    The Justice Department memos (1, 2, 3, 4)  authored by Jay Bybee and Stephen Bradbury leave no doubt that beginning in 2002 our government tortured prisoners who were in our custody. If you believe that chaining naked persons in an upright position to keep them awake for more than seven days in a row, spraying them with forty degree water for twenty minutes at a time, placing them in dark boxes for eighteen hours a day, and suffocating them with water for forty seconds at a time sixty times per month is not "torture" then read no further. Our disagreement is so fundamental that no amount of dialogue will bridge the gap.
    I agree with the Ross Duthat's op-ed in yesterday's New York Times echoing the call for a Truth Commission and a national debate on torture. Torture violates fundamental American values, and a large majority of the American public will not rest until we can be assured that our government will never again engage in this conduct.
    The Declaration of Independence states that all men are created equal, that we are endowed by our creator with certain inalienable rights, and that governments are instituted among us to secure these rights. The Constitution prohibits the government from invading any of our rights - common law or statutory or constitutional rights to life, liberty, or property – without due process of law, and it most certainly prevents the government from torturing people. Under the Eighth Amendment even convicted criminals may not be subjected to any cruel punishments. After fighting Nazi Germany and Imperial Japan we extended this rule to prisoners of war. America led the world in deciding that captured enemy soldiers may not be tortured or even treated in cruel, inhuman, or degrading fashion, and we executed German and Japanese officers who had ordered the torture of Allied soldiers. In essence we extended the constitutional prohibitions on torture to all persons, even persons who were engaged in a global conflict against us, members of armies that posed a massive and deadly threat to the continued existence of our society, because we believe in the dignity of the individual.Â
    If there is anything that the people of the world agree upon it is that torture is wrong and that it should be illegal.  We have entered into treaties such as the Geneva Conventions, the Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment, and the International Covenant on Civil and Political Rights, each of which obligates us to both outlaw and prosecute acts of torture.  To implement these treaties we have enacted the Torture Act (18 U.S.C. 2340 and 2340A), the War Crimes Act (18 U.S.C. 2441) and the Prohibition on Cruel, Inhuman, and Degrading Treatment or Punishment of Persons Under Custody or Control of the United States Government (42 U.S.C 2000dd).Â
    But it is not enough to have enacted these laws. Our treaty obligations to the people of the world, our dedication to the Constitution, and our determination to live under the Rule of Law require that these laws be enforced. We must demand obedience to these laws that protect fundamental principles of human decency. The laws against torture are as basic to our society as the laws against slavery.Â
    This is not a partisan issue, any more than corruption is. We do not refrain from investigating and prosecuting incidents of corruption simply because the perpetrators of these acts are public officials or political actors. To the contrary, we deem it necessary to rid our government of persons who exercise their powers for personal gain whatever their political beliefs and whatever political party they belong to. How much more necessary it is to rid our government of persons who consider it within their power to torture other human beings?
    It is no argument to say that Democrats in Congress are just as responsibile for torture as Republicans in the White House. It makes no difference whether the people who authorized these actions were liberals or conservatives, socialists or libertarians.  Their roles in this matter must be exposed and legal responsibility affixed.Â
    Some people have taken the position that we should not prosecute C.I.A. officers or military officers who tortured prisoners because they were "just following orders." We did not consider that to be a proper defense for Nazi death camp guards, and in any event the "Nuremburg Defense" has no application to those persons who formulated and gave the orders to torture prisoners. In particular we must enforce these laws against the doctors and lawyers who perverted their craft to make possible the policy of torture. The doctors who helped to design and oversee these actions must never again be permitted to treat patients. They have forfeited the right to practice medicine and cannot be trusted with people's lives and well-being. Similarly, the attorneys who authored official memoranda allowing the torture to go forward should never again be permitted to give legal advice. Authorizing the government to torture people is not analogous to advising a client that it may take an illegal tax deduction. The attorneys who wrote the torture memos should certainly not have the opportunity to serve as judges who interpret and apply the law to other citizens. If these attorneys were willing to pervert the plain meaning of the statutes and treaties and constitutional provisions that clearly prohibit the torture of human beings in a situation where their concurrence was necessary to the carrying out of these despicable acts, then there is no limit to how they may interpret the law in the future. They have no place in the legal profession.
