Mister Solly Mack is a U.S. soldier. This is an issue paper he wrote. Email or PM for permission to use whole or in part. Thank you.
Framing the Torture
When was the first terrorist attack committed on United States soil? When asked, many people will respond September 11, 2001. So much emphasis has been placed in the media and public forums on terrorism “hitting home” that a lot of people think domestic terrorism is a new threat. When reminded of the April 1995 Oklahoma City bombing, they respond by saying they meant foreign terrorists. Now there is a great deal of anxiety and fear within the United States that interests outside the country are developing continuously greater capabilities to launch attacks within our borders. The government has advanced this fear as a rationalization for actions that would ordinarily lead to public outcry, impeachment hearings, and criminal prosecutions. Many people will tolerate extraordinary measures to feel safer.
The United States government has developed and implemented a program of torture in direct violation of international law and treaties. When details about the abuse and torture of our detainees came to light, the government framed the issue in such a way that the debate revolved around whether torture was effective and when it could be justified without addressing the fact that torture is illegal. I will explore some of the reasons that so many people have been convinced that torture is necessary. I will highlight several ways that the legal system has been corrupted and manipulated to help those guilty of war crimes avoid prosecution.
Government sanctioned torture has a long history. Until the year 1215, a person suspected of a serious crime in Europe was subjected to ‘ordeals’ such as trial by fire to determine their guilt (Langbein 4). It was thought that God would infallibly judge the person. In 1215 the system changed and human judges replaced divine judgment. As humans were not infallible, a high burden of proof was instituted. A conviction required two unimpeachable eyewitnesses or the confession of the accused. It followed that if a person contested their charges and there was only one witness such as the victim, there was no way to secure a conviction. The purpose was to exclude circumstantial evidence. The result was that “it would not have mattered in this system that the suspect was seen running away from the murdered man's house and that the bloody dagger and the stolen loot were found in his possession. Since no eyewitness saw him actually plunge the weapon into the victim, the court could not convict him of the crime.” (Langbein 4). Since the rule of two witnesses could not be manipulated, the voluntary confession was exploited to increase convictions. If the magistrate deemed that there was probable cause, the accused could be coerced to “voluntarily” confess. So it was that torture was officially sanctioned from the 13th century until it was abolished in the 18th century. The law of torture survived in spite of the fact that it was known to be flawed. The extremely high burden of proof led to coerced confessions replacing unattainable convictions.
Even though torture was officially removed from judicial proceedings, the practice has continued. According to James Park Taylor, “Governments have always found a basis on which to justify torture, usually predicated on the perceived desperate consequences if the affected government is not allowed to resort to torture.”
Modern laws against torture began after World War II in response to the reported prisoner abuses perpetrated by Nazi Germany. The Nuremberg Tribunals were the first truly global recognition that international limits had to be placed on conduct that could not be justified. As a result the proscription against torture has been codified in numerous treaties and declarations, including the Universal Declaration of Human Rights, the Third and Fourth Geneva Conventions of 1949, the International Covenant on Civil and Political Rights, the United Nations General Assembly Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Punishment, the American Convention on Human Rights, and the Convention Against Torture (Taylor). If the guidelines established in even one of these numerous treaties, all of which were accepted by the United States, were followed, there would be nothing to debate. The definitions of torture and abuse are clearly defined and the legal framework is already in place to prosecute those guilty of the current detainee abuses. In fact, the United States assisted in prosecuting Japanese soldiers for water boarding, which is one of the “enhanced interrogation techniques” our government currently tries to justify.
In contrast to the common sense approach of enforcing the laws that currently exist, our government has opted to try and pass new laws that prohibit torture and abuse. On the surface this seems unnecessary, but a closer look indicates that the actual goal seems to be to redefine the scope of what is prohibited and sufficiently narrow the definitions to allow those who are guilty to avoid prosecution.
Of particular interest for this context is the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly on 9 December 1975 (italics are mine):
Article 1
1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity…
Article 2
1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.
Article 3
1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.
Article 4
1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.
2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature… (qtd in Taylor).
Additionally, the Supreme Court has ruled that the Bill of Rights applies to those in our custody regardless of citizenship. This would seem to preclude most of the legal arguments such as labeling our detainees “enemy combatants” to avoid having to follow guidelines concerning their treatment or the “good faith” argument which states that the perpetrators were following the advice of their superiors that their actions were legal. The Military Commissions Act of 2006 specifically mentioned some of the illegal procedures of which we had been guilty, but granted retroactive immunity to those who had committed the crimes. Furthermore, while Department of Defense personnel were prohibited from torturing prisoners, the Central Intelligence Agency (CIA) was exempted from these restrictions (Cutler 43-44). The effect is that the military was granted immunity for their crimes and CIA was granted immunity from past or future violations of these laws. Obviously nobody should be above the law, so we need to enforce the law in a uniform manner. The international community has repeatedly called for us to be held accountable for our actions. Many experts in foreign affairs agree that our credibility and influence is at stake.
While the response of the government appears to be explained by their attempt to exempt themselves from prosecution for war crimes, why do the citizens accept these justifications? According to Janoff-Bulman there are several widespread erroneous assumptions about torture. The main error concerns their misunderstanding the goals of torture. Torture is believed to be effective in eliciting information, while in reality torture is only effective in modifying behavior. The fear of pain and duress will cause the detainee to confess or implicate others as a behavior, but will not produce valid testimony. Another misconception is to underestimate resistance. People will focus on the pain and suffering of the victim as a tool of compliance without taking into account that some victims will become entrenched in their resistance to the point of actual dissociative process. This means that victims will have an uncontrolled respond to the extreme duress causing restricted consciousness and a minimized perception of pain (Janoff-Bulman 432-433). The result is that most people who support torture as necessary to root out information about conspiracies and threats base their support on false assumptions. As with any ignorant assumption, education is the best cure. The other main reason for the support of mistreating our detainees is revenge for a perceived attack, but there again, there is no way if knowing if we have the guilty parties until a better system is in place to gather information.
The long history of state sponsored torture has done little to prove its worth for anything other than the erosion of our freedoms and the implementation of a strict state control of the citizens. The implied threat should be apparent to all. Who will the state label as an enemy next? If we tolerate these abuses, it could be any of us.
Works Cited
Cutler, Leonard. "Human Rights Guarantees, Constitutional Law, and the Military Commissions Act of 2006.” Peace and Change 33.1 (Jan 2008): 31-59. EBCSOhost. Web. 27 Apr 2009.
Janoff-Bulman, Ronnie. "Erroneous Assumptions: Popular Belief in the Effectiveness of Torture Interrogations." Peace and Conflict: Journal of Peace Psychology 13.4 (2007): 429-435. EBCSOhost. Web. 25 April 2009.
Langbein, John. "Torture and Plea Bargaining." The University of Chicago Law Review 46.1 (1978): 3-22. JSTOR. Web. 26 Apr 2009.
Taylor, James. "Law in the Age of Terrorism: Torture, Rendition, & the United States." The Montana Lawyer 30.10 (June/July 2005). LexisNexis Academic. Web. 10 May 2009.
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