The Bush government's use of torture invites comparisons with "the Spanish Inquisition" -- a buzzword for judicial torture and the legal system that sustained it.
That comparison, however, misses three points about inquisitorial procedure. Considered rightly, the comparison does not reflect well on the Bush administration and its use of torture.
- Inquisition was rule-bound and consistent with existing societal norms. Unlike today, the use torture in the sixteenth and seventeenth centuries was a legal and accepted means for obtaining a conviction. But it was also considered a necessary evil and therefore hemmed about with rules to prevent it from being used against the innocent. Under the prevailing rules of criminal procedure, for example, a court could not apply torture unless it already possessed sufficient indication of guilt for the crime, such as eye-witness testimony. This leads to a second point.
- Judicial torture was not forensic. It was not meant to produce information about a crime. Rather, its purpose was get a suspect to confess to a crime that the court already knew (or thought it knew) he/she had committed. To be sure, suspects were asked about accomplices. In cases of witchcraft this often led to wild-fires of accusation, prosecution, torture, and conviction. Still, the fundamental purpose of torture was to secure confession to a proven crime.
- Sixteenth- and seventeenth-century courts understood that people would say almost anything to escape the pain of torture. That is why a confession elicited under torture was, by itself, insufficient to secure a conviction. Ordinarily, securing a conviction also required getting a confession without torture. Typically, the suspect would be given a day or so to recover and would then be asked the same questions posed under torture. If the suspect recanted, the confession given under torture was invalidated. In most circumstances, conviction was possible only with a freely-given confession, or if a confession exacted under torture were subsequently confirmed, point for point, by a confession given without torture.
I'm not defending judicial torture, of course. This system was shot through with contradictions. It recognized no universal human rights. It was grossly imbalanced against the accused. One could go on and on about its injustices. Except for present-day supporters of torture, we are all the heirs of eighteenth-century reformers who determined that the regime of judicial torture was inherently unjust and should be abolished.
The main point I want to stress is that even before the Enlightenment, the use of torture was governed by rules that were predicated on a realization that statements made under torture are inherently unreliable.
The Bush administration does not appear to have been troubled by such qualms.