by Rebecca Gordon*
Witness Against Torture: Detainees, Forward. Photo by Justin Norman. CC BY-NC-SA 2.0 via shriekingtree Flickr.
The 2016 presidential campaign has put torture back on the American agenda. Donald Trump and Ted Cruz are campaigning on promises to bring it back, and even Marco Rubio hinted in that direction. (Of course torture never left the Secure Housing Units of US prisons, where it is hidden in plain sight.) The post–Vietnam War consensus that torture is wrong—at least when US citizens are directly involved—has well and truly broken down. Torture has now become mainstream.
The ethics and efficacy of torture are once again up for national debate, if by “debate” one means pronouncements such as Donald Trump’s guarantee made to a cheering crowd at a November 2015 rally in Columbus, Ohio. “Would I approve waterboarding?” he asked. “You bet your ass I would—in a heartbeat,” and he said he “would approve more than that,” because “it works, okay? It works.” Marco Rubio promises captured “terrorists” what he calls a “one-way ticket to Guantanamo Bay, Cuba, [where] we are going to find out everything they know.” Not to be outdone by Trump or Rubio, during a recent Republican debate, Ted Cruz offered his explanation for why waterboarding is not torture, in a mangled reference to an infamous John Yoo-Jay Bybee memo dating from the George W. Bush era. “Under the law,” Cruz explained, “torture is excruciating pain that is equivalent to losing organs and systems, so under the definition of torture, [waterboarding] … does not meet the generally recognized definition of torture.”
Of course Cruz is wrong. In fact, US federal criminal code Section 2340 describes torture as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering … upon another person within his custody or physical control.” The UN Convention against Torture (which the United States ratified in 1994, making it a part of US federal law) employs similar language. To count as torture, the victim’s suffering need not, as the memo actually reads, “be equivalent to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” You can, in fact, torture someone without killing him.
While it is disturbing, it is not surprising to hear Ted Cruz trumpeting his willingness to embrace torture, given the competition he faces in the primaries. What is more disturbing is that this once-discredited Bush administration definition of torture should still be a common feature of ordinary discourse on the subject. (Even Bush & Co. “withdrew” this bit of legal counsel once it found its way into public view in 2004, replacing it with a kindler, gentler memo. If it had been the Nixon administration, I suppose they’d have said that the original memo was now “inoperative.”)
Why are we still debating whether or not torture is illegal and wrong?
I would argue that it is in large part because the people who wrote those memos, and the ones who designed and implemented the Bush-Cheney torture programs, have enjoyed complete impunity. It’s ironic, in a way, that Cruz made reference to the Yoo-Bybee memo, which was addressed to Bush’s then counsel to the president. That document’s original purpose was to offer legal reassurance that no one in the CIA or Department of Defense would face prosecution for torture under Section 2340. Most of the memo’s body concerns the arguments “a defendant” might make, if charged with the crime of torture.
In fact, many of the Bush-era memos about torture reveal a primary concern, not with the requirements of the law, but with the exigencies of ass-covering. For example, in 2003, the CIA’s general counsel, Scott Muller, issued a memo “for the record,” detailing a long list of high-ranking officials who had signed off on “enhanced interrogation techniques,” including then Attorney General John Ashcroft, Assistant Attorney General in Charge of the Criminal Division Deborah J. Daniels, National Security Adviser Condoleezza Rice, Counsel to the President Alberto Gonzales, Counsel to the National Security Adviser, Counsel to the Vice President David Addington, and the General Counsel to the Department of Defense William J. “Jim” Haynes II.
As late as 2005, John Rizzo, who served in various posts as legal counsel for the CIA, repeatedly asked the Justice Department for reassurance that the agency’s use of “enhanced interrogation techniques” was not prosecutable. Steven Bradbury, who was then principal deputy attorney general, gave Rizzo the answer he was hoping for, in a memo dated May 10: “In sum,” Bradbury wrote, “… none of these specific techniques, considered individually, would violate the prohibitions in Sections 2340-2340A.”
None of these high officials, nor their ultimate bosses, Dick Cheney and George W. Bush, has been held accountable. Indeed, President Obama signaled clearly that this would not happen, when at the beginning of his first term, he stated that in regards to possible crimes committed in the so-called war on terror, “We need to look forward as opposed to looking backwards.” When mounting pressure finally shook loose a redacted 500-page summary of the Senate Intelligence Committee’s mammoth report on CIA torture, Obama reprised this refrain even as he admitted in 2014 that “we tortured some folks.” He advised those who read the summary “not to feel too sanctimonious in retrospect about the tough job those [CIA] folks had,” adding that “a lot of those folks were working hard under enormous pressure and are real patriots.”
No one above the level of lieutenant has been held accountable for past torture. One result of this impunity is that many more Americans believe in the rightness and efficacy of torture today than did 20 years ago. A 2015 Pew Research Center poll of citizens in 38 nations showed that the “US public is among the most likely to consider torture justifiable: 58% say this, while only 37% disagree. There are only five nations in the survey where larger shares of the public believe torture against suspected terrorists can be justified: Uganda (78%), Lebanon (72%), Israel (62%), Kenya (62%) and Nigeria (61%).” No wonder so few voices have been raised to protest the Republicans’ promises to bring torture back.
Alberto Mora, who raised red flags about torture as early as 2002 and who resigned his post as General Counsel to the Navy in 2006, makes this point most eloquently in a recent Los Angeles Times piece. I leave a few last words to him: “Our failure to hold ourselves accountable drains the crime of torture of its proper gravity, serves to encourage those (like Trump, Rubio and Cruz) who wish to use it again, and helps explain why being pro-torture is no longer stigmatized.”
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*Rebecca Gordon teaches in the Philosophy department at the University of San Francisco. She is the author of Mainstreaming Torture: Ethical Approaches in the Post-9/11 United States (Oxford University Press, 2014) and American Nuremberg: The U.S. Officials Who Should Stand Trial for Post-9/11 War Crimes (Hot Books, 2016).
Rebecca Gordon, “Torture, It’s Back in Fashion.” Social Justice blog, 03/23/2016. © Social Justice 2016