EVIDENCE GAINED FROM TORTURE: WISHFUL THINKING, CHECKABILITY, AND EXTREME CIRCUMSTANCES

The article I am about to summarize and comment on was written by James Franklin and published in the Cardozo Journal of International & Comparative Law. This is a journal published three times a year by students of the Cardozo school of law at Yeshiva University located on lower Fifth Avenue in New York City’s Greenwich Village.

Franklin’s article begins upfront by clarifying some definitions and phrasings. He expresses the importance of identifying that the discussion of whether torture is effective as an interrogation technique is separated completely from the argument about whether or not it is ethical or moral. He makes a great point in stating that it should first be determined if torture even works before shifting the focus to its legality. He also clarifies the meaning of effectiveness by saying that torture is not akin to a trial in that evidence has to be found “beyond a reasonable doubt”. Rather he believes the information must meet a standard he calls “quite probably true”.  Franklin believes that in order for torture to be an effective interrogation tool, the information obtained must be verifiable. This is his main point of discussion which seeks to dismantle the anti-torture advocates argument that people will say anything under duress to make the pain stop. He believes that in order to say torture is effective, the interrogators must receive falsifiable information from the detainee that can be checked for authenticity. This is the only way one can say without a doubt that torture is an effective strategy.

Franklin continues his article by outlining cases from history where torturers “fact-checked” the information provided by detainees before passing judgements or making decisions. He also included times throughout history such as the European witch hunts in which tens of thousands were killed based on false confessions under duress or torture. The article continues with multiple examples of torture revealing the crucial fact necessary to thwart the plot or save the day, with only one instance of torture failing to provide useful information. That instance was the interrogation of Ibn al-Shaykh al-Libi, a Libyan al-Qaeda operative captured while fleeing Afghanistan around the end of 2001. He provided false information to his captors that Iraq had given chemical and biological warfare training to Al-Qaeda. This information was heavily relied upon by the Bush administration as the link between Iraq and Al-Qaeda.  Franklin concludes by stating the importance of further research as the dangers posed by external threats are greater now than ever before and the ability to act quickly in the interrogation process could save countless innocent lives.

Critique:

This article definitely had a slant that was pro-torture in nature as was evidenced by some of the verbiage used by the author. Statements such as one claiming the freedoms we have now are a result of torture techniques used in the past American wars are evidence to support this conclusion. The article focused much of its body discussing the potential benefits of torture by citing multiple cases where torture or the threat of immense bodily harm caused detainees to offer up useful information. Whereas only one example was used to show how torture can also be ineffective in revealing the truth. I did like however that even though the article itself was biased in favor of torture, it specifically spelled out in the earlier portion that very little empirical research has been done on the topic. The academic community would shun any “respectable” researcher who would seek to compile real cases of torture to see if in fact it proved effective. Even in places where torture is accepted, those who’ve written on the subject with first-hand experience receive little recognition due to the subject’s taboo nature. Nobody is going to take the word of a torturer who says it is very effective because society “rightly or wrongly” sees him/her as a bad guy/girl. It seems like the issue of torture is in the same boat as the rest of the methodologies studied this semester in that more research is needed in order to prove effectiveness. This is one methodology in which I have no interest in being a part of its future. 

Citation:

Franklin, James. (2009). Evidence Gained from Torture: Wishful Thinking, Checkability, And Extreme Circumstances. Cardozo Journal of International & Comparative Law. Mar2009, Vol. 17 Issue 2, p281-290.