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Torture and the Rule of Law
January 4, 2012
Last week, the Senate Intelligence Committee released a 6,000-page report providing a comprehensive analysis of the CIA’s detention and interrogation policies. Sen. Dianne Feinstein (D-Calif.), the committee chair, released a statement saying that “the report uncovers startling details about the CIA detention and interrogation program and raises questions about intelligence operations and oversight.”
The report could shed some light on the darker side of the U.S. government’s war on terror, but with the Obama administration reportedly planning to keep the document classified, it is highly doubtful the full version will ever be released to the public. Most likely, the government will release a heavily redacted report that will in no way threaten to hold anyone accountable.
While that certainly does not bode well for the future of justice or the rule of law in this country, it suits the interests of the national-security state, which thrives on secrecy and widespread public ignorance. The last thing the state wants is a well-informed public asking questions and having some idea of what’s actually happening overseas.
That the Obama administration would prevent the release of the full report is not surprising. Covering up government wrongdoing and crimes under the banner of “state secrets” and “national security” has become de rigueur.
Commenting on the report, Feinstein says, “I strongly believe that the creation of long-term, clandestine ‘black sites’ and the use of so-called ‘enhanced-interrogation techniques’ were terrible mistakes.”
Well, those “enhanced-interrogation-techniques” were not only “terrible mistakes.” They were also crimes under U.S. and international law.
Under section 2340 in title 18 of the U.S. Code, an act of torture committed outside the United States is a felony. The law defines torture as “an act committed by a person under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.”
The 1948 Universal Declaration of Human Rights, which the United States helped draft and then signed, bans torture in all forms. In addition, the United States is a party to multiple conventions and treaties that prohibit torture and supposedly have the force of law. International law defines torture during an armed conflict as a war crime, and mandates that any person ordering, facilitating, or even insufficiently preventing torture is liable under the doctrine of “command responsibility.”
No one disputes that the enhanced interrogation techniques ordered by the George W. Bush administration, employed by the CIA and the Pentagon, and tacitly approved by select members of Congress were intended to inflict severe pain and suffering on persons in the custody of the U.S. government.
ABC News reported on April 9, 2008, that “the most senior Bush administration officials discussed and approved specific details of how high-value al Qaeda suspects would be interrogated by the Central Intelligence Agency.” According to the article, those involved included
Vice President Cheney, former National Security Advisor Condoleezza Rice, Defense Secretary Donald Rumsfeld and Secretary of State Colin Powell, as well as CIA Director George Tenet and Attorney General John Ashcroft.
Moreover, it has been reported that Democratic congressional leaders were briefed by the Bush administration on the proposed “enhanced interrogation techniques” in 2002 and 2003 and that their attitude during the briefings was “quiet acquiescence, if not outright support.”
So it is clear that high-ranking U.S. government officials did indeed violate U.S. and international law. Yet no indictments have been forthcoming. Why?
Well, one reason is that support for torture was evidently bipartisan, and therefore neither political party is interested in seeing the rule of law upheld in this matter. After all, if the law were followed, it could very well mean lengthy prison sentences for some of the country’s most prominent political figures.
Some defenders of enhanced interrogation have resorted to semantics, contending that the harsh methods did not legally constitute torture because they were not referred to as “torture” by White House lawyers and other U.S. government officials.
The Atlantic Monthly’s Andrew Sullivan demolishes that absurd argument in an article where he correctly points out the similarities between the Gestapo interrogation methods called “Verschärfte Vernehmung” (German for sharpened or harsh interrogation), and the U.S. government’s methods of enhanced interrogation. Among the “enhanced interrogation” techniques favored by the Gestapo were subjection to extreme cold, sleep deprivation, suspension in stress positions, and deliberate exhaustion — all methods employed by the CIA and the Pentagon. Sullivan writes,
The very phrase used by the president to describe torture-that-isn’t-somehow-torture — “enhanced interrogation techniques” — is a term originally coined by the Nazis. The techniques are indistinguishable. The methods were clearly understood in 1948 as war-crimes. The punishment for them was death.
I imagine those Americans who support (or acquiesce to) the U.S. government torturing suspected terrorists probably do so because they assume that such brutal methods are necessary for national security and will only be used against foreign evildoers, or, more specifically, evil Muslims. These supporters seem to believe that, being decent, law-abiding citizens, they themselves have no reason to fear ever being tossed into one of the government’s torture chambers. That, of course, is not only a morally warped point of view; it is also terribly naïve. History demonstrates that such abuses of power always expand beyond their original targets.
The ugly truth is that the U.S. government has been involved in torture for decades, though U.S. officials had traditionally preferred to covertly farm the sordid practice out to subsidiaries and proxies abroad. The innovation George W. Bush, Dick Cheney, Donald Rumsfeld, and their associates introduced in 2002 was to make it official U.S. policy.
There was the infamous Phoenix Program of the 1960s and early ‘70s, a counterinsurgency operation ostensibly run by the South Vietnamese army but actually coordinated by the CIA. The program involved the capture of tens of thousands of Vietnamese civilians suspected of being Viet Cong, many of whom were tortured and killed under CIA supervision.
During the 1970s (and perhaps on into the 1980s), the CIA and the Pentagon participated in Operation Condor, a campaign of anti-communist political repression carried out by South American right-wing regimes, involving terror, assassination, and torture. Similar programs existed to prop up right-wing “pro-American” governments in Central America. Many of those guilty of the worst human-rights abuses during this time received training at the U.S. Army’s School of the Americas.
Now, the context of these events was the Cold War, when it was believed that such indelicate methods and policies were necessary to hold back the Red Menace. “We” had to support “our” side against “their” side by any means necessary, lest the world be taken over by communists, or so the Cold Warriors claimed. A similar national-security meme has been created to justify today’s torture regime.
If I may paraphrase Samuel Johnson, national security is the last refuge of a scoundrel.
This article was first published by the Future of Freedom Foundation.
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