Jonathan P. Baird

It has been more than two years since the photographs from Abu Ghraib prison surfaced and the subject of torture re-emerged in our public life. Despite continuing human rights reports about detainee abuse in Iraq, Afghanistan and Guantanamo, public response has been muted and largely indifferent.
The lack of uproar resulted in no independent investigation by Congress. No ranking government official has been held accountable for any torture allegations. Instead, legions of government lawyers have been deployed to explain how abuse did not fit the definition of torture. Their mission has been to extend the legal limits of permissible physical and psychological pain.
The standard explanation from the Bush administration has been the few bad apples theory. A handful of inadequately trained and supervised soldiers went out of control. Higher-ups had nothing to do with it. They have also been arguing that the president has the constitutional power to permit torture.
My perception, and probably the reality, is that most Americans have wanted a president who would torture suspected terrorists. Interestingly, in the 2004 election, John Kerry did not raise Abu Ghraib. Torture policy did not become an issue in the campaign.
To the extent there has been a public debate, it has been obscure. With all due respect to international law, partisan disagreements in legalese about whether international conventions have been violated almost guarantees a limited audience of lawyers and legal observers.
There is a more basic reason people of all political stripes should oppose torture. The use of torture is completely contrary to traditional American values. The drafters of the Bill of Rights were concerned that government might be tempted to cruelty and created a constitutional amendment to safeguard against it.
The Eighth Amendment to the Constitution contains a prohibition against the infliction of cruel and unusual punishment. It protects against and bars the type of interrogation torture conducted at Abu Ghraib and Guantanamo.
Bush administration torture policies are examples of what the founding fathers warned against. They opposed unusual cruelty in the method of punishment as well as disproportionate or excessive punishment. As much as the administration wraps itself in the flag, its torture policies are un-American.
The phrase “cruel and unusual punishment” goes back to the English Bill of Rights of 1689. It shows up in our New Hampshire constitution and most of the other original state constitutions.
At the time of the drafting of the federal Constitution, Patrick Henry and George Mason insisted on the Bill of Rights, including the Eighth Amendment. Henry forcefully spoke out against the use of torture to elicit confessions.
The Eighth Amendment reflected Enlightenment thinking. It introduced broad and idealistic concepts of dignity, civilized standards, humanity and decency. During medieval times and up to the 18th century, torture had been widely used in civil and ecclesiastical courts as a way to obtain confessions. The evaluation of evidence on its own merits rather than forced confession was a legal vision of the founding fathers.
The U.S. Supreme Court has not allowed a frozen or static view of the Eighth Amendment. While all amendments are open to interpretation, the court has considered “evolving standards of decency” in its Eighth Amendment jurisprudence. Unfortunately, one disturbing note must be mentioned. In considering Eighth Amendment violations, the court seems to be paying more attention to the motive or intention of perpetrators than cruel or inhumane treatment.
The American way
Because much information has been released to the public, we know quite a bit about American torture practices. Our current use of torture has its roots in the Cold War. Over the last 50 years, the CIA comprehensively researched and studied the most effective means of torture.
It turns out that psychological torture is the best way to exploit vulnerabilities and break people. The history of American torture research is elegantly laid out in Alfred McCoy’s book, A Question of Torture. McCoy explains that from 1950 to 1962 the CIA ran a massive research project spending over $1 billion a year to perfect torture methods. The result was a breakthrough how-to book, the Kubark Counterintelligence Manual, published in 1963.
There is a direct line between the Kubark manual and the torture policies at Abu Ghraib prison and Guantanamo. The American torture paradigm focuses on sensory deprivation and self-inflicted pain. McCoy shows how the use of isolation, standing, exposure to hot and cold, light and dark, noise and silence, sleep deprivation, hooding and stress positions creates a total assault on all senses and sensibilities.
Abu Ghraib was the result of systemic policies, not a few bad apples. The famous hooded figure with arms outstretched and electrodes attached reflected policy -not its abuse.
Last year, when Sen. John McCain authored a bill to bar all inhumane and cruel treatment to detainees, the White House fought the bill all the way. The president issued a signing statement at the same time the bill passed in order to disregard its content.
In recent weeks, Bush’s civilian lawyers omitted from new detainee policies a ban on cruel and degrading treatment.
When all is said and done, this administration will have earned a place in history as the torture administration. From the top down, it has publicly mouthed opposition to torture while always reserving the right to conduct it.
Torture is not now and never has been an American value. The true American tradition is defense of human dignity.