    Lincoln said, "If slavery is not wrong, then nothing is wrong." Similarly, if torture is not wrong, then nothing is wrong. This debate goes to the heart of what America stands for. It will not be pleasant to uncover and confront everything that has been done in our name by military and intelligence interrogators, but it is necessary if we are going to save our country.
{ 25 comments }
Professor Will Huhn offers,"Our disagreement is so fundamental that no amount of dialogue will bridge the gap." if one does agree the acts described are not torture.
I find it odd a person representing the rule of law would demand the individual and not the law would make the definition.
The acts described are extreme even brutal,but not defined by law as torture.
Ex posto facto ideologically driven trials are the "stuff" of which hunts.
Perhaps we should prosecute the policy makers of quota hiring,forced busing,or gun prohibitions. There may still be living those responsible for the population bombings of World War II we could pillory.
I offer the words of Martin Niemoller to the professor and others of his ilk. They will come.
David, you are basically echoing the argument of Doug Jehl of the New York Times. Mr Jehl states, "I have resisted using torture without qualification or to describe all the techniques. Exactly what constitutes torture continues to be a matter of debate and hasn’t been resolved by a court." However, this is simply inaccurate.
You state the acts are extreme and brutal, but not torture. Well, according to US statutory law and legal precedent you are wrong. How do you respond to the fact that the US state department describes waterboarding and many of the other "interrogation" methods as torture when other countries use it? How do you respond to the fact that the Supreme Court of Mississippi, in 1926 no less, reversed a murder conviction of a black man because they found out that he had been waterboarded by a local sherrif? The court described waterboarding as "a specie of torture well known to the bench and bar of the country," and "barbarous." How do you respond to the fact that the court has taken the same stance in the state of Texas? I find it impossible for one to be informed on this issue and to conclude that waterboarding is not torture.
I’m so sick of hearing that “investigations would be improper to punish differences in policy” and "this is ideologically driven." Policy decisions are legitimate decisions made within the framework of the law. The decision to torture was illegitimate and illegal. We punish those who commit illegal acts. That is what the rule of law means.
Jews have been hunting down Nazis for 60 years for following military orders of torture and murder. The USA has a history of torture and killing innocent civilians, as well. How about Senator John McCain's carpet bombing Vietnamese villages? Why are we immune from prosecution?
It is quite remarkable…..the defenses FOR torture, I mean.
There's no debate about torture…..whether it should be used, whether it's effective, whether we did it to our own soldiers….are not debate points about torture. They are attempts to defend, or deflect away from, a pre-meditative violation of existing law.
If I murder my neighbor because that action will be effective in solving a property-line dispute……it's still murder.
Liberals…..a bigger threat to this country than actual terrorists. Huhn, I challenge you to watch the decapitation videos of Daniel Pearl and Nicholas Berg. I have. Watch the horror on their faces and listen to their pleas for mercy go unanswered, as their screams evolve into nothing more than a high pitch whistle through a severed windpipe. Then, you come back and tell me why the monsters that executed him, and the many others like them should be afforded any humane consideration. People like yourself and the ACLU continue to interpret the constitution, as you see fit. It sickens me that you are brainwashing future generations of two-bit bail bondsmen and dime-a-dozen divorce attorneys, in your classroom. You sir, and the others like you, are the biggest threat to this country.
I don't think that most people need to be convinced that torture is wrong.
Where you are losing people is in the expansion of the definition of torture, Especially when it is done for political gain.
