Tales of Terrorism and Torture: The Soft Vengeance of Justice

Albie Sachs

Sometimes a small shock can be greatly educative. Arriving late at the conference on torture at the University of Chicago, my major preoccupation was to slip into a seat without disturbing the speaker. Then, as his words came through to me, I felt impelled to get up and walk out, as quietly as I had come in, but angrily. The shock came not from the manner of presentation — the reasoning was calm and precise — but from its content. The professor was applying cost-benefit analysis to the use of torture! I was stunned, and revolted. It was like weighing up the pluses and minuses of slavery or blackmail or child abuse ... my mind rang up a quick list of social activities regarded as so intrinsically abominable in their totality as not to merit anything good at all to be said about their details. Then I recalled Shakespeare's words said to the bewildered Olivia in Twelfth Night, "This is Illyria, Lady." This was America, man. A debate on the pluses and minuses of torture could never have been held in Chile or Argentina or South Africa or Zimbabwe, where at different times torture had been used in devastating manner by state authorities and impinged severely on the national psyche.

It made me think why certain issues could not legitimately be debated in the USA today, while others could. Thus, I could not imagine anyone now being invited in the USA to do a cost-benefit analysis of slavery or segregation or sterilization eugenics, though once the pros and cons of all these practices had been "scientifically" discussed by scholars. The national consensus on these issues would be so powerful as to prevent such an invitation being given. Could it be — my mind speculated impulsively — that the academic imagination would be revolted only if torture was a now-repudiated practice being applied by Americans to Americans, and not an approved mechanism being applied by Americans to foreigners? The international consensus, as evidenced by the Convention against Torture, indicated that torture was universally regarded as an undoubted and unqualified evil. The fact that torture in America did not evoke a spontaneous response of civilized horror was more telling in itself than the content of the paper. Then I try to tell myself that the very point of cost-benefit analysis is to exclude what is regarded as extrinsic moralism from the inquiry ... but my brain answers that what is at stake is precisely the deep morality of the society and the role that respect for human dignity plays at its foundation, and that if respect for human dignity has a price beyond rubies, then the scales of any balancing process could never come down on the side of torture.

But soon it would be my turn to speak. Should I make my point by walking out? The only way I could calm my racing brain was to apply cost-benefit analysis to my participation in a debate with people using cost-benefit analysis to justify torture. I had to accept that you took conferences as they came, that this was where the debate happened to be in the USA, and that it was particularly important for perspectives from other countries to be introduced. Rather than suffer the awkwardness of a departure without speaking, I could let the shock I had undergone give a special rhetorical edge to my presentation. So, shortly afterward I went to the podium and gave my presentation as planned, emphasizing rather more strongly than I otherwise might have done that torture has to be looked at from the point of view not only of what it does to the victims but of what it does to the torturers.

I had given similar talks in many countries to many different audiences. By the time I received the transcript from Chicago I was working on a book dealing with how my subjective life experiences had later entered into objective reasoning as a judge on South Africa's Constitutional Court. I adapted the presentation for the book, adding extra material drawn from judgments (opinions) in which I had been involved. What follows below is a revised copy of the speech in the form I made it at the University of Chicago and then published as chapter 1 of The Strange Alchemy of Life and Law. Given its provenance, Oxford University Press, the publishers of that book, have kindly agreed to the publication of this slightly edited version here.

1. My experience as a "terrorist" and torture survivor

I was thirty-nine years old, quietly teaching law in exile at Southampton University, when I discovered I was a terrorist. I had been invited to attend a conference at Yale University's Contemporary History Department. But I could not get a visa. Why? Because I was a member of the ANC, the African National Congress, led by Nelson Mandela, who had been commander in chief of Umkhonto We Sizwe (Spear of the Nation), set up to help overthrow apartheid in South Africa. And although I was simply earning my living as a rather innocuous law teacher in England, as a member of the ANC I was a terrorist. Happily, a few months later the political lobby group in Washington which backed the ANC turned out to be stronger than the group hired to promote the interests of the South African government. The State Department policy changed, and I was no longer a terrorist.

It was not simply the ignoble label of "terrorist" that was so objectionable. In South Africa, being treated as terrorists had brought enormous and terrible consequences for thousands and thousands of us. As terrorists, we could be detained without trial and subject to solitary confinement with no access to family, to...