Monday, May 04, 2009


A recent interview done with former Attorneys General John Ashcroft and Alberto Gonzales brought forth some interesting details about the debate of the use of torture during the Bush Administration.

As reported by the New York Times, both Ashcroft and Gonzales danced around whether or not the enhanced interrogation technique called Water boarding was torture and in-fact illegal. Quoted Gonzales: "I think that the U.S. government provided advice to CIA interrogators based upon the best legal reasoning by the lawyers in the Department of Justice. Was it torture, when that advice was given? No. Were the interrogations harsh? Yes. Did they save lives? Absolutely."

Ashcroft followed with a somewhat vacillating defense by saying: "the word water boarding can be defined in a lot of ways." He added that "I don't think they got it wrong. It's different now ... Because the law has been changed."

This is one instance of many regarding torture that has been discussed for years and years now, both in the context of political campaigns and in the colder more analytical legal discussions that have occurred.

So what are the real answers? Is Water boarding torture? Does the United States torture (both officially and unofficially)? Well, the best I can find out is this: It depends on who you are asking.

According to former President Bush and current President Obama, the United States does NOT torture. According to some members of congress we do. According some of the usual talking head commentariat we do and it's wrong, dead wrong. Conveniently, some of the usual talking head commentariat acknowledge that we do and it's justified and correct to do if we save lives.

Acknowledged legal minds such as law professor Alan Dershowitz has gone so far to justify torture in certain circumstances. While other just as laudable as Constitutional law professor Johnathan Turley have said exactly the opposite.

To be sure, this point has been argued for hundreds if not thousands of years. Some practitioners of torture believe it yields valuable information that could save lives, while others who have practiced torture have come away denying it's value.

Two people we wouldn't necessarily put in the same room with regard to ideas about democracy and justice come together basically with the same conclusion:

Emperor Napoleon Bonaparte - ruler of France from 1804-1815 wrote to Major-General Berthier in 1798 that "the barbarous custom of whipping men suspected of having important secrets to reveal must be abolished. It has always been recognized that this method of interrogation, by putting men to the torture, is useless. The wretches say whatever comes into their heads and whatever they think one wants to believe. Consequently, the Commander-in-Chief forbids the use of a method which is contrary to reason and humanity."

General George Washington, commander of US Continental Army and 1st President of the United States of America - “Should any American soldier be so base and infamous as to injure any [prisoner]. . . I do most earnestly enjoin you to bring him to such severe and exemplary punishment as the enormity of the crime may require. Should it extend to death itself, it will not be disproportional to its guilt at such a time and in such a cause… for by such conduct they bring shame, disgrace and ruin to themselves and their country.” - George Washington, charge to the Northern Expeditionary Force, Sept. 14, 1775

Many subsequent American leaders, whether presidents or generals have had the same view. The following excerpt from the great blog "" shows just a few of our leaders and their decisions with respect to treatment of prisoners and torture.

President Abraham Lincoln instituted the first formal code of conduct for the humane treatment of prisoners of war in 1863. Lincoln's order forbade any form of torture or cruelty, and it became the model for the 1929 Geneva Convention. Dwight Eisenhower made a point to guarantee exemplary treatment to German POWs in World War II, and Gen. Douglas McArthur ordered application of the Geneva Convention during the Korean War, even though the U.S. was not yet a signatory. In the Vietnam War, the United States extended the convention's protection to Viet Cong prisoners even though the law did not technically require it.

So, it's a conflicted question in that we have an emotional desire to protect ourselves and our kids. Who wouldn't want to be able to use every means necessary if we knew it would protect our families? If one of my children had been kidnapped by say some gang-bangers or drug dealers or anyone for that matter and I had one of their members or friend in custody and they knew where my child was would personally torture them until they told me. I would do it. I would cut off every one of their fingers until I found out where my kid was. I think most people feel that way. However, even by doing this, it still doesn't guarantee my child will be safe. I might find them only to discover they were already dead. And that, I think is the rub. The torture provides me with no real guarantee of my end-stated desire: The protection of my children.

If we go beyond the personal and think about it from the state's perspective, we can apply those same emotional feelings towards trying to protect against another 9/11 or a sub-way bombing in Madrid or London. However, the same result occurs. We have no guarantees as to a positive result. In fact, many learned scholars of this that say exactly otherwise. As described in this excellent piece from the VetVoice that torture is "sub-optimal" and doesn't yield the results. Here's an excerpt from Major Matthew's article:

"Torture or inhumane treatment, even in isolated cases, such as in the case of Khalid Sheikh Mohammad, is not worth the price. The integrity of our country is more important than any singular terrorist attack, even if it costs American lives. We must come to understand that the measure of our country is not in lives or resources, it is in the validity of our ideas of liberty and justice. We cannot sacrifice those values, even to stop a terrorist attack because if we do, then we allow the Islamic extremists to achieve one of their major goals - to defeat the idea of freedom. Yes, I said the idea, because that's what's important. "

So, scholars, practitioners, politicians, the general public all have a diverse opinion about whether torture is useful or legal.

In my opinion, torture is simply torture. As long as there are other avenues to achieve the same result, this is a method that is repugnant to our ideals and dangerous in the long-run in that it brings more people to the cause we are fighting than to our side.

The legality of torture in my opinion is not questioned. No, I'm not talking about the Geneva Convention treaties that we signed and that have the force of law. Don't believe me? Well, just see how many trips outside this country the former members of the Bush Administration take in the future. No, I'm talking about United States Law. US Code: Title 18 section 2340 expressly defines and prohibits the use of torture by anyone in the United States or by anyone from the United States using these acts in other jurisdictions. Here is the entire citation:

Laws: Cases and Codes : U.S. Code : Title 18 : Section 2340
Title 18 U.S. Code Document Library Legal Dictionary Legal News FindLaw Guide LawCrawler Web US Gov Sites Mailing List Archives Sup Court 1893+ US Fed Circuits US Constitution
United States Code
U.S. Code as of: 01/19/04 Section 2340. Definitions As used in this chapter -
(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; and
(3) "United States" includes all areas under the jurisdiction
of the United States including any of the places described in
sections 5 and 7 of this title and section 46501(2) of title 49.

Section 2340A. Torture (a) Offense. - Whoever outside the United States commits or
attempts to commit torture shall be fined under this title or
imprisoned not more than 20 years, or both, and if death results to
any person from conduct prohibited by this subsection, shall be
punished by death or imprisoned for any term of years or for life.
(b) Jurisdiction. - There is jurisdiction over the activity
prohibited in subsection (a) if -
(1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States,
irrespective of the nationality of the victim or alleged
(c) Conspiracy. - A person who conspires to commit an offense
under this section shall be subject to the same penalties (other
than the penalty of death) as the penalties prescribed for the
offense, the commission of which was the object of the conspiracy.

Section 2340B. Exclusive remedies Nothing in this chapter shall be construed as precluding the
application of State or local laws on the same subject, nor shall
anything in this chapter be construed as creating any substantive
or procedural right enforceable by law by any party in any civil

The link for the citation above is:

There it is: torture is against the law. We practiced torture as officially sanctioned techniques during the Bush Administration's tenure and perhaps we did so in other, previous administrations. More disconcertingly, we may still be doing it.

So now, the question brothers and sisters is what do we do about it? I think we Stop it. Investigate it. Prosecute it. And I'm not talking about sending some private from a prisoner camp to jail. I'm talking about Cheney, Rumsfeld, Rice, and any Democrat who sanctioned this use. I think it is the only way to close this ugly chapter of our history and start down the path to redemption. If this was too repugnant for Washington and Lincoln, why is it o.k. for us?

Tell me what you think,