Uzi, violent and barbaric acts against innocent Americans is nothing new in our history. Here is a historical account of George Washington's decision not to torture or mistreat the British even when they did so to innocent Americans:
“In the Revolutionary War, George Washington and the Continental Army were regarded by the British as treasonous, ‘illegal combatants’ undeserving of the protections of legitimate soldiers, the same category into which the Bush administration was casting terror suspects. As a result, the British freely brutalized and killed American prisoners of war, in conditions considered scandalous even in that day. In contrast, Washington ordered American troops to take a higher road, in keeping with the ideals of the new republic. He insisted that enemy captives must be given food and medical attention and be housed in conditions that were no worse than those of the American soldiers. In directives still eloquent today, he ordered his troops to treat British war prisoners ‘with humanity and let them have no reason to complain of us copying the brutal manner of the British Army…While we are contending for our own liberty we should be very cautious of violating the rights of conscience of others, even considering that God alone is the judge of the hearts of men, and to Him only in this case they are answerable.’ Washington’s orders, which became the backbone of American military doctrine until 2001, were not simply gestures of kindness or even morality. They sprang also from a shrewed [sic] calculation that brutality undermines military discipline and strengthens the enemy’s resolve, while displays of humanity could be used to a tactical advantage.”
Was George Washington a bigger threat to our country than terrorists? Also, how do you address the issue of innocent people we have mistakenly detained and tortured? Should we just detain and torture whoever we want because terrorists thousands of miles away tortured and killed innocents?
Since when do we set our moral standards against those of terrorists? Should we really take the stance that if terrorists are allowed to do it so should we? If you answer "yes," how does that make the US any better than them? Also, please tell me how an unchecked exective with the power to detain people indefinately and torture them, along with suspending the 1st and 4th amendments isn't a threat to the country?
If you believe that officials of the former administration are entitled to due process and the presumption of innocence, then read no further. If you believe that policy differences should be settled in the voting booth rather than the criminal dock and that criminal statutes should clearly define prohibited behavior, then read no further. As a distinguished professor of
Constitutional Law has stated, "our disagreement is so fundamental that no amount of dialogue will bridge the gap".
In The fall of 2006 Senator Kennedy introduced an amendment to the Military Commissions Act of 2006 that would have specifically prohibited waterboarding and other enhanced interrogation techniques. Although Kennedy's amendment failed on a largely party-line vote, the bill passed the Senate on a vote of 65-34 and was signed into law by President Bush. Question: If waterboarding were so obviously torture as to be beyond debate, then why did Kennedy introduce, and the Senate debate, an amendment that would have codified that proposition? Could it be, perhaps, that Kennedy and his colleagues recognized that waterboarding was, at a minimum, legally ambiguous?
Another question: Why haven't Kennedy and the Democrats introduced any legislation since January 2007, when they gained control of both houses of Congress, to fill this legislative gap which they recognized when they were the minority party? The Kennedy amendment would certainly be signed into law by President Obama at the present time.
But the present Congress is apparently not bothered by the perceived need to clarify the law. Such a clarification might be a tacit admission that the law is less than clear in prohibiting waterboarding and other techniques which so inspire the ire of the former administration's political opponents. It would also require Congressional Democrats actually to take political responsibility.
Instead, the political left calls for the creation of a "Truth Commission". What a profile in courage. Congress is charged, under the Constitution, with the oversight of the Executive branch. As the Wall Street Journal's William McGurn states, Congress should be the only "truth commission". If torture was committed in the name of the American people, as alleged by certain elected representatives, then elected representatives accountable to the American people should do the invesitgating. If this issue is as important as some on the left claim, then it is too important to be delegated to some unaccountable "truth commission".
Diplomat has an interesting point. Why are we immune to prosecution? The answer up to now has been that we were too strong militarily to worry about what the Bin Ladens and the Castros thought. We are declining in that area and most of the decline is in national will, which is continuously sapped by squeamish intellectuals who take up the defense of our enemies. When we are finally beaten we'll discover that we can be found guilty of anything the winners decide to charge us with.
Our surviving progeny, while pimping for their sisters/mothers/daughters may perhaps wonder what brought them to that level and the answer will be that the strength of the nation was sapped by professors and media pundits who made their living criticizing the conduct of people who were actual doers instead of talkers.
Our greatest sin and the one that finally brings us down is not the imperialist oppression that liberals cry about; it's not even exploitation. It's weakness.
