Why does the practice of torture seem to endure? Perhaps, when we condemn the practice, we really only condemn a particular (sometimes, particularly cinematic) version of torture, with assumptions about how it looks and the motivations of the characters. And so, as we condemn, we may be unconsciously good at making exceptions. One example of this disturbing tendency may be seen not in the Middle East but the Midwest.
Elizabeth Dale’s recent book, Robert Nixon and Police Torture in Chicago, 1881-1971, centers on the case of the man who was arrested, convicted, and executed for the murder of Florence Johnson, despite sketchy eyewitness testimony, no blood evidence, and a confession with those errors of facts and inconsistencies that “are often signs that a confession has been coerced.” Robert Nixon had been held for 19 days before he was brought before a judge; he claimed that he had been beaten and even held dangling outside of an 11th-floor window above the L tracks that ran behind the police station. (The police testified otherwise.) Nixon was sent to the electric chair on June 15, 1939, to live on as the basis for Richard Wright’s character Bigger Thomas in Native Son. Bigger Thomas, like Nixon, was young, black, and male, but, unlike Nixon, at least had a home and family.
Dale writes, “Nixon’s case was not an anomaly,” and police torture in Chicago, or at least allegations of it, seems to have stubbornly endured from the first claims of “sweatboxing” — being kept in a “small, intensely hot often smelly or airless room” — back in the 1880s. When Dale ends her account in 1971, it is only to give way to the journalism of John Conroy, who documented how police officers in Area Two and Three police headquarters continued to practice torture between 1972 and 1991. Dale’s short but exhaustingly comprehensive account provides a telling hint about the strange endurance of torture.
Some torture, it was acknowledged, was certainly bad, but some torture was seemingly different, necessary.
The hint comes through most clearly in articles in the Chicago Tribune, of which Dale makes good use. In 1896, the Tribune wrote of the cruel treatment that could face those arrested, worrying specifically that the “experience … may come to any resident of Chicago.” “There are times,” it darkly warned, “when the best of citizens are caught at a disadvantage.” Curiously, though, the Tribune did not call for a complete end to the horrible “experience” of humiliating searches and the sweatbox, but ended the article with a short account of how the police had to use harsh treatment lest “crooks” have an “easy time” against them, adding that police tried to give the innocent a “full chance to clear himself.” It wasn’t clear how this would actually work.
Still, the claim that torture had to be deployed against hardened criminals yet should not be used against the innocent “best of citizens” persisted. In 1927, Chicago’s chief of police responded to allegations that an accused hotel clerk was unfairly beaten up by asserting that he favored “protecting the police and kicking the criminal.” Nevertheless, as the Tribune reported, Chief Michael Hughes “does not approve of the police mistreating innocent citizens.” That unstable distinction even could draw on some degree of legal support. In Illinois v. Fox (1925), the Illinois Supreme Court had claimed that the law’s concern with coerced confessions was solely with false confessions — on the other hand, police coercion would not “require the rejection of a confession if the court could know as a fact that the confession was true.”
The “logic,” as Dale calls it, that “it was okay to torture the guilty” (but, presumably, only the guilty) continued at least into the 1970s. The obvious question was, in advance of a fair trial and conviction, how would you know who was guilty and who was innocent? You couldn’t, but the police seemingly had to rest on assumptions. The Tribune wrote in 1922 of the “pretty general acceptance of the theory that the police must beat up a suspected man, if he has a criminal record, to get the facts out of him.” Besides those with criminal records, African-Americans, particularly outsider African-Americans like Robert Nixon, were highly suspect.
A bit closer to today, it seems as though a similar “logic” is behind many justifications of torture. A distinction is made between the cruel torturer and the torturer who only tortures out of necessity — self-defense. Another distinction is made among the victims of torture — the innocent versus the guilty. The law professor David Luban has described how the liberal protest against torture has imagined it in particular ways, as an exercise of cruelty, a “microcosm [of] tyrannical political relationships,” or perhaps a dark way of extracting confessions for heresy and sedition. (As William Cavanaugh has written, the liberal imagination has also often imagined torture as stereotypically and luridly medieval.) But what about torture as a form of reluctant intelligence-gathering or as a form of careful self-preservation against scheming terrorists? These practices tend to slip through the liberal critique.
The purest form of posing the question of those other, safer forms of torture is to conjure up the ticking time bomb scenario, in which the torturer can be ascetically single-minded in his pursuit of information, free from the seductions of cruelty and terror, and the tortured can be assumed definitely guilty in the very worst of ways. Then, as Luban writes, “The torturer is instead a conscientious public servant” — or, we might say, an imagined tough-minded 20th-century Chicago cop. The danger of exempting this form of terror from our otherwise sincere condemnations of terror is so real that Luban suggests a “clear set of bright-line rules … complete with warnings of fire and brimstone.”
One would hope that the Church would be good at reminding us of our inability to distinguish between the innocent and the guilty, perhaps even reminding us of the place of that inability at the very axis of history. One might also hope that the Church would be good with “warnings of fire and brimstone.”