In his 1892 American Anthropologist article, James Welling observes "that the employment of torture as an engine of justice belongs to an advanced stage of mental evolution" (194). "Advanced," that is, when compared to judicial ordeal, such as
a wager of battle between the litigant parties; trial as to which of two or more parties can longest hold the arms extended in the form of a cross; which can thrust the arm with impunity in water boiling hot; which shall sink and which shall float when cast into pool or stream with the hands and feet appropriately tied—the right hand to the left foot, the right foot to the left hand; which shall walk over burning ploughshares, laid at irregular intervals on the ground, and escape with the soles of the feet unscathed; which shall pass through fire and flame with limbs unscorched, &c. (193)
Compared to that, torture represents an advance. One from which we, as Americans, backslid. Over the past six years, we have come back to the fold. First, we re-familiarized ourselves with and re-desensitized ourselves to the trials competitive humiliation. The stakes may have been lower, but our hearts were pure and the ratings were fantastic. Slowly, however, it lost its appeal. Didn't matter how irregularly they laid the burning ploughshares on the ground. They could've tied one litigant's right foot to the other's left hand, set them on fire, threw them in a pool or stream, fished them out and saw whose rigor more closely resembles a crucified Christ and we still would've flipped to something else .
However loosely defined, judicial trial didn't cut it anymore. We knew we wanted something else. Something more advanced. So, in full compliance with the law of social evolution, we had no choice but to re-advance our backwards, backslid backsides.
Initially, and to the annoyance of many, we niggled like our more advanced forebears, drawing "fine-spun distinctions" left, right and Right:
while the intervals between no proof at all and a proof half complete, or between a proof half complete and a proof complete, [distinctions] were graduated into still more spectral segments of proof, such as proof less than complete, but nearer complete than half complete; proof less than complete, but further from complete than half complete; probatio which might be rated with its evanescent values from bona to optima, from evidens to evidentissima, from aperta to apertissima, from dubia to indubitata, from idonea, legitimata, and sufficiens through all the ascending scales of the evidential gamut to liquida, dilucida, perspicua, luce meridiana, clarior, &c., &c. (196)
Our ancestors probably didn't know how easy it would be for terrorists to stuff a dirty bomb in an et cætera. Had they, there wouldn't have been any trifling with "proofs less than half complete, but to closer to half incomplete than half complete depending on the curve." They would have known that expediency demanded, and would settle for no less than, "proof now." Who has time to fiddle with veracity when there's a bomb in that kid! ("We're truth-seeking and he ain't truth-speaking," says the dashing hero, pointing an unsteady finger at the babbling infant.) Our decision to dispense with fussiness of Sebastian Guazzini's ponderous Tractatus ad Defensam Inquisitorum, Carceratorum, Reorum et Condemnatorum super Quocunque Crimine (1612) would be applauded.
They wouldn't have minded the elimination of unmanly "legal prerequisites for torture" restraining the when, where, why and how high we amp the 'trodes. Nor would they have cared that judges wouldn't face public reckoning when they couldn't demonstrate that all "forty-three indications for torture" have been met, appealed, re-presented, and re-appealed in a legally transparent manner. That's the kind of backward-thinking forethought you'd expect from some inquisitor in 1612, but you and I both know Guazzini'd race us to water-boarding chamber first chance he got.
After all, he's not that different from the guys who want to pick up his baton and beat the truth from someone with it:
The seventh requisite is that inspection be made of the person of the accused, to ascertain whether he is privileged or not, because a privileged person cannot be tortured even with legitimate presumptions precedent. (202)