What you have to do is win.
I'm a bit confused on how refraining from torture and violating US law is a sign of "weakness." Has anyone watched John McCain's interview on Fox News where he states that torture and "enhanced interrogation" makes the terrorists stronger because it gives them an incredible recruitment tool? Apparently not. I also don't understand why people think we need to torture to win this war against terrorism. Here is a post by Jim Manzi of the National Review (I'd like to see somone decry them as liberals haha) pointing out that we have defeated many other dangerous countries that threatneded our very exisitence without resorting to torture:
"One obvious point stands out: we keep beating the torturing nations. The regimes in the modern world that have used systematic torture and directly threatened the survival of the United States — Nazi Germany, WWII-era Japan, and the Soviet Union — have been annihilated, while we are the world’s leading nation…I think the burden of proof is on those who would make these arguments [for torture], given that they call for overturning what has been an important element of American identity for so many years and through so many conflicts."
Torture is defined under United States criminal statutes as intentionally causing "severe suffering." In my opinion, no reasonable person could conclude that confining a naked prisoner in a dark box for 18 hours a day does not cause "severe suffering" – that chaining a naked prisoner in a standing position and depriving him or her of sleep for seven and a half days at a time does not cause "severe suffering" – that being sprayed with 40 degree water, naked, for 20 minutes at a time does not cause "severe suffering" – that suffocating a person for 40 seconds at a time 12 times per day through "waterboarding" which even Bybee and Bradbury admit causes "panic" and "the sensation of drowning" does not cause "severe suffering." Do any of you dispute this?
A common thread running throughout the reasoning of those who disagree with my position is that terrorists deserve to be treated in this manner. That is a mistaken idea. The law governing how prisoners must be treated is not dependent upon the guilt or innocence of the prisoner. I ask you to assume, for the sake of argument, that the prisoner is not guilty of anything – that he or she has no knowledge useful to us. Under that assumption is there anyone who believes that the interrogation techniques described in the torture memos were justified or lawful?
We take the same approach to the treatment of prisoners in police custody in the United States whether they are mass murderers or pure as the driven snow. Is there anyone who believes that police or guards could subject witnesses, suspects, or convicted criminals to this kind of treatment in any federal or state prison or local jail in the United States? Because that is the legal standard under federal law – that is how "cruel, inhuman, and degrading treatment" is defined under 42 U.S.C. 2000dd and the Convention Against Torture and Other Cruel, Inhuman, and Degrading Punishment. Do any of you want the F.B.I. to be able to question witnesses in this manner?
I hope that everyone agrees that it would be a grave violation of the Geneva Convention to treat prisoners of war in this manner. Certainly if our soldiers were subjected to these "interrogation methods" again we would claim that it was not only a violation of the Geneva Convention and the Convention Against Torture but also a war crime just as we did after the Spanish American War, World War II, Korea, and Vietnam. This standard, too, is incorporated into federal law.
I understand how people can in good faith disagree over abortion, political gerrymandering, search and seizure, flag burning, school prayer, guns – all of the issues we have been debating for decades. But I do not see how people can morally approve of treating prisoners in this manner, much less how they can conclude that it is not "cruel, inhuman or degrading" or causing "severe suffering." I thought that the question of torture was as settled as the question of slavery. It is wrong, and the law prohibits it.
Of course the presumption of innocence applies, and of course neither I nor any other individual has the final say as to whether or not this conduct constitutes "torture" or "cruel, inhuman, or degrading treatment" that is in violation of federal law. That is for a jury and the courts to decide, and they may come to the opposite conclusion. Juries do some strange things. I thought it was clear that O.J. Simpson was guilty of murder even though he denied killing his wife and Ron Goldman. In this case the government has admitted in great detail how it treats prisoners, so there is no doubt about the facts. If we look at precedent – which Bybee and Bradbury ignore, amazingly enough, in their memoranda approving these interrogation techniques – there is no doubt about the law as well.
Where do we go from here? What will happen next?
