Table Of ContentC onfronting Torture
C onfronting Torture
Essays on the Ethics, Legality,
H istory, and Psychology of
Torture Today
E D I T E D BY
S C O T T A . A N D E R S O N
A N D M A R T H A C . N U S S B A U M
The University of Chicago Press
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T he University of Chicago Press, Chicago 60637
The University of Chicago Press, Ltd., London
© 2018 by The University of Chicago
Chapter 4 © 2018 by Mary Anne Case
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Published 2018
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ISBN-1 3: 978-0 -2 26-5 2938-7 (cloth)
ISBN-1 3: 978-0 -2 26-5 2941-7 (paper)
ISBN-1 3: 978-0 -2 26-5 2955-4 (e-b ook)
DOI: https://d oi. org/1 0. 7208/c hicago/9 780226529554. 001. 0001
Library of Congress Cataloging-in-Publication Data
Names: Anderson, Scott A. (Professor of philosophy), editor. | Nussbaum,
Martha Craven, 1947– editor.
Title: Confronting torture : essays on the ethics, legality, history, and
p sychology of torture today / edited by Scott A. Anderson and
Martha C. Nussbaum.
Description: Chicago ; London : The University of Chicago Press, 2018. |
Includes index.
Identifi ers: LCCN 2017038264 | ISBN 9780226529387 (cloth : alk. paper) |
ISBN 9780226529417 (pbk. : alk. paper) | ISBN 9780226529554 (e-book)
Subjects: LCSH: Torture—Psychological aspects. | Torture—Moral and ethical
aspects. | Torture—Law and legislation.
Classifi cation: LCC HV8593 .C654 2018 | DDC 364.6/7—dc23
LC record available at https://lccn.loc.gov/2017038264
This paper meets the requirements of ANSI/NISO Z39.48-1 992
(P ermanence of Paper).
C O N T E N T S
Acknowledgments / vii
Introduction / 1
S C OT T A . A N D E R S O N
P A R T I : A T R I U M P H O V E R T O R T U R E , T O L D B Y A S U R V I V O R
O N E / Tales of Terrorism and Torture: The Soft Vengeance of Justice / 21
A L B I E S A C H S
P A R T I I : P S Y C H O L O G I C A L P E R S P E C T I V E S O N T O R T U R E
T WO / The Many Faces of Torture: A Psychological Perspective / 43
W I L L I A M G O R M A N A N D S A N D R A G . Z A K OW S K I
T H R E E / Stoic Equanimity in the Face of Torture / 70
N A N C Y S H E R M A N
F O U R / Gender Performance Requirements of
the US Military in the War on Islamic Terrorism / 87
M A R Y A N N E C A S E
P A R T I I I : T O R T U R E I N H I S T O R I C A L C O N T E X T
F I V E / The Fragility of Evidence: Torture in Ancient Rome / 105
K AT H L E E N M . C O L E M A N
vi / Contents
S I X / US Torture of Prisoners of War in Historical Perspective:
The Role of Delegitimization / 120
C H R I S T O P H E R J . E I N O L F
S E V E N / Police Interrogation and Coercion in Domestic
American History: Lessons for the War on Terror / 146
R I C H A R D A . L E O A N D K . A L E X A K O E N I G
P A R T I V : T H E E T H I C S O F T O R T U R E
E I G H T / The Ticking Bomb Hypothetical / 177
M A RC I A B A R O N
N I N E / Torture and Method in Moral Philosophy / 195
J E F F M C M A H A N
T E N / Torture, Self-D efense, and Fighting Dirty / 219
DAV I D S U S S M A N
E L E V E N / Torture as Unjust Means of War:
To Squelch the Sirens’ Singing / 231
S C OT T A . A N D E R S O N
P A R T V : T O R T U R E I N U S L AW A N D P O L I C Y
T W E LV E / Torture and Positive Law:
Jurisprudence for the White House / 257
J E R E M Y WA L D R O N
T H I R T E E N / In Defense of Lawfare:
The Value of Litigation in Challenging Torture / 294
L I S A H A J J A R
F O U R T E E N / Tortured Prosecutions:
Holding Private Military Contractors Accountable / 320
G A R R E T T O R D OW E R
List of Contributors / 345
Index / 347
A C K N OW L E D G M E N T S
We the editors gratefully acknowledge the hard work, insight, and excep-
tional patience of the contributors to this volume, as well as of its pub-
lisher, the University of Chicago Press. We thank the University of Chicago
Law School for its sponsorship of the conference “Torture, Law, and War:
What Are the Moral and Legal Boundaries on the Use of Coercion in Inter-
rogation?,” at which many of the papers collected here were fi rst presented;
we are also grateful to the other presenters and audience at that conference.
