Sunday, January 21, 2007

Saying no to torture

"Treat [British POW's] with humanity, and Let them have to reason to Complain of our Copying the brutal example of the British army in their Treatment of our unfortunate brethren."

—George Washington, in an order to Lt.Col Samuel Blachley Webb during the Revolutionary War.

Washington "often reminded his men that they were an army of liberty and freedom, and that the rights of humanity for which they were fighting should expend even to their enemies."

—Historian David Hackett Fisher in Washington's Crossing (2004)
While the torture "debate" inexplicably continues, this might be a good time to propose a solution that worked quite well during the first 214 years of this country's existence: don't torture, ever. Or abuse, mentally or physically. Apart from the obvious moral issues that shouldn't (but apparently do) require discussion, it's in the manifest self-interest of the U.S. to stop torture, if only for the protection of its own soldiers who might some day be held by foreign governments.

This solution requires no more than a strict application of the Golden Rule: treat prisoners as well as we have a right to expect American prisoners of war and citizens to be treated abroad. Such a rule against torture would apply equally to all prisoners in U.S. custody, of every nationality, whether members of the uniformed armed forces of another country, "detainees," "unlawful combatants," or American citizens.

All persons have an absolute right to be free of torture and abuse, mental and physical. Period. No exceptions and no wiggle room, ever, for any reason.

Unfortunately, endless parsing over the definition of "torture" has been a prominent feature of this absurd and degrading national debate. It should be self-evident that a government has a right to confine persons only when they present a clear and demonstrated danger to others, as determined by lawful processes, whether they're domestic criminals or suspected international terrorists. Those persons should be confined as long as necessary (but no longer), in humane conditions, with adequate shelter, nutrition, medical care, recreation and freedom to observe their religious practices. Prisoners shouldn't be held incommunicado, and they have the right to communicate with family and friends—under supervision, if necessary to protect national security. And they should have a right to legal counsel. Any deviation from these minimal standards quickly becomes a form of abuse or torture.

The moral objections to torture, and the international legal prohibitions on it, are beyond the scope of this posting*. But we needn't look to international law for guidance. American jurisprudence has long recognized that torture and other forms of harsh interrogation can produce very unreliable results and violate both the letter and spirit of the Bill of Rights. This recognition predated the liberal decisions of the Warren court on criminal procedure (primarily made during the sixties) by several decades. So here's a quick stroll down memory lane, with highlights of some major Supreme Court decisions on torture and coerced confessions:

From Chambers v. Florida, 309 U.S. 227** (1940):
"The rack, the thumbscrew, the wheel, solitary confinement, protracted questioning and cross questioning, and other ingenious forms of entrapment of the helpless or unpopular had left their wake of mutilated bodies and shattered minds along the way to the cross, the guillotine, the stake and the hangman's noose. And they who have suffered most from secret and dictatorial proceedings have almost always been the poor, the ignorant, the numerically weak, the friendless, and the powerless."
From Watts v. Indiana, 338 U.S. 49 (1949):
"The requirement of specific charges, their proof beyond a reasonable doubt, the protection of the accused from confessions extorted through whatever form of police pressures, the right to a prompt hearing before a magistrate, the right to assistance of counsel, to be supplied by government when circumstances make it necessary, the duty to advise an accused of his constitutional rights—these are all characteristics of the accusatorial system and manifestations of its demands.

"Protracted, systematic and uncontrolled subjection of an accused to interrogation by the police for the purpose of eliciting disclosures or confessions is subversive of the accusatorial system. It is the inquisitorial system without its safeguards."
Here's Justice Douglas, concurring in Watts v. Indiana:
"Detention without arraignment is a time-honored method for keeping an accused under the exclusive control of the police. They can then operate at their leisure. The accused is wholly at their mercy. He is without the aid of counsel or friends; and he is denied the protection of the magistrate... The procedure breeds coerced confessions. It is the root of the evil. It is the procedure without which the inquisition could not flourish in the country.
And finally Justice Jackson, also concurring in Watts v. Indiana:
"Such treatment not only breaks the will to conceal or lie, but may even break the will to stand by the truth. Nor is it questioned that the same result can sometimes be achieved by threats, promises, or inducements, which torture the mind but put no scar on the body. I suppose no one would doubt that our Constitution and Bill of Rights, grounded in revolt against the arbitrary measures of George III and in the philosophy of the French Revolution, represent the maximum restrictions upon the power of organized society over the individual that are compatible with the maintenance of organized society itself. They were so intended and should be so interpreted." [My emphasis.]
Eleven years later, in Spano v. New York, 360 U.S. 315 (1959), the Supremes stated:
"The abhorrence of society to the use of involuntary confessions does not turn alone on their inherent untrustworthiness. It also turns on the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves..."

