The Original Hooded Men
The tension between state antiterror policies and individual rights was not invented on September 11, 2001. Thirty years earlier, the world was shocked by reports of British soldiers rounding up Northern Irish terror suspects, throwing hoods over their heads, and using bizarre methods of interrogation, including sensory deprivation. The parallels to the American scandals at Guantánamo Bay and Abu Ghraib are lost on no one in Europe with a sense of law and history. But, sometimes, the United States seems to suffer from its own form of sensory deprivation, being blind and deaf to the experience of the world. The European Court of Human Rights has long grappled with issues of detention and torture. Although Strasbourg's track record on detention is imperfect, its record on torture is instructive. In 1976, the European Commission on Human Rights spotlighted the problem of psychologically abusive interrogation, using stress and duress, and called it “a modern system of torture.” European law has evolved to handle this contemporary form of punitive mistreatment, while American law has not.
Torture developed in Europe to fill a highly specific need. As the historian John Langbein has shown, it emerged in the thirteenth century with the Roman canon law of proof. Canon law replaced the superstitious system of the medieval ordeals, which, for instance, deemed a man innocent if he drowned when thrown into a pool of water. But the new system had its own built-in perversity. Under canon law, the only possible bases for convicting a man of a serious crime were two testimonials, or a confession. One witness and strong circumstantial evidence weren't enough. Given these rules, a prosecutor who lacked two witnesses and wanted a conviction would be