Torture has not been unknown in the late twentieth century, but it has often been very reluctantly or marginally known. As Alan Dershowitz has pointed out, “Torture has been off the agenda of civilized discourse for so many centuries that it is a subject reserved largely for historians rather than contemporary moralists (though it remains a staple of abstract philosophers debating the virtues and vices of absolutism).”(1)

Since 9/11, however, torture is back on several agendas, in practice as well as in moral and legal theory. The unique threats posed by the problem of terrorism certainly raise the issue in a context very different from those with which public officials, jurists, and moralists once used to deal. Except for such surveillance organizations as Amnesty International and Human Rights Watch and the historical work of few scholars like Darius Rejali, there has emerged no common way to account for the resurgence of torture, especially since the end of the Cold War.(2) Dershowitz himself, focusing precisely and exclusively on terrorism, has made a reluctant and controversial case for torture warrants in severely defined instances in order to avoid the surreptitious use (and acompanying spread) of torture throughout legal systems. Not only is torture on new agendas, but it is on them in very novel ways.

One sign of this dilemma is the extraordinarily delayed process by which current practices of torture on the part of American (and other) forces in Afghanistan, Iraq, and elsewhere have been brought to public attention. To be sure, those responsible for torture in these cases have resorted to the usual slough of euphemisms to deflect public attention, but the evidence has been in fairly plain sight for at least two years. In the March 31, 2003 issue of the Nation, Eyal Press noted that protests by both Amnesty International and Human Rights Watch early in 2003 to the Bush administration went both unanswered and generally unnoticed.(3) In October, 2003, John Jay College sponsored a conference on Torture After 9/11 at the Graduate Center of CUNY, which received very little press coverage, although most of the papers, including two by Dershowitz and Richard Posner, were highly topical.

Perhaps characteristically, it was photographs, not text, that have brought the fact of torture brutally to public notice – and to political and public discomfort. Susan Sontag has very recently analyzed this phenomenon in an eloquent article in the New York Times Magazine.(4) In this instance, photographs trumped both euphemisms and professed ignorance, and torture, when it is recorded on film or disk as well as in testimony by those who do it, cannot be simply dismissed as political opposition.

The same issue of the Times contained an op-ed piece by Adam Hochschild that condemned both the misleading euphemisms of public authorities, and also the consistency of the forms of torture currently reported with those of older torture regimes. Hochschild’s only historical error was to identify sleep deprivation (currently euphemized as “sleep management”) as a technique, “Widely used in the Middle Ages on suspected witches by inquisitors.”(5) Witches were an Early Modern phenomenon, relatively little pursued by inquisitors, but rather by secular officials. Erroneous history does not strengthen modern cases – the tormentum insomniae was indeed a recognized form of judicial torture (the only kind known to medieval and early modern Europe), and it was clearly torture, as the technical term tormentum indicates; early modern legal officials had no need for euphemisms, since torture was for them a legal incident. But Hochschild and Sontag have finally gotten the word out to a wider public: what is happening is unquestionably torture, and it is being done by Americans and probably by their allies in Iraq and elsewhere. What Donald Rumsfeld refused to address as “the torture word” is there nonetheless, and it cannot be disguised by terms like “abuses.”

One reason (aside from the bad publicity) for organizations and states to avoid the word “torture” is that the term has acquired an enormous degree of opprobrium over the past two centuries. When the practice reentered modern political usage in the nineteenth century, as Rejali has pointed out, it did so by stealth, becoming, as William Blackstone long ago pointed out, “an engine of the state, not of law” – and still later an engine of ideology, instrumentalizing the state itself. Torture is never an isolated act by individuals; it is always systemic.

And once again torture is in the hands of historians, but historians of contemporary society and their successors, who will ask the same questions as historians have always asked about it.. How is evidence to be acquired and assessed before torture comes into play? Is the “ticking bomb theory” anything more than an abstract, hypothetical, exceptional case that is so far removed from actual circumstances as to be useless? Who is to be the torturer? Will his or her work become, as it was in earlier periods, a métier vil – that is, how will torturers live with fellow citizens after their work is done and known? Will torture have been done openly or clandestinely? Who will be tortured – one of an us or one of a them? What of deaths occurring under torture – since medical personnel, both physicians and nurses, are prohibited by their own professional organizations from participating in torture – will torture be administered by amateur neurologists? Is the “war on terrorism” not the equivalent of a permanent emergency? Can torture in any form and for any purpose exist in a legal system founded on principles diametrically opposed to it? Can a state that is signatory to the modern network of conventions, treaties, declarations of human rights, and closely observed not only by other signatories, but also by official and unofficial compliance monitors and a worldwide public engage in torture under any circumstances except according to the substantially weakened doctrine of state sovereignty? That is, can the entire moral and legal apparatus erected to protect human rights during the second half of the twentieth century survive at all if torture, however selectively and dispassionately applied, is introduced into a democratic society?

Brian Tierney has made the point that the early part of the ancien régime whose legal identity was shaped between 1100 and 1800 created not only torture, but also an idea of human rights, originally based on the image of humans “as children of a caring God.”(6) “But,” Tierney continues, “the idea was not necessarily dependent on divine revelation, and later it proved capable of surviving into a more secular epoch.” Now that torture is visibly and terribly back on a number of agendas, historians and everyone else must call it by its proper name and face it for what it is, for a denial of human rights is now tantamount to a denial of humanity.

1. Alan Dershowitz, Why Terrorism Works (New Haven and London, 2002), 136.

2. Darius Rejali, Torture and Modernity: Self, Society, and State in Modern Iran(Boulder, CO, 1994); most recently, idem, “Modern torture as a civic marker: solving a global anxiety with a new political technology,” Journal of Human Rights 2:2 (2003), 153-171. Kenneth Cmiel has recently pointed out how slender is the scholarship on modern torture in his article, “The Recent History of Human Rights,” American Historical Review 109:1 (2004), 117-135, at 134.

3. Eyal Press, “In Torture We Trust?” The Nation, March 21, 2003. So did the article by William Schulz, “The Torturer’s Apprentice,” The Nation, May 13, 2002.

4.Susan Sontag, “Regarding the Torture of Others: Notes on what has been done – and why – to prisoners, by Americans,” New York Times Magazine, Sunday, May 23, 2004, 24-29, 42.

5. Adam Hochschild, “What’s in a Word? Torture,” New York Times, Sunday, May 23, 2004, Week in Review. May 23 may go down as the day on which a number of commentators finally faced up to the practice of torture – on 60 Minutes the same evening, Andy Rooney echoed both Sontag and Hochschild.

6. Brian Tierney, The Idea of Natural Rights ( Atlanta, 1997), 343.