One of life’s enduring mysteries is how intent politicians seem to be on ignoring the lessons of history. One recent example involves torture. There was once a consensus that torture was immoral; even today, any sensible person knows torture is of little use if you want accurate information. Yet the current crop of Republican presidential candidates have been trying to outbid one another with promises of barbarism: Senator Ted Cruz confirmed that he favours simulated drowning, which he classifies as an “enhanced interrogation technique” (EIT) that falls short of torture. (The Spanish Inquisition was rather more honest, and called it tortura del agua.) “The Donald” immediately trumped his rival : he would “bring back a hell of a lot worse than waterboarding”.
If we know our history, it should not come as news that torture secures fantastically unreliable information. Consider just one under-reported example: Ibn Sheikh al-Libi – thought by the CIA to be number three in al-Qaida when he was detained in November 2001 – confessed under torture that Saddam Hussein was in league with al-Qaida in developing weapons of mass destruction. This “intelligence” was quoted by President George W Bush as a reason to launch a war, and it was hundreds of thousands of dead people later, and chaos across the Middle East, that the US worked out that al-Libi actually opposed Osama Bin Laden.
It would be easier to learn the lessons of history if we knew what that history was. In Britain, David Cameron now seems dead set on avoiding an open inquiry. One reason for a broader “torture debate” is reflected in a Guardian story detailing a new study on the effects of sleep deprivation : subjects who spent just one night awake were 4.5 times as likely to admit to something they did not do.
Trump would doubtless denigrate this; his febrile imagination would be focused on more medieval alternatives. Whether he is right or wrong – and he appears often to be wrong – experience teaches us that acts that fall far short of torture have drastic consequences. Indeed, in 2009, after the birth of my son Wilf, I was in a US federal court arguing the impact of weeks and weeks of sleep deprivation on one of my clients in Guantánamo Bay. If my argument was incoherent, it was because I had not enjoyed much sleep for weeks myself. Anyone (except an apparently childless US prosecutor) will understand this. Indeed, I had a capital trial where an exhausted parent accidentally put his nine-day-old child into the freezer – with tragically fatal consequences.
The headline news of the study in the US National Academy of Sciences is that fully 50% of those who had gone just one night without sleep confessed without any meaningful pressure. Yet, when we pare away the emotion that surrounds the torture debate, it is important to recognise that eight of 44 subjects (almost one in five) who were fully rested confessed falsely as well. In other words, the mere appearance of authority can extract false information.
The study also notes that those who scored lower on an intelligence test were more likely falsely to incriminate themselves. Again, this should come as no surprise to anyone who lives in the real world. I conducted a study of all the prisoners on Mississippi death row some years back, and one-third of them fell within the range of mental disability. As many as half of the prisoners exonerated off death row in the US had been condemned to death based on a false confession . In order to illustrate his susceptibility, I once bullied one of my capital clients into admitting that he had assassinated President John F Kennedy. Sadly, it was not difficult to get him to confess.
Thus, the most important conclusion of the NAS study is that such false self-incrimination “is not out of the ordinary and may even be commonplace”. Until we recognise this, we will have little understanding of how deeply flawed our justice system truly is.