Below is my column today in USA Today on the torture report. This is the slightly longer version that ran on the Internet.
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As Shakespeare wrote in the Merchant of Venice, “truth will out.” The release of the report of the Senate Intelligence Committee was the long-awaited truth about one of this country’s most shameful chapters. Like water, truth has a way of finding its way out even against the determined obstruction. However, the question is what truth came out this week in the hundreds of pages of highly disturbing, and often disgusting, details of the “enhanced interrogation” program.
There are obvious “truths” about waterboarding being a crime and how torture is a poor vehicle for obtaining intelligence.
Then there are truths that are less obvious but equally clear in the pages of this report. Here are three such inconvenient truths that emerge from the Torture Report:
Truth #1: The CIA proved it is immune from legal restraints
As damaging as this report is to the reputation of the Agency, it reaffirms the underlying assumption that made the torture program possible: CIA officials enjoy effective immunity from the law.
The report details crimes that run gamut of the criminal code. It starts with torture itself that is not just a crime but a war crime. However, the report also details – and names some of those responsible – for destroying evidence, lying to Congress and obstructing investigations into the torture program. Former Director Michael V. Hayden is cited for actively telling employees to lie and for personally giving false information to Congress . CIA Deputy Director John McLaughlin was expressly called on the Senate floor by Sen. Dianne Feinstein for giving false information to Congress. CIA General Counsel Scott Muller in 2003 is quoted as lying to the White House about the existence of videotapes on the interrogations. The report details false statement after false statement given by past directors and high-ranking officials to Congress, to the White House and to the American people. It also details how, after CIA were told about inquiries into the legality of the torture program, officials promptly ordered the destruction of video tapes to get rid of the evidence.
Yet, what did all of that prove? It proved that the CIA could commit all of these crimes, even war crimes, and not face a single federal charge. Not one. The only thing more chilling than the torture carried out in our name was the fact that it was carried out with utter impunity.
Truth #2: The Justice Department First Facilitated Torture And Then Obstructed Its Prosecution
One of the least discussed “truths” in this study is the ignoble role played by the Justice Department. During the Bush Administration, figures like Jay Bybee and John Yoo issued the infamous “torture memos” that gave legal cover for the programs. The only thing more tortured than the subjects was the legal authority used to justify their abuse. However, the report also details how the Bush and Obama administrations obstructed the investigation at every turn. Six months after Congress began to investigate the program and was demanding to interview key players, Attorney General Eric Holder suddenly announced the Justice Department’s own investigation under John Durham. As soon as the Justice Department investigation was announced, virtually every key player refused to speak with congressional investigators in light of the internal investigation. As expected, Durham later found that not a single crime could be found. Not in the destruction of evidence. Not in the false statements. Certainly not in the torture itself.
Holder and the Justice Department proved as much enablers as did their predecessors in the Bush administration. Soon after taking office, President Obama shocked many by going to the CIA and assuring employees that, despite his recognition of the torture, no one would be prosecuted. Holder and the Justice Department played as great a role in fulfilling that pledge as Justice did in facilitating the program itself.
Truth #3: Torture remains a question of effectiveness for many in government
Perhaps the most chilling truth is that the CIA and key American leaders continue to deny the very premise of both international and domestic laws. The key response of the CIA was to insist that the program was “effective” – the very rationale that is expressly rejected in the Convention Against Torture and other laws. It does not matter if torture was useful or productive. It is a war crime. We should know. We wrote that language saying that no nation can justify torture due to “exceptional circumstances” or effectiveness. Yet, the very agency that committed these crimes has continued to argue that those crimes were productive exercises.
The current debate over whether torture works reveals how far we have fallen as a nation in our view of this war crime. Not only does our embrace of torture threaten our own soldiers and citizens abroad, we have lost the moral high ground internationally. The truth is that torture could easily return to the United States so long as it is viewed as a practical question instead of a moral one.
Jonathan Turley, a law professor at George Washington University, is a member of USA TODAY’s Board of Contributors.
Max,
How is quoting Reagan on this issue, throwing him under the bus???
That is just not grounded in truth.
That quote shows he had MORE honor ON THIS SUBJECT than
Bush or Chenney….