Now that the torture memos have been released and this matter is no longer "top secret" we should expect everyone to explain why they supported or opposed treating prisoners in this manner. General Karpinsky and Judge Bybee have already come forward. I imagine that we will hear from George Tenet, former head of the CIA, Donald Rumsfeld, former Secretary of Defense, Robert Mueller of the FBI, the hundreds of individuals who participated in or witnessed these acts, as well as the prisoners themselves. Lawyers other than Bybee and Bradbury expressed opinions about the legality of these actions, and their views will surface. I suspect that there are hundreds or thousands of memos and reports from interrogators and medical professionals about how the interrogation methods were conducted and whether they worked, as well as photos and recordings of confinement conditions and interrogation sessions, all of which will be revealed. There will be books, documentaries, and perhaps even popular movies on the subject. Public officials and candidates for office will take positions on the question, and this country will decide whether we will or will not torture prisoners.
As Americans, we should all be proud that this is how we settle disputes – through open debate and the peaceful democratic process.
I absolutely do dispute those things.
If the standard is "severe suffering" than the law truly is an ass. I ask you to dispute that a 20 year prison sentence would not invoke severe suffering. Are judges, juries and prosecutors guilty of torture?
I can imagine what I would feel after having been captured by a foreign army and being transported back to god knows where for the purposes of god knows what. Could these feelings be described as severe suffering?
Severe suffering means different things to different people. If you made me bungee jump, I would feel like I was tortured. Yet there are people who will pay for the privilege. A standard like severe suffering means we are a government of men and not of laws.
I have always felt like the law should be more like scoring a football game than scoring figure skating.
Dave, to define these terms it is necessary to look to tradition and precedent as well as dictionaries, and the judgment there is clear – mere confinement is not "cruel, inhuman, or degrading" nor is it "torture." You make a valid point in asking for the law to be more clear, and I agree that if it were possible it would be preferable to make a list of behaviors that are prohibited, but there are many situations where the range of conduct that the law seeks to prohibit defies precise definition. For example, a closely analogous law would be a statute forbidding "cruelty to animals." Would you consider this law to be unconstitutionally vague? Would you insist that the statute would have to include descriptions of every specific behavior that was prohibited? And what about laws prohibiting the abuse of children? Again, would you insist that society may send abusive parents to jail or deprive them of the custody of their children only if the law articulates the precise conduct that constitutes child abuse?
Because this is not a First Amendment case, the vagueness of the law is not evaluated in some abstract, hypothetical sense. We don't ask, "Is the law vague on its face?" Instead, the constitutionality of the law is evaluated as applied to the particular facts of the case – "Is the law vague as applied to someone who chained a prisoner in an upright position for seven days and then waterboarded the prisoner?" Under this "as applied" standard I don't think that very many people will agree with you that this treatment does not inflict "severe suffering" on prisoners. It really isn't very difficult for C.I.A. agents and military interrogators to obey these laws – in the words of the Supreme Court, "to conform their conduct to the dictates of the law" – just don't put the prisoners in confinement boxes, hose them with nearly freezing water, chain them upright for days at a time, or suffocate them with water. A hint for the interrogators – if your interrogation technique requires you to have a to have a doctor standing by with a tracheotomy kit, it's probably illegal!
"Instead, the political left calls for the creation of a "Truth Commission". What a profile in courage. Congress is charged, under the Constitution, with the oversight of the Executive branch. As the Wall Street Journal's William McGurn states, Congress should be the only "truth commission"."
This struck me as a bit humorous…..a Wall Street Journal writer is considered to be from "the political left."
We need a special investigator. That's what the "left" wants.
Giving aid and comfort to our enemies…
Truth commissions, politicians making hay by discrediting our side and writers who in chasing after Pulitzers write human interest stories about the enemy are probably all guilty of it. I suppose a new legal category should be recognized here: Constitutionally Protected Treason.
Has there been any thought that perhaps this issue could better be investigated within a wider jurisdiction than just the USA? I recall hearing on NPR that a Spanish court wanted to try some of our folks for infractions of international laws. Seems some of the guests at Gitmo were Spanish citizens/residents who weren't happy with the treatment they received by US representatives.
