Extreme practices call for expert oversight and enable a concentration of power in the hands of those who know best. In this sense, torture not only provides information and eliminates the active minority, but also concentrates power into the hands of the administrators. It centralizes power, produces a new judiciary, and immunizes the torturers—precisely because they are the ones who have asserted and assume the greatest power of all, the power over life and death. Others yield to their audacity. The concentration of power through terror has a long history.
Centuries after the Justinian code, in the twelfth and thirteenth centuries, Roman law resurfaced and began to compete with Visigothic and other Germanic legal regimes. Torture was reinscribed in legal codes in the Middle Ages, once again forming part of fully coherent codified legal systems. Alfonso X of Castile’s codification of laws, Las Siete Partidas, drafted by a collective body of jurists in the mid-thirteenth century and completed around 1265—which the legal historian Jesús R. Velasco has brilliantly elucidated for us—integrated torture into the fabric of the law, just as the Digest had before it.7 Specifically, the Partidas incorporated torture into Part Seven, Title 30, “Concerning Torture,” simultaneously valorizing torture and at the same time taming it—protecting against it, rarifying its practice, ensuring against excess. Torture was only permitted under an order of a judge and could only be administered if there was one credible witness and the suspect was “a man of bad reputation or of inferior rank.” Certain classes of individuals could be tortured, others not. A certain restraint in questioning had to be respected. Even more importantly, and by contrast to much of the Spanish Inquisition, the risk of harm fell on the inquisitor, not on the tortured victim.8 There would be consequences for abuse.
Torture was being regulated and regularized in those early centuries. These same routines were replicated in the Spanish Inquisition, which extended from 1478 to 1834, as is reflected in the various inquisitorial instruction manuals, like that of Gaspar Isidro de Argüello in 1627, Instructions of the Holy Office of the Inquisition (1484–1561), which refer to half proofs and penance, to confiscations, to perpetual prisons, and to other regulated practices of punishment.9 Torture was brought into the fabric of the law and rarified at the same time. The rarefication in the Medieval Period served a political end: to make torture even more foreboding. Had torture become too generalized or too frequent, it might have lost its exceptionality and terrorizing effect.
Torture was rarely applied, and, as one historian notes, inflicted with “the utmost care and moderation.”10 Look, for instance, at the archive of the Inquisition court at Pamiers headed by Bishop Jacques Fournier from 1318 to 1325 in southern France, described masterfully by Emmanuel Le Roy Ladurie in Montaillou: The Promised Land of Error (1978). The archive is striking in part for the lack of confessional torture and the low number of death sentences. During the period in which it operated, between 1318 and 1325, the Inquisition court at Pamiers conducted 578 interrogations, consisting of 418 interrogations of accused persons and 160 of witnesses, in a total of 98 cases that involved 114 persons accused of being heretics, mostly of Albigensian persuasion. Of those 98 cases, only one was accompanied by torture. According to Le Roy Ladurie, “In only one instance did Jacques Fournier have his victims tortured: this was in the trumped-up case in which French agents made him bring against the lepers, who brought forth wild and absurd confessions about poisoning wells with powdered toads, etc.”11
The rarity achieved by the limited use and legal regulation of torture in the Medieval Period served to ensure its persistence and role as a social epistemological device—as a producer of truths, especially truth about itself. Centuries later, the Bush administration and its top lawyers re-created a legal architecture surrounding the use of torture. It included a list of approved torture techniques. It also included a requirement that Secretary of Defense Donald Rumsfeld himself approve a small subset of the more torturous techniques. This creation of an internal legal framework to carry out torture, through legal memoranda and cable authorizations, had the very same effect: to centralize power, to appropriate judicial decision-making, to authorize the administrators, to empower them, and to immunize them. The legal framework served to legitimate the practices themselves.
Third, the legal regulation of terror also legitimizes the larger political regime. Here too there is a long history, as evidenced by the surprising but highly regulated practices of torture on slaves during the antebellum period in the American South. Once again, these effects live on.
In the antebellum period, the southern judiciary proactively policed the admissibility at trial of slave confessions given under torture—at a time when even more brutal treatment of slaves by their masters was commonplace. Those remarkable judicial decisions rendered the system of chattel slavery more palatable, and stable. The judicial oversight subtly negotiated an equilibrium that served to maintain the political economy of slavery. Still today, the use and legal regulation of torture or drone strikes by American presidents work in a similar way: they stabilize and balance American interests in such a way as to secure and steady the political regime. The intricate legal negotiation over the use of torture during the Bush administration, for instance, as well as President Obama’s decision not to prosecute anyone for the excesses, were carefully negotiated efforts at stabilizing the United States during a time of global political turmoil.12
Chattel slavery in this country was, without doubt, a form of terror. One need only glance at antebellum judicial decisions, which regularly and nonchalantly recount inhuman forms of terror routinely administered on slaves. “Bob [a slave] was taken out by Joshua Morse, a son-in-law of his master, and some of the other neighbors, and severely whipped, and afterwards salted, by pouring the salt upon the wounds made by the blows inflicted,” a typical decision reads.13 The system of slavery was inhuman, perpetrating a permanent state of terror among a whole class of society.