Scott Anderson gratefully acknowledges the Social Sciences and Humani-
ties Research Council of Canada for support of his project, “The Regula-
tion of Coercion,” to which his efforts for this volume contribute. Special
thanks are also due to Douglas Mitchell, Kyle Wagner, and Joel Score for
editorial guidance and support at the University of Chicago Press, and to
Pamela Bruton for exceptional copyediting.
Lastly, this volume is intended in some small way to honor and com-
pensate victims of torture in recognition of the harms visited upon them
and their undiminished dignity and worth as people.
All but four of the chapters of this volume appear in print here for the fi rst
time. The following four chapters have appeared elsewhere in some form
or another but have been revised for this volume:
Chapter 1, Albie Sachs, “Tales of Terrorism and Torture: The Soft Ven-
geance of Justice,” fi rst appeared in his monograph The Strange Alchemy of
Life and Law (Oxford University Press, 2009). It appears here with a preface
specially written for this volume.
Chapter 3, Nancy Sherman, “Stoic Equanimity in the Face of Torture,”
contains material initially discussed in chapter 6, “In the Face of Torture,”
viii / Acknowledgments
from her book The Untold War: Inside the Hearts, Minds, and Souls of Our
Soldiers (W. W. Norton, 2010). The chapter included in the present anthol-
ogy was written specially for it, however.
Chapter 8, Marcia Baron, “The Ticking Bomb Hypothetical,” was writ-
ten for this anthology but has appeared now in Mark Timmons, Disputed
Moral Issues: A Reader, 3rd ed. (Oxford University Press, 2014).
Chapter 12, Jeremy Waldron, “Torture and Positive Law: Jurisprudence
for the White House,” was originally published in Columbia Law Review 105
(2005): 1681–1 750. It has also been reprinted in largely the same version
in his book Torture, Terror, and Trade-O ffs: Philosophy for the White House
(Oxford University Press, 2012). The version in the present anthology here
has been edited for length and modestly updated.
Introduction
SC OT T A . A N D E R S O N
Throughout human history, torture has repeatedly come into and fallen
out of fashion as an acceptable method of punishment and investigative
tool. So too proponents and detractors have argued over its propriety and
usefulness, with debates being more or less continuous since Voltaire, Bec-
caria, and others made an issue of it in the mid-e ighteenth century. One
might have believed, however, that those on the side absolutely opposed
to torture had carried the day, and that their arguments were so well de-
fended and accepted at the turn of the twenty-fi rst century that the ques-
tion of using torture was largely closed, at least in public, intellectual dis-
cussion. Beginning with the Fourth Geneva Convention (in 1950), through
the International Covenant on Civil and Political Rights (in 1976) and the
UN Convention against Torture and Other Cruel, Inhuman, or Degrading
Treatment and Punishment (in 1987), a variety of international covenants
and treaties prohibit torture unconditionally. Though it is clear that not
all signatories to these agreements did give up using torture (France, for
instance, is well known to have used torture in the pursuit of its armed
struggle in Algeria), there had seemed to be a general agreement among
Western democracies (along with almost all other countries) that torture
was simply not an acceptable technique in war fi ghting, policing, or penal
sanction. These agreements also provided grounds for criticism of coun-
tries that failed to sign or adhere to them.
Although the public acts and pronouncements of the United States
would have suggested that its opposition to torture was broad and deep,
we now know that this opposition was more fragile and conditional than
one might have supposed prior to the attacks of September 11, 2001. While
it is no doubt easiest to oppose the use of torture when there is no one who
poses a serious threat of danger to you, there proved to be a surprising well