Wouldn't it be more objective to settle, or at least define any legal breaches at an international level? Surely most of the 'civilized' nations with standing military forces would benefit from some sort of international concensus on what are/are not acceptable methods to use to obtain information, confessions, or personal histories from international prisoners/detainees/criminals. Since 'trying this case' in the US would consist mainly of many different levels of government officials trying to cover their a**es by finger pointing at other levels, I suggest that the US legal system pass this 'case' to an international court for a more objective analysis of the issues.
Why not recall the US Ambassador to Spain for a Couple months to discuss it?
"Fundamental Constitutional values"–that sounds pretty sloppy!
I guess it means a fundamental right as triggering strict scrutiny. Might be right.
Dan,
(sorry, can't resist)
Before we define any legal breaches at an international level. How are they coming with that international conference on racism?
I think they are making about as much progress as we are in our quest to determine who has the 'right' to decide who has the 'right' to tie the knot with the 'right' partner. Right?
Back to the thread. One of the problems with our free society is the inability to separate popular opinion from supposedly well thought out legal opinions. Torture, like porn, is one of those things that we recognize when we see it, but still can't sit down and write a simple covers-all definition for it. Therefore, unless we can agree that a set of assult-type actions performed during confinement or detention meets a reasonable test for calling the process 'torture', we are going to continue to beat that poor dead horse topic to a pulp without resolving anything.
Perhaps Spain should have the opportunity to try it's hand at defining crimes against it's citizens/residents. If we don't like their verdicts, we can appeal….don't we always do that anyway?
It would be nice to see it resolved for once and for all. Politics keeps us from legitimately resolving the issue. It would be nice to make some progress.
Unfortunately, moving this to Spain will likely just trade our politics for theirs, or international politics.
Remember there are countries that won't condemn North Korea's 'space' program and others that insist the Holocaust never happened.
Who do you appeal to?
I guess the logical path would be through the UN. At some point even that dysfunctional group will have to take sides on the torture issue or no nation will have any grounds for complaint because there won't be any 'rules to be broken'.
I still believe that the USA doesn't have the courage to define rules for itself. We insist on maintaining the 'good guy' image, yet we look the other way until our agents are outed. Either we live up to our national ideals and insist on a no-torture policy or we are really no more credible than the type of countries mentioned above.
I think courage is the wrong word to use here.
We had an opportunity to have a discussion. But it quickly became infused with politics.
Now, for political reasons, we are discussing prosecuting people for giving their opinions. You would have to be an idiot to enter the discussion now. I wouldn't call that cowardice.
What kind of legal defenses would be presented if we were free to charge defense attorneys with being an accessory after the fact? In the strictest sense, if the client is guilty, they are attempting to shield them from prosecution.
Professor Huhn mentions how we treated the Germans after World War II. German prisoners were forced to diffuse land mines. I am not sure if we could get away with that today.
Torture lies somewhere between throwing a drink in someone's face and sticking bamboo chutes under someone's finger nails. Unfortunately in this politically charged environment, we may never learn where that line is.
RE: "What kind of legal defenses would be presented if we were free to charge defense attorneys with being an accessory after the fact? In the strictest sense, if the client is guilty, they are attempting to shield them from prosecution."
The same type of defense that should be employed in any other case involving violent acts. The role of the defense is to make sure the person charged has the equal opportunity to dispute evidence presented against him/her and to make sure the accused is not bulldozed through the system. It is not (or at least shouldn't be) the role of the defense to shield anyone from the facts. It is the role of the jury to decide the merits of the case using clearly stated definitions of the specific acts allegedly performed.
RE:"Torture lies somewhere between throwing a drink in someone's face and sticking bamboo chutes under someone's finger nails. Unfortunately in this politically charged environment, we may never learn where that line is."
I stand by my use of 'courage'. That is what it will take to stand up in the environment you describe and do the right thing. Politics is just a career, the courage to do 'the right thing' is a measure of character….even when they say you are stupid for doing it.
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