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The Torture Debate and the Innocence Project
    There is a worthwhile and productive debate going on in our society about two major issues: the utility, morality and techniques of torture as applied to enemies of our nation in the context of modern terrorism AND the now frequent evidence that many many people in our nation are convicted of crimes that they did not commit.  
    The why and how of that situation (the far too frequent discovery of exculpatory evidence 20 years after some poor schlep is sent to jail) is the source of much debate on all sides and of great sociological interest.
    It is my position that discussing this rationally and intelligently is in our nations best interest.  But, I also feel that we cannot have that debate if we ignore the crucial link between the high incidences of wrongful and occasionally deliberate convictions of innocent men and women and the question of the utility of torture.

    Not long after September 11, 2001, famed "liberal" scholar Alan Dershowitz made the surprising and irrational argument that somehow if we tortured in the "ticking time bomb" situation we MIGHT be morally and legally justified in doing so.
    Personally, I think Mr. Dershowitz knows this is baloney and he was just trying to position himself as a non-liberal in a time when that was not in vogue.  I think it is much the same as how that maniac drunk Hitchens occasionally slips left of his Mussolini-like worldview for a few minutes to prove that he’s not really a right wing lunatic ala Pat Robertson or Tom Tancredo, but in fact, he really is, and not that many people pay attention to him anyway.  I don’t imagine 40 years from know someone will be authoring a book titled "Why Hitchens Mattered," but you really never know.
    But say for a moment that we accept Dershowitz’s argument that torture might be justified in that situation and morally and legally right.
What exactly would that require?
    It would require the capture of the correct evil-doer, the one with the knowledge of the plot, it would require that the capture be timely enough in advance that it would allow law enforcement to take action, it would require that the torture be narrowly confined to that person and instance where genuine evidence of wrongdoing existed.
So – say all of those things are true.  Could we then torture?
    Well, kind of a moot point apparently, because it seems we are torturing without any of those things being true.  Apparently we have been torturing innocent men and women into confessions about things completely unrelated to terrorism, and apparently, we’ve been doing it just about as long as the option has been available to us as a society.  This practice dates long beyond the Inquisition, but that’s a good place to look because it was so widespread.
    Once again in the New York Times, you can read the story of how and innocent young high school student was convicted of the rape and murder of a young woman he attended high school with.  Apparently his great link to the crime was that he had been particularly distraught at the young victims funeral.  Under a very strong interrogation that I don’t think involved physical torture, but undoubtedly involved threats and coercion the young man confessed to the murder.  Nearly 20 years later, DNA evidence proves that the young man, no longer young, did not commit the crime.  Leaving aside the brutal question of what you do for somebody who needlessly gave up 20 years of his or her life, this raises a deeper question:

Why do we find so many innocent men and women confess to crimes that they did not commit?

    The answer brings us back to the torture debate.  The answer is that under duress, not torture per se, but duress, a surprising number of people will tell you anything you want if they think it will buy them a few minutes of peace.   There is extensive psychological evidence compiled over centuries that shows a basic fact about human nature:

Most of the time, people tell you what they THINK you want to hear.

    This is a near universal fact agreed upon by psychologists, doctors, torture victims and torturers  -- under extreme duress, and especially under torture, people will say or do just about anything.  The truth of the matter is simply not important to that person at that time, and there is no way it could be.  We are also discovering that truth is not really all that important to the law enforcement side of the picture either.  It seems brutally clear that the confession itself is much more important than the truth, and frankly, I’ve always wondered why so many people confess.  Are criminals really filled with that much remorse that they just admit it?

    There is a scene in the movie Reservoir Dogs that tells this story perfectly.  Harvey Keitel explains to his criminal accomplice:

"Torture a guy long enough, he’ll tell you he’s the Virgin Mary."

    And that’s what it all comes down to.  Even with the perfect confluence of events, catching the right bad guy at the right time, there is a better than average probability that information or confession gained by law enforcement or counterterrorism interrogators would be incorrect, misleading, or simply what the victim thought they wanted to hear.  
    More than anything else, it is more risky, unwise, and more dangerous to act on information that has a high likelihood of being false or misleading.  That would (and has) lead to more people’s deaths, injury and more tragedy almost without exception.

   A historical example is thus:  The Charge of the Light Brigade.

    The light brigade charged through the so called Valley of the Shadow of Death. With tremendous bravery and courage, up the wrong hill, based on incorrect information on what their orders were.  They suffered horrific casualties, briefly, although successfully, captured the wrong set of guns and managed to accomplish nothing at all militarily at the cost of over half their unit.

    THAT is the risk posed by torture.  Taking away the moral argument, there is the simple fact that acting on the wrong information almost always has a negative outcome.

    This is where the Innocence Project comes in.  They are, at great pain, both in effort, emotion and tears, attempting to right the wrongs done to these collateral victims.  The Innocence Project, in taking up the cause of the wrongly convicted, treads were ever so few of us are willing to tread – into the zone where we like to think we are different from other nations, nations like Soviet Russia, Cambodia, China or a myriad other nations which have practiced torture fairly openly.
    But let us be at least a little bit honest about our history.  Whilst we have and like to pretend that our system of justice is predicated on one subjectively "better" than other systems, the reality of Western Civilization is thus:
    The practice of torture has long been applied to both judicial and extra-judicial proceedings for nearly as long we can remember.
    And innocent men, women and children have been tried, convicted and punished individually and en masse for nearly as long as we can remember as well.
    Our system of laws, deriving from the French, English and Spanish governments of the 17th and 18th centuries comes from ones which beheaded aristocrats, tortured non-Catholics and even as recently as the last 15 years in Northern Ireland jailed men and women without actual charges or evidence   -- so the pretense of a subjective "our system is better" is without merit or basis.
    What we did offer to the world was a concept that the accused had rights that could not be stripped – inalienable rights we like to say – that  overrode other societal interests.  The presumption of innocence, the presence of counsel, the impartiality and fairness of the trial – all of these are not distinctly American ideas, but we did make it our best intention to include them as a key part of the judicial system.
    But whilst cruel and unusual punishment was explicitly forbidden it is most interesting to note that cruel and unusual interrogation was not.  It seems that the founding fathers either overlooked the practice of torture (something hard to imagine in the context of the British armies despicable practices against the colonial rabble rousers ) or they assumed that later generations of founding fathers would "figure it out."

    But it’s important we say this.  It’s important we understand this without question or ambiguity:

Confessions and information gained through torture probably have just about as much value, merit or truth as conversions to Catholicism under the Inquisition, i.e. none.    Were we to act on these false claims we would be like the Light Brigade, charging up the wrong hill to seize the wrong set of guns leaving our dead comrades dead on the slopes slippery with our own blood – it’s just that stupid.

So for a moment, I’d like to stop moralizing about torture and stick to one basic simple fact: it’s stupid and it doesn’t work.

Originally posted to demosthenes2007 on Tue Apr 28, 2009 at 10:02 AM PDT.

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