Torturing America’s Values

“The United States is committed to the worldwide elimination of torture

and we are leading this fight by example.” – George W. Bush

Although I am loath to use “Senate” and “intelligence” in the same sentence, nonetheless, the Senate Intelligence Committee released its report a few months ago on the use of torture after 9/11. Although I haven’t read it, much of the report apparently reveals and confirms what was already known about our torture programs, a.k.a., “enhanced interrogation techniques,” conducted by the CIA.

Committee Chairwoman Senator Dianne Feinstein, in presenting the report to the Senate on Dec. 9th, called the CIA’s actions in the aftermath of 9/11 . . .

“a stain on our values and on our history. The release of this 500-page summary cannot remove that stain, but it can and does say to our people and the world that America is big enough to admit when it’s wrong and confident enough to learn from its mistakes.”

Sen. Feinstein went on to name names, including presidents Bush and Obama, former CIA directors, top military brass, and lawyers who, through some labyrinthine logic, opined that torture, er, enhanced interrogation techniques, were legal.

Besides, they say they were merely following the directive in the 2001 Congressional Resolution, “Authorization for Use of Military Force Against Terrorists,” which says, in part,

“. . . the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 . . .”

None of this, because most it was widely known anyway, should be surprising. Nor should it be surprising that those who authorized and were directly involved in these programs, meaning those who put “a stain on our values and on our history,” are not being held accountable. They argue that they were merely trying to obtain information that would either help us (a) find those behind the 9/11 attacks or (b) head off any future attacks.

On December 9, 2014, Senator John McCain, the only member of Congress who has endured torture, made a speech in support of the Report. McCain said, in part,

“The truth is sometimes a hard pill to swallow. It sometimes causes us difficulties at home and abroad. It is sometimes used by our enemies in attempts to hurt us. But the American people are entitled to it, nonetheless.

“They must know when the values that define our nation are intentionally disregarded by our security policies, even those policies that are conducted in secret. They must be able to make informed judgments about whether those policies and the personnel who supported them were justified in compromising our values; whether they served a greater good; or whether, as I believe, they stained our national honor, did much harm and little practical good.

“What were the policies? What was their purpose? Did they achieve it? Did they make us safer? Less safe? Or did they make no difference? What did they gain us? What did they cost us? The American people need the answers to these questions. Yes, some things must be kept from public disclosure to protect clandestine operations, sources and methods, but not the answers to these questions.”

In 1988, the U.S. entered into a UN treaty called, “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.” It was signed by President Reagan that year and in 1994, it was ratified by a Republican Senate. Based on the obligation in the treaty that member states establish laws consistent with the treaty’s terms, Congress, by unanimous vote, adopted the War Crimes Act of 1996. This statute defines torture and related acts consistent with the Convention.

The pertinent definitions in the Torture Statute (18 U.S.C. § 2340) are:

(1) “torture” means an act committed by a person acting 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;

(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from –

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

(C) the threat of imminent death; or,

(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.”

(3) “United States” means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.

However, ten years later, the Supreme Court ruled in Hamdan v. Rumsfeld that Common Article 3 of the Geneva Conventions applied to the War on Terrorism, implying that any interrogation techniques that violated Common Article 3 constituted War Crimes. The Bush administration, apparently aware that its “enhanced interrogation techniques” were, in effect, war crimes, scrambled to water down and to make legal, that which was illegal under the treaty. Thus came the Military Commissions Act of 2006 amending the War Crimes Act.

Just as we were getting out of the torture business, along come the killer drones. Although accurate figures are hard to find, most sources I consulted say that there are many innocent victims, including children, of drone attacks; collateral damage, the government calls it.

A 2012 study of drone attacks by Stanford Law School and New York University’s School of Law reports that “the number of ‘high-level’ targets killed as a percentage of total casualties is extremely low — about 2%.” So, 97% are either low level targets or not targets at all. This is tantamount to water-boarding not only a suspected terrorist, but his family and his neighbors as well.

So, drone strikes in countries we are not at war with, and that cause numerous unintended casualties against persons who may or may not be a threat to the U.S., seem to me are as much “a stain on our values and on our history” as torture. (See A New Star Chamber? in this blog.)

Back in 1997, I wrote a letter to then House Speaker Nancy Pelosi requesting the commencement of impeachment proceedings against President Bush and Vice President Cheney, citing a number of offenses that insult our constitution and the rule of law; i.e., “high crimes.”

Here I will just paraphrase the ending of that letter as if it were directed to president Obama and other officials who continue to outrage the American conscience in their conduct of the war against terror.

“I would just ask that you make the short trip over to Arlington National Cemetery. Standing amid the noble souls resting there, you tell them that their sacrifice, their courage, their last full measure of devotion to their county was in vain. Tell them that their oath to protect and defend the Constitution and “bear true faith and allegiance to the same” with their very lives – at the battles of Trenton and Yorktown, Lundy’s Lane and New Orleans, Fredericksburg and Gettysburg, Santiago Bay and San Juan Hill, Cantigny and Saint-Mihiel, Iwo Jima and Normandy, Pork Chop Hill and Heartbreak Ridge, Dak To and Khe Sanh, Bagdad and Fallujah, Kandahar and Tora Bora – is of no consequence today. Tell them the government they fought for and died for no longer appreciates their dedication to duty and honor. Tell them you have other priorities.”

This is a revised version of an Op-Ed by the Author that appeared in the Joplin Globe on December 14, 2014.