But remarkably, within that tortured system, the state judiciaries tinkered with the admission of coerced confessions. In Alabama, for instance, in a series of judicial decisions regarding tortured slave confessions beginning at least in 1847, the Alabama Supreme Court developed a strict evidentiary rule policing the admissibility of slave confessions at trial. As the Alabama justices declared in 1860 in Mose (a slave) v. The State—a case in which the slave, Mose, alias “Moses,” was charged with the murder of his overseer, a white man named Martin Oaks—“It is a rule of great strictness, that if a confession has once been obtained by undue means, no subsequent confessions of like character are evidence, unless it be shown that the influence has been removed.”14 On the basis of those decisions, the Alabama justices would reverse slave convictions and sentences of death, even in the most extreme cases of injury or death to the slave owner.
The State of Alabama v. Clarissa, a slave is a good illustration. The slave Clarissa, whose attorney won a retrial from her sentence of death, was convicted for attempting to poison her master, Hezekiah Bussey, and her overseer, Nelson Parsons—two white men. There was evidence of poisoning, Clarissa had confessed at least twice, and her mother had admitted to seeing Clarissa spike their coffee. Clarissa’s first confession, the clear product of a severe whipping, was not admitted at trial, but her second tacit admission was presented to her jury. Defense counsel moved to suppress it, on the grounds that it was not reliable, but the trial court allowed it in. On appeal, the Supreme Court of Alabama declared that it should not have been admitted at trial, and indicated that, at any retrial, the second confession would not be admissible. The Alabama Supreme Court recognized that, ordinarily, a slave’s confession obtained without brutality should be admissible, even though it alone should not be used to prove a slave’s guilt. As Justice James Ormond explained, “The confessions of slaves, freely and voluntarily made, uninfluenced by threats or promises, must, as in the case of white persons, be received in evidence”; but the justice immediately added that “it must be admitted, their conditio
n in the scale of society, throws a certain degree of discredit over any confession of guilt they may make, and renders it unsafe if not improper, to act upon such evidence alone, without other corroborating proof.”15
Without deciding whether a second confession always had to be excluded after a first coerced confession, the Alabama Supreme Court intimated that it would be better practice never to admit a second confession after a beating: “When a confession has been extorted by threats or punishment, or obtained by promises of favor, it would seem that no subsequent confession of the same facts, ought in the case of slaves, under any circumstances to be admitted, as even a recantation of what was once admitted, would be to expose the accused again to punishment.”16 In the end, however, the Alabama Supreme Court refrained from articulating such a strict rule, declaring instead that in this case, on the limited facts of the case, there was a clear and independent reason to exclude the second confession and reverse the conviction.
It may seem surprising or paradoxical that the antebellum courts would protect a slave accused of poisoning her master. But there is an explanation: the intricate legal framework surrounding the criminalization and punishment of errant slaves during the antebellum period served to maintain and stabilize chattel slavery in the South—it served to equilibrate the political economy of slavery. It served to balance interests in such a way that neither the slave owners nor the slaves would push the whole system of slavery into disarray. And the courts and politicians carefully handled this delicate balance.
So, for instance, to avoid the excess of slave owners taking justice into their own hands and murdering their slaves—or on the other hand, simply selling an accused slave without disclosing their alleged crime, or covering up for a slave because of the possible loss—the state of Alabama would compensate an owner for half the value of his slave if the slave was sentenced to death at a criminal trial and executed.17 This was a delicately negotiated arrangement that was understood by all parties—including the slaves. In the 1858 case of Bob v. State, for instance, it is reported that the jailor who held the slave, Bob, in custody, told him that he might as well confess to avoid being lynched and so that his master could at least get compensated for his value.18
In fact, the financial loss associated with the execution of a slave was viewed as the only way to guarantee that owners made sure their slaves received a fair trial. During the 1842–1843 legislative session, the general assembly passed a bill providing for full compensation for executed slaves—increasing the restitution from 50 percent to 100 percent. The governor, Benjamin Fitzpatrick, vetoed the provision because it eliminated any incentive to ensure slaves received a fair trial. In a veto message to the general assembly, the governor wrote that “humanity alone, as the statute now stands, is the only inducement to the master to take that interest which is essential to insure his slave a fair and impartial trial when implicated.”19
Other complex rules surrounding slave trials served to optimize the risk of abuse and to stabilize the system. Throughout the nineteenth-century antebellum period, for instance, slaves charged with a capital offense in Alabama were afforded legal counsel at trial at their owner’s expense. Slaveholders also managed the slave criminal process by means of the slave’s right to a jury trial and the fact that slaveholders had to sit on slave juries. Slaveholders were also guaranteed a certain number of votes at a slave’s trial—again, a delicate balance. There were other accommodations in the law of slave trials. For instance, rules allowed slaveholders to be competent witnesses at the trial of their slaves—even though they were interested parties. The courts also placed discretion in the hands of slaveholders, who not only determined guilt, but punishment, value, and reimbursement as well.20
These complex negotiations over the criminal rules accompanied the practices of slavery in Alabama—a form of terror—and served to legitimize the larger political economy of chattel slavery. They offered stability to the slave economy by making the different participants in the criminal process and in slavery—the slave owners, the foremen, the magistrates, and the public at large—more confident in the whole enterprise. The extensive legal regulation of the torture of slaves was not about justifying torture, nor about resolving philosophical or ethical questions. Instead, it served to strike a balance and stabilize the institution of slavery.
