My Turn: Torture is a crime, so why don’t we treat it like one

Last modified: 8/15/2014 9:31:02 AM
President Obama has now acknowledged America’s use of torture. “We tortured some folks. We did some things that were contrary to our values.” Obama went on to try and place the use of torture in context. Recalling the desperation of law enforcement to prevent further attacks post-9/11, Obama said, “It’s important for us not to feel too sanctimonious in retrospect about the tough job those folks had.”

Although I am glad Obama acknowledged the fact of torture and did not try to call it a phony euphemism, I am disappointed in his response. Torture is a crime. It is not a public relations embarrassment that needs to be managed.

So much is left out in Obama’s weak response. You might think a former constitutional law professor would provide a better answer. I find what he did not say more objectionable than what he did say. Clearly, in this instance, politics is his foremost concern as he was trying to appease his right flank.

The United States is far more implicated in the systemic use of torture than Obama lets on. As outlined in Alfred McCoy’s book A Question of Torture, the roots of the American use of torture date back to the Cold War.

McCoy writes: “From 1950 to 1962, the CIA became involved in torture through a massive mind control effort, with psychological warfare and secret research into human consciousness that reached a cost of a billion dollars annually – a veritable Manhattan Project of the mind. After experiments with hallucinogenic drugs, electric shock and sensory deprivation, this work then produced a new approach to torture that was more psychological, not physical, perhaps best described as ‘no-touch torture.’ ”

Contrary to Obama’s recent statement that made it sound like torture was an aberration, examples from the wars in Iraq and Afghanistan reflect long-standing practice. They are consistent with the Kubark Counterintelligence manual, produced long ago in 1963, which is a handbook on how to torture effectively.

That manual, widely used and disseminated by the CIA, details torture techniques that rely on sensory deprivation and self-inflicted pain. The techniques were used in Vietnam as well as in counterinsurgency in the Philippines and Central and South America in the 1970s and 1980s. Explanations of torture blaming a few rogue sadistic soldiers or undisciplined overstretched troops are simply wrong. Authorization for the use of torture came from the highest levels.

During the George W. Bush years, the torturers hid behind lawyer apologists who crafted new crackpot doctrine to defend the indefensible. Former vice president Dick Cheney remains a torture cheerleader to this day. Unfortunately, Obama has hardly distinguished himself.

At the same time that the United States has systematically used torture, we also have been a party to the Convention Against Torture, a multi-lateral treaty that America helped to draft, sign, and ratify. The United States is also a signatory to the Universal Declaration of Human Rights, the Geneva Convention and other torture conventions that absolutely prohibit torture and cruel treatment of wartime detainees.

I would submit that this hypocritical contradiction does not make us that different from most other nation-states. As the late, great reporter I.F. Stone used to say, “All governments lie.” High-minded principles take a back seat to perceived pragmatic needs. Even without evidence that torture works, states want to maintain the prerogative to torture.

Torture is not some peripheral legal issue. It is a watershed issue that delineates medievalism from modernity. For almost 2,000 years, torture has been associated with tyrants and empires. I think it is fair to say torture has been a central issue in European law for more than 1,000 years.

The history of torture and European law is fascinating and quite checkered. Pope Nicholas I banned the practice in 866. On its face, it seems antithetical to Christian doctrine. However, ecclesiastical courts evolved to sanction torture. During the Inquisition, Church interrogators relied on torture as a means to extract confessions. Pope Innocent IV officially sanctioned the use of torture in 1252.

European civil courts, influenced by Roman law, also used torture as a means to extract confessions. The practice was common and went on for more than 500 years. It was not until 1790 that the British Parliament forbid burning women at the stake.

Until the 18th century, the medieval torture mentality reigned. As mentioned, judges routinely sentenced those convicted to the whipping post, stocks, dismemberment, breaking on the wheel and burning at the stake. Torturers also used a technique called the strappado. Victims were suspended from the ceiling with their hands tied behind their back. Weights could get tied to the victim’s ankles with a series of lifts and drops which could cause dislocations.

It was not until the Enlightenment that the modernist idea of evaluation of evidence on its merits superseded confession by torture. Lawyers started to question the accuracy of evidence extracted by torture.

In the 1760s, Voltaire denounced judicial torture and argued that a civilized nation could no longer follow “atrocious old customs.” The 19th century saw a further evolution toward a more rationalist and scientific approach to crime.

The American Constitution reflected Enlightenment influences, particularly the 8th Amendment prohibition against cruel and unusual punishment. The Founding Fathers opposed unusual cruelty in the methods of punishment as well as disproportionate or excessive punishment.

How we got to indefinite holding, torturing and killing prisoners at secret prisons is a long and complicated story. Obama’s weak admission must be seen in the context of this long history.

As a nation we have been backsliding for some time now. Instead of seeing torture as a moral and legal abomination, we glorify its dark power on television. If we cannot honestly confront it and recognize it is an anachronism, how will we ever be able to do anything about it? Obama’s unwillingness to look back at the crimes that have been committed very much increases the likelihood that torture will recur in our future.

I think stories like the redacted Senate intelligence report on torture and the fact the CIA searched Senate computers are mostly indicative of how far we are from honestly engaging the larger issue: When are we going to start treating torture like the crime it is?

(Jonathan P. Baird of Wilmot is an administrative law judge. His column reflects his own view and not that of his employer, the Social Security Administration.)

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