Prairie,
you said….
Would prosecuting the former and impeaching the latter help heal the country?
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What exactly would Obama be Impeached for???
Can you please specify???
davidm:
As a sole practitioner, I have some database access limitations. Fortunately, there are two law school libraries in Orlando. But I would suggest Google scholar. There’s a huge legal repository there, including federal caselaw.
I keep seeing people here say… Obama still engages in torture …
and that Clinton did as well…
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Do any of you have PROOF of this? or are you just trying to paint Obama and Clinton
as being as bad as Bush???
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Somebody above then posted a video that was said to have details about how Bradley Manning was being tortured… LOL
If you watch the video, it said that the conditions of his prison are torturous….
NOT that he was actually being tortured… and certainly not in the ways listed in that report…
and the fact that he was kept awake and he accuses them of forcing him
to be nude… I am NOT so sure I really believe him….
He was also made to wear a suicide smock….
Perhaps at one point, they felt that his clothing posed a danger, that he would
use his clothing to hang or strangle himself…
I would just not use manning as prof of anything….
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http://news.yahoo.com/un-expert-calls-prosecution-over-us-torture-111549876.html
European Union spokeswoman Catherine Ray emphasized Wednesday that the Obama administration has worked since 2009 to see that torture is not used anymore but said it is “a commitment that should be enshrined in law.”
German Foreign Minister Frank-Walter Steinmeier was quoted as telling the Bild daily that Obama had clearly broken with Bush policies and, as a result, Washington’s “new openness to admitting mistakes and promising publicly that something like this will never happen again is an important step, which we welcome.”
Living in a nation with individual freedoms has a cost, but living in a totalitarian police state also has costs.
Dwight D. Eisenhower had a great perspective on this. Eisenhower said if you want to be safe go to prison! You will be fed and clothed but won’t be free.
http://youtu.be/sUHoi1gKfrM
Worth watching, when you have some time.
one more:
http://www.cnn.com/2011/11/16/opinion/nordgren-waterboarding/
Waterboarding isn’t torture? Try it
The United States has also been historically inconsistent on this issue. Although the use of waterboarding was widespread in the aftermath of 9/11, in the aftermath of World War II the United States not only condemned but prosecuted and convicted a number of Japanese troops and officials for subjecting United States troops to waterboarding…
In each case the experimental group estimated the interrogation tactics to be significantly more painful, less ethical, and less acceptable as a practice than participants who made their judgments free of pain, as policymakers normally would. These findings suggest that policymakers (and the concerned public) suffer from a fundamental bias when evaluating waterboarding and other interrogation tactics.
It appears that the legal standard for evaluating torture is psychologically untenable. Policymakers simply cannot appreciate the severity of interrogation practices they themselves have not experienced, a psychological constraint that in effect encourages torture.
Indeed, in several well-publicized incidents, public figures who denied that waterboarding was torture volunteered to experience it themselves, and almost instantly changed their minds. In combination, a range of empirical evidence points to the need for a more restrictive legal standard for evaluating the ethicality of interrogation techniques.
David I think you need to consider this when saying you don’t think it constitutes torture.
Our military are water boarded. It’s part of the training process, for the SEALS probably, but many more. My husband served on a submarine and you would be stunned to hear what they are put through. It’s hard, but it’s for their own safety. I wonder if you would be so adamant if you had been in one of those buildings. I won’t bore you with stuff sororities and fraternities used to do to new members. My brother had to make a paddle, to specific measurements, and on what used to be called “hell night” every member got to whack him with it on his bare behind. You would call that torture. He didn’t sit for a month.
leejcaroll – I have yet to get anyone who can cite a case where a Japanese soldier was convicted and executed only for waterboarding someone. Surely you can do that for me.
Paul you can do that for yourself.
leejcaroll wrote: “David I think you need to consider this when saying you don’t think it constitutes torture.”
Let me be clear that I am against torture. My primary question is whether waterboarding is torture. I was given a report in this thread about how we prosecuted others during WW2 for waterboarding, but the information in that report did NOT substantiate what others claimed it did. Nobody was prosecuted for waterboarding alone. Waterboarding was simply listed along with beatings and other torturous acts. When a POW was asked whether the waterboarding was painful, he replied no. He said waterboarding was NOT painful, but rather it simply caused him to pass out many times.
