The abhorrent practice of torture is a curious thing. Governments will almost never admit to perpetrating it while, at the same time, it is pervasive. An excellent website, Atlas of Torture, maps the practice across all regions, with issues arising almost everywhere. According to Amnesty International it is perpetrated in at least 140 countries but probably more since it is so under-reported. The practice deserves to be high in the news in Europe right now, not just because of any issues here but also due to the high number of victims arriving as refugees from Syria, Eritrea and elsewhere. Studies have shown the incidence of torture among such groups can be as great as 30 per cent – and just one refugee support group, Berlin-based BZFO, reports that it treats 500 refugee survivors of torture every year.
Forms of torture vary widely. One study identifies 15 categories of physical and mental abuse with numerous sub-categories. The US government’s “torture memos” (a compilation of which was published in 2009) discuss 10 “enhanced interrogation techniques”: attention grasp, facial hold, facial slap, walling, wall standing, stress positions, cramped confinement, sleep deprivation, insect placed in a confinement box and water-boarding. Recall that the memos present these practices as on the mild end of a spectrum of the infliction of pain or distress.
Things can get much worse. One former US detainee described how he was, “interrogated for approximately 20 hours a day for seven weeks; given strip searches, including in the presence of female interrogators; forced to wear women’s underwear; forcibly injected with large quantities of IV fluid and forced to urinate on himself; led around on a leash; made to bark like a dog; and subjected to cold temperatures”.
Torture is undertaken for all manner of reasons, the most common seemingly being a belief that it will elicit otherwise unattainable intelligence. I recall delivering training to the police of a Middle Eastern country some years ago. When I asked the rhetorical question, "is it ever acceptable to torture someone", a senior officer replied, "yes, if that is the only way to get the suspect to talk". My response was to point to the applicable international human rights standards that unequivocally prohibit the practice in all its forms, regardless of any claims as to its utility. I can't say what impact, if any, that I had. I would have been more effective had I had the opportunity to present arguments drawn from Shane O'Mara's new book, Why Torture Doesn't Work.
Prof O’Mara, director of the TCD Institute of Neuroscience, has written a powerful, convincing and thought-provoking volume. O’Mara presents us with the overwhelming scientific evidence that torture simply does not work. What is more, it damages memory and is highly likely to produce flawed intelligence. Claims of the utility of torture are no more than “cargo cult science”. The writing style is always clear and accessible and this non-scientist reader was pleasantly surprised at the extent to which he could make sense of the numerous studies and experiments that are described.
Why Torture Doesn't Work proceeds forensically, building towards its conclusions layer upon layer. O'Mara first establishes a foundation by explaining how the brain supports memory. He dismisses popular understandings of such concepts as long and short term memory, observing that it is not the purpose of memory to provide a faithful record of our past experiences and that it is both frail and fallible. His next step is to undermine any notion to the effect that we are adept at spotting lies – surely a critical skill for any interrogator.
We learn from O’Mara that there is no effective lie detection technology (so much for that staple of the TV detective series, the polygraph) and that effective truth serums are the stuff of fiction. In short, “the assumption here that technology will easily and reliably provide the answer to the question of whether a particular individual is lying is simply misguided”. But cannot the interrogator him or herself, relying on innate skills and experience, spot a lie? It seems not. O’Mara presents numerous psychological studies that refute any such claim and that reject popular notions such as that gaze aversion is a sure test of untruthfulness.
Already just with these topics, O’Mara would have served us well, drawing together and popularising the evidence that interrogation is an inherently imprecise and unreliable method of acquiring intelligence. On that basis he already shows torture to be based on multiple false premises. However he goes further and shows how torture actually damages brain function, thus further compromising the quality of any information that might be extracted. For instance, drawing on studies of combat soldiers he explains how extreme stress (an inevitable effect of torture) dramatically impairs memory, mood and cognition.
As regards that commonly employed tool of the torturer, sleep deprivation, he observes that it “causes a substantial and direct degradation in performance across mood, cognition, learning and memory, and psychomotor states, in direct proportion to the amount of time that the person has been sleep deprived”. His conclusions are similar regarding the impact of simulated drowning (water-boarding) and acts that serve to cool, heat or starve the brain. Along the way, O’Brien delivers an important and timely reminder that the “smoking gun” justification for the infliction of torture is based on nonsense ideas – since studies show not only the unreliability of torture-induced confessions but also the need for protracted interrogation to obtain reliable information.
Having comprehensively undermined all utilitarian arguments in favour of torture, O’Mara turns his attention to the torturer. He recalls the well known Stanford prison experiment which showed how students in role play as gaolers proved capable of imposing disturbingly harsh treatment on their fellow students in the role play of prisoners. Drawing together the findings of numerous such studies he examines how an “empathy gap” exacerbates the propensity to hurt others, particularly as regards the action of the pro-torture policy maker sitting at a desk far away from the torture cell. The book concludes with numerous suggestions – often very creative – regarding how to draw on the findings of science to promote torture-free forms of effective interrogation.
The significance of this book is difficult to overstate. Its conveyance of moral outrage as regards the practice of torture is unqualified and it delivers the evidence to repudiate all utilitarian justifications of the practice. It offers science-based pointers to manners of conducting interrogation that are both more effective and compliant with human rights standards. Furthermore, given the questions surrounding the utility of all statement-related evidence, it supports the long-standing calls for more focus on such other evidentiary sources as forensics and surveillance. It has a great deal to say to contemporary policy-makers and for police and intelligence services, not least at a moment of enhanced attention to counter-terrorism.
The book demonstrates the importance of science in the pursuit of human rights. We human rights lawyers need to make more room for such collaborations. We also need to consider how findings like O’Mara’s challenge such cherished legal principles as the distinction between acts constituting torture and the lesser acts of “cruel, inhuman and degrading treatment”.
Let the last words be those of the author: “[We] are, it seems, in a situation similar to what might be found in medicine if doctors were allowed to freely ignore everything that we have learned from biology, physiology, and pharmacology over the past 100 years, instead relying on their hunches. It is the rough equivalent of evolving a cure for leukaemia out of your own inner consciousness. Given what we know, given the stakes, given what we could discover, that is simply not good enough.” Prof O’Mara deserves some sort of prize for this work.
Prof Michael O’Flaherty is director of the Irish Centre for Human Rights at NUI Galway and, from December 2015, director of the European Union Fundamental Rights Agency