Throughout the history of the regulation of terror—from the antebellum period to the regulation of drone strikes—we have seen formal legal frameworks serve the larger ends of legitimizing the institutions of power, and, more generally, the prevailing political economy. In the end, the legal memos on the applicability of the Geneva Conventions, on the use of torture, and on the propriety of using drones against US citizens all served to legitimize the war on terrorism—and, more generally, the counterinsurgency paradigm of warfare.
Fourth, the ability to terrorize—and to get away with it—has a powerful effect on others. The audacity and the mastery impress the general masses. Something about winning or beating others seduces the population. People like winners, and winning is inscribed in terrorizing others.
The desire to dominate, the will to win, the ambition to beat others—it is impossible to extricate these deep impulses from the reality of terror. Dostoyevsky said it best, perhaps, through the voice of his Grand Inquisitor in the Brothers Karamazov: “We will force them into obedience, and it is they who will admire us the most. They will regard us as gods, and feel grateful to those who have consented to lead the masses and bear their burden of freedom by ruling over them—so terrible will that freedom at last appear to men!”21 Succeeding, winning—these are inscribed at the heart of terror, and they resonate deeply with men and women. The fact of winning is somehow tied to domination, mastery, victory—to beating the other. Perhaps we should not be surprised at the double meaning of that expression: “beating the other.” It seamlessly combines torture and victory. Victory persuades and comforts. It assuages others, and gives them the confidence to follow. Victory, in the end, is the essence of terror, because winning will ultimately win over the hearts and minds of the population.
President Donald Trump’s embrace of torture was woven into this winning, this beating. “My life is winning,” Trump told the New York Times before his election. “I win. I know how to win. Most people don’t know how to win. In golf, in sports, in life—I win, always.” Elsewhere, Trump declared, “I’ve been in competitions all my life and there’s nothing as exciting as winning this stuff,” after taking the Louisiana primary and the Kentucky Republican caucus. “Winning deals, or winning club championships, or whatever you want to say, there’s nothing like this,” Trump announced; in fact, Trump added during the campaign, “We will have so much winning if I get elected that you may get bored with winning.”22
“Winning” against the terrorists, for President Trump, meant pushing the limits of terror. As Trump announced in his campaign, he favored torture techniques even worse than waterboarding. Trump said that he was prepared to torture the families of suspected terrorists—completely innocent family members. This zeal, this excess of terror, and especially his getting away with it, was tied to winning over the masses.
Similarly, the ruthlessness of the president of the Philippines, Rodrigo Duterte, is what led to his popularity. A vocal law-and-order proponent, who declared a war against drug addicts, Duterte oversaw the killing by police and others of around 3,600 addicts and dealers in the nine months after he took office in June 2016 (some reliable sources put that number at 7,000). Duterte’s worldview was simple: he killed, literally, by his own hand, suspected criminals. He admitted this openly. He called for their murder. Referring to drug addicts, he said, “I would be happy to slaughter them.” “I have my own political philosophy,” Duterte explained. “Do not destroy my country because I will kill you.”23 Despite all this, or perhaps precisely because of it, Duterte was elected president by a strong majority and only gained in popularity since then. There can be no doubt that his popularity was l
inked to his audacity, to his willingness to terrorize. “I might go down in the history as the butcher,” Duterte admitted in January 2017.24
In the end, there is something to what Roger Trinquier said: terror is integral to colonial insurgency and to counterinsurgency. But not just because both sides expect it. Not just because revolutions and counterinsurgencies must anticipate it. Terror is integral to the colonial struggle because it is tied to showing one’s dominance, one’s willingness to do whatever it takes to win. And when it comes time to convince others to follow, or when it comes time to reassure, such dominance is often the most important characteristic. Because we all respect winners—at least, practically all of us. Most of us side with the victor.
Fifth, and relatedly, terror is gendered, which also tends to reinforce the power and appeal of the more brutal counterinsurgency practices. Brutality is most often associated with the dominant half of the couple, the one who controls, and however much we might protest, this tends to strengthen the attraction.
Notions of dominance lace most accounts of torture. A striking passage, for instance, at the end of Henri Alleg’s memoire, The Question, reflects well the masculinity of torture. After all his torture is over, Alleg writes:
I could sense from the different attitude of the [paratroopers] toward me, that they regarded my refusal to speak as “sporting.” Even the big para in Lo’s group had changed his attitude. He came into my cell one morning and said to me:
“Were you tortured in the Resistance?”
“No; it’s the first time,” I replied.
“You’ve done well,” he said with the air of a connoisseur. “You’re very tough.”25
There was, in effect, a male sportsman-like aspect to his ordeal, as though it were a sporting game among athletes or even gladiators. Alleg’s torture was a test of his virility. Another soldier would admire him for not giving in to torture. Alleg continues:
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