You mention people subjecting themselves to waterboarding and then proclaiming, “oh yeah, that is torture.” I ask you, did any of them allow people to pull out their fingernails so they could say, “oh yeah, that is torture.” I suspect not. People know what torture is, and they usually do not subject themselves to it willingly just to know what it is like. The fact that journalists submit to waterboarding in order to experience it suggests that it is NOT torture, despite what they claim afterward.
The fact that the military waterboards our own military personnel as part of their training again suggests that it is NOT torture. What other forms of torture do they subject our soldiers to? Do they pull out their fingernails so they can learn how to resist that form of interrogation? I don’t think so. Furthermore, if waterboarding is torture, then everyone here should be strongly objecting to our military leaders subjecting our soldiers to it as part of their training. It is absolutely unacceptable for our military to torture our own soldiers. Do you believe that our military should torture our own soldiers?
I am curious what you think about tasers. We also use tasers on LEO’s as part of their training. Clearly tasers do cause pain and discomfort, sometimes even death. Would you argue that every suspect apprehended by a taser is being tortured? Maybe we need to do something about that.
I simply seek for a rational consistency to the labels we use for these actions. I am not seeking to justify torture. It is frustrating to hear a lawyer claim that the matter about waterboarding is completely settled in law as being torture, yet nobody here seems to be able to show me even one legal document that makes the case that waterboarding is torture. All we have are CNN reports and the weak opinion of journalists. Even the strongest legal documents shared here that condemn torture fail to identify waterboarding as torture.
Davidm:
Let me see if I can help you understand why waterboarding is regarded as torture. We shall stipulate that waterboarding does not leave physical injury on the body. Do you not suppose that the experience of feeling like one is drowning and unable to take a breath may cause lasting psychological trauma? Especially if repeated over and over again? Admittedly, our soldiers were subjected to waterboarding during their SERE training, but there is a profound difference between what they experienced and a “non-training” waterboarding, namely, our soldiers knew that their waterboarding would not prove fatal. A terrorist suspect has no guarantee that he will survive a waterboarding- he may drown either intentionally or accidentally. That is why waterboarding is torture. Russian roulette is no different. Would you not consider that torture even though it may not leave any physical injury?
The fundamental problem is this: if there is no absolute right to remain silent during an interrogation, then it follows that any technique to elicit information including unmistakable torture is allowable. Why? Because what is the point of doing any painful or degrading technique if it does not elicit information? The interrogator will keep increasing the pain until he gets what he wants. It would make no sense to stop the pain until it succeeded. Silence is not an option when you do not have a right to remain silent. And if a suspect forces the noble and righteous interrogator to use torture because the suspect is too stubborn, then the blame lies with him for not talking earlier.
Obviously, the CIA knew that it could not engage in unmistakable torture such as cutting off fingers. It was hoping to get as close to the line as possible to effectuate its ends without committing war crimes and attempted to blur the distinction with the euphemism “enhanced interrogation.” The problem was that it did cross the line either through incompetence or perhaps out of rage in reaction to a smirking recalcitrant suspect. Either way, there was a consciousness of guilt as evidenced by the act of destroying of the videotapes of the interrogations.
” Admittedly, our soldiers were subjected to waterboarding during their SERE training, but there is a profound difference between what they experienced and a “non-training” waterboarding, namely, our soldiers knew that their waterboarding would not prove fatal.”
I think that gets it about right. Whether an activity is training or torture depends on things like the level of force, duration applied, the magnitude of effect and the intend of the instructor or the torturer.
For example, I can place you on a rack to demonstrate the machine and what you might expect. Or I can use the rack to pull your joints apart and break you body. One is training, the other is torture. The difference lies in the intention and the force applied.
The claim that water boarding cannot be torture because we used it on our own troops does not stand up the scrutiny.
Water boarding was chosen for use in training for escape and evasion precisely because it is a technique used for torture.