"Thus, in cases involving involuntary confessions, this Court enforces the strongly felt attitude of our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will. This insistence upon putting the government to the task of proving guilt by means other than inquisition was engendered by historical abuses which are quite familiar."
Ah, but I can hear the legions of parsers already: "These are decisions in criminal cases, where the issue was extracting evidence (like confessions) rather than information, and they involved U.S. citizens subject to ordinary constitutional protections and not suspected terrorists." To which I answer with a loud Bronx cheer. Torture and abusive detentions raise practical and (especially) moral questions that transcend narrow distinctions between citizens and noncitizens, and between criminal prosecutions and intelligence "inquisitions."***

Meanwhile, some 400 "detainees" languish at Guantanamo and others sit in secret CIA prisons in eastern Europe and elsewhere. Some of these prisoners have been in U.S. custody for five years, and some unknown percentage was clearly involved in activities that could be called "terrorist" or in armed opposition to U.S. forces in Afghanistan or elsewhere.

If any of these detainees had any information that was of value in 2001 or 2002, it has long since become obsolete. Terrorist and guerilla organizations have a cellular structure that's designed to limit the damage that would result from the capture or death of members of a given cell, including the leadership. These adjustments happen very quickly, out of necessity. [This beehive structure was clearly demonstrated in Battle of Algiers, the powerful 1966 film by Gillo Pontecorvo that was rediscovered by the Pentagon after September 11th.]

If any of the remaining prisoners represent a continuing danger to the U.S., the government should present evidence of that fact to justify their continued detention. Meanwhile, why do relatively few Americans object to the harsh treatment and extended confinement of these prisoners? Two reasons, I imagine. First, few people are willing to take the risk of releasing any prisoners if one or more of them may commit future terrorist acts. Second, there's a widespread assumption that they must all be guilty of something. If not, why are they being held?

Nonetheless, all persons held by the U.S. government have a due-process right to a hearing with basic protections that include the right to counsel, the right to confront the evidence against them and the right to an impartial magistrate.****If we persist in denying these fundamental rights, we have to ponder some very difficult implications for a self-proclaimed democracy: who are we as a people, and what are we becoming? Right now, despite some encouraging signs in Congress and the courts, the answers to those questions aren't at all clear.


*Wikipedia and other online sources have useful information about international legal standards that apply to torture. For example, see Wikipedia's articles on unlawful combatants, the Universal Declaration of Human Rights, torture and the U.N. Convention Against Torture. And also the American Bar Association article mentioned at the top of this posting.

**The citation "309 U.S. 227" refers to volume 309, page 227 of the United States Reports, which contain the full text of the Supreme Court decision. Finding it online is simple: just Google "309 U.S. 227" and you'll find numerous links (of which a few might require free registration).

***Nothing that I say is meant to preclude obtaining evidence or intelligence through noncoercive, voluntary interrogations. Is there a "bright line" that separates noncoercive from coercive questioning? Physical and mental abuse go over that line, including psychological tortures like sleep deprivation, freezing temperatures, various forms of humiliation (such as public nudity), mock execution, sensory deprivation and long-term solitary confinement without human contact (as in the Padilla case). The question is always: is this how we would want a fellow citizen to be treated in another country?

***The fact that some other governments, or terrorist groups, notoriously don't apply similar humanitarian standards in their treatment of American captives is no excuse for our own bad behavior, for all the reasons described by George Washington.


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