Jonathan P. Baird

Buried under the avalanche of news stories about the Boston Marathon bombings was the release of an important new report about the use of torture by the George W. Bush administration. The timing for the release of this report could not have been worse. It vanished because the Boston Marathon bombings news stories were so dominating.

The Constitution Project, a legal research and advocacy group devoted to the rule of law, authored a 577 page report concluding that “it is indisputable that the United States engaged in the practice of torture”.

While no doubt there are some who will see this report or any report as partisan, the Constitution Project attempted a bi-partisan, consensus-building approach to the torture question. Two former members of Congress, Republican Asa Hutchinson and Democrat James R. Jones, led their taskforce on detainee treatment.

The report determined that torture had and has no justification. It found that there was no firm or persuasive evidence that torture provided valuable information that could not have been obtained by other means. The report concluded that the use of torture damaged American standing around the world and potentially endangered our military.

I would like to suggest that much of the media discussion around the subject of torture has been superficial. There is much information in the public domain which sheds a deeper light on this darkest of subjects.

I think the most acute and far-seeing perspective on the use of torture by our government has been offered by University of Wisconsin Professor Alfred McCoy. McCoy argues that the roots of torture run far deeper than has generally been perceived. He traces a continuous government research effort going back to the 1940’s to study psychological torture and mind control.

In his book, “Torture and Impunity”, McCoy shows how U.S. intelligence agencies evolved new forms of torture that rely on psychological rather than physical pain. The modern torture paradigm features sensory deprivation, isolation, and the utilization of stress positions. Instead of externally inflicted pain, the emphasis is the use of self-inflicted pain, a much harder type of torture to detect but exceedingly lethal. The goal is to induce psychological regression, complete disorientation of the tortured individual and destruction of the will to resist.

McCoy argues there is a continuity of American experience with torture whether the setting was the Vietnam war, Latin America in the 70’s and 80’s or the Middle East over the last decade. There is a straight line from the tiger cages of South Vietnam to the Latin American disappeared to black sites.

McCoy’s picture of torture is quite at odds with popular understanding. Apologists for torture typically blame a few bad apples. Cynical adherents of realpolitick see torture as nasty but necessary to gain useful intelligence to prevent terrorist attacks and to protect national security.

There is an intellectual dishonesty about not acknowledging our investment and continuing engagement with torture. Now we are more likely to outsource the torture to our allies. McCoy argues there has been a desire to bury the subject and forget. Certainly this has been the unfortunate position taken by the Obama Administration. “Don’t look back – look forward.” That head-in-the-sand approach is almost guaranteed to promote torture in the future since it is based on failing to reckon with the past.

To appreciate the historical context of modern torture, we need to situate American experience within the larger international experience since the time of the Enlightenment. Torture is a bedrock issue in distinguishing between the Dark Ages and modernity. For almost 300 years, anti-torture advocates have made their case for banning the practice although torture remains an utterly contemporary issue around the world.

I would argue that torture is antithetical to American values and it is a relic of a medieval time the Founders wanted to put behind us. I think the 8th Amendment prohibition against cruel and unusual punishment almost certainly would have been understood by the Founders to have included a prohibition against torture. The Fifth Amendment also speaks to torture since the protection against self-incrimination is contrary to torture’s goal, obtaining a confession. The Founding Fathers were part of the Enlightenment generation that despised torture as a form of barbarism and uncivilized behavior.

Since World War II, an international body of law has developed to prohibit torture. We have the Geneva Conventions and the Convention Against Torture. Both treaties have been ratified by the United States. The United States ratified the Geneva Conventions in 1955 during the Eisenhower presidency. Congress ratified the Convention Against Torture in 1994. President Reagan had consistently urged adoption of this treaty. It also should be mentioned that the United States voted in favor of the Universal Declaration of Human Rights in 1948. Article 5 states: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” This Universal Declaration was adopted by the United Nations.

The squirrelly efforts of the George W. Bush Administration to evade legal obligations and to create bogus legal justifications have been well-documented. While Bush and Dick Cheney acted disgracefully and illegally, the actions of the Obama Administration around torture have also been very disappointing. Moving on is a form of silence. Silence is a form of acquiesence and implicit accommodation with our torture history.

Torture is not a partisan issue. We suffer from a bi-partisan lack of indignation as well as a willful lack of awareness. Senator Patrick Leahy of Vermont had suggested a Truth Commission to explore this dark side but neither Congress nor the White House were interested. Forgetting is a guaranteed way to allow this disgusting and inhuman practice to continue.