Jeff Silverman – in graduate school I was forced to take a class from a professor who was about the same intellectual level as pond slime. He did not know what he was talking about in the class he was teaching, yet I was forced to have him inflicted on me for 50 minutes, 3 times a week, for 16 weeks. It was pure torture and not just for me.
” It was pure torture and not just for me.”
Poor Paul. That wasn’t even loud rock music and you are still suffering the results.
bfm – given the definition of torture used today, that class clearly was torture. It was a required course, he was the only professor teaching it and I would have to wait four more years for him to go on sabbatical. I just my best to make the class uncomfortable for him. 🙂
David your typical mo you say give me examples give me definitions and then continue to say no one has done that. As for your not getting that Russian roulette, an assininity when doing it with your “buddies”, is torture when you are doing it to someone who absolutely believes he can be killed during this and it is being used in an effort to get information form them. Torture, repeatedly has been shown to you to be defined as physical or (I can’t go back upthread to find the correct phrasing so my rewording minimizes the way it is worded) or psychological infliction of pain. Threatening someone with death to get information is torture. You can write all the words you want trying to obfuscate the fact that people have responded to you with definitions including the wording from the convention on torture but it doesn’t change that people have in fact given you the definition(s) That you don’t want to see it as torture reflects back on you and not on the definitions.
This is what was done. I cannot believe anyone whether for this or against cannot understand how these actions do not constitute torture.
Detainees were forced to stand on broken limbs for hours, kept in complete darkness, deprived of sleep for up to 180 hours, sometimes standing, sometimes with their arms shackled above their heads.
Prisoners were subjected to “rectal feeding” without medical necessity. Rectal exams were conducted with “excessive force”. The report highlights one prisoner later diagnosed with anal fissures, chronic hemorrhoids and “symptomatic rectal prolapse”.
The report mentions mock executions, Russian roulette. US agents threatened to slit the throat of a detainee’s mother, sexually abuse another and threatened prisoners’ children. One prisoner died of hypothermia brought on in part by being forced to sit on a bare concrete floor without pants.
http://www.theguardian.com/us-news/2014/dec/09/cia-torture-report-worst-findings-waterboard-rectal
ljcarroll, There’s a saying somewhere about not believing what you see or what you hear. But I do remember believe nothing you read.
If DiFi thought the people of this country should know these things, then why didn’t she have them testify and be subject to questions from everyone on the committee? This is back door politics. Somewhat better done than ACA, but the same thing. So here’s some food for thought. Fool me once, shame on you, fool me twice, shame on me. Just sayin
leejcaroll – do you know what causes hemorrhoids? I do know pregnancy can cause them. Not sure that enemas can.
Sandi
Is America great at raping men in overseas black sites out of preview of Law?
Prairie
Yes, it heals nations.
Sandi
I can criticize the LA Lakers…
… That doesn’t make then Great.
What does make them great is when they face their sins and make the necessary corrections… Win or lose.
Max-1 – I would just give up and switch to the Clippers.
Max-1. I don’t think there’s a country in the world who would deny your criticizing the Lakers.
There are a ton who would not allow you to criticize the country.
There is nothing that can’t be exaggerated.
I don’t like it when DiFi thinks I’m stupid, along with millions of others. We are not stupid, but we do have long memories.
Why was Holder announced as leaving and still there? I’m sure there’s a political reason somewhere. Just sayin
Inga,
“The question is, will we ever recover from these two Presidents? Have they ruined America?”
Would prosecuting the former and impeaching the latter help heal the country?
And yes,
We raped some folks.
Rape under confinement by your captor… IS an act of torture.
We hung Nazis for THAT!
Max-1 – gonna need a cite to our hanging Nazis just for rape.
It’s always less mentally traumatic to call their RAPE a sexually enhanced experience…
… It plays better on their Facebook account.
Jill:
I do not in fact know that a majority of Americans supported prosecution for torture, either now or in 2009. See my comment to Ross above.
Olly
Are you saying I can chop your head off because I think you might be ISIS and, afterAll… 9/11
Olly,
Then the end justifies the means?
Because the Founders never specifically outlawed “sexually enhanced experiences”
NO?
Illy, Thank you.
I agree Max. Torture for the purpose of tyranny and in defense against tyranny are not morally equivalent. The former has no just cause.