” qualification. Lauria further developed the theme by bringing up Ann Marie’s difficult nature and how hard she was to care for — blaming the victim, which Frederick had already shown a tendency toward. Frederick began nodding her head, and Lauria set up an alternative. He told Frederick that “without an explanation of what happened people would assume the worst.” The implied contrast had already been set up: a cold-blooded, vicious attack on a toddler versus a momentary loss of self-control when dealing with a difficult child. The approach worked.
(You can see a fullar transcript of the questioning at the howstuffworks link.)
Again, an innocent person gets a fighting chance here. In order to get that confession, Lauria had to sharply observe Frederick’s words and reactions – what hints was she giving as to what kind of “out” might be acceptable to her? Suppose that, instead, he’d been able to simply waterboard her? Either way, he gets a shot at getting the mother who actually killed her child to break down, but if I were the mother who hadn’t killed my child, I’d be a heck of a lot better off facing the interrogator who’s observing me for signs of guilt and trying to figure out how I might want to justify my deed than the one who’s just inflicting as much suffering as he needs to get me to break.
Torture’s a marvellous method for Big Brother to break Winston Smith, but it’s pretty darn crappy at protecting the innocent. And any prison, any Abu Ghraib, any Gitmo, and any set of people sent for “extraordinary rendition” will have people who were in the wrong place at the wrong time, along with those hardened terrorists that you may like to think Rambo or Dirty Harry is dealing with on your behalf.
My favorites of my previous posts on torture:
Recent posts by other bloggers:
Steven Barnes on Torture, West Point, and “C”.