Thursday, December 11, 2014

A Message on Torture from the U.S. Senate

by Professor Michael Meltsner, Northeastern University School of Law, Guest Editor

By this time readers of the Human Rights at Home Blog are generally familiar with the appalling details revealed by the Report of the Senate Select Committee on Intelligence. That the United States has engaged, to quote the text, in the “use of brutal interrogation techniques in violation of U.S. law, treaty obligations, and our values” is hardly news to those who have followed the nation’s reaction to 9/11, the terms of the Patriot Act, the creation of a prison at Guantanamo, the Abu Ghraib photographs, the John Yoo definition of torture, Vice President Cheney “Dark Side” comments, Defense Secretary Rumsfeld beliefs about forced standing, and the reports of a cadre of intrepid and courageous journalists, writers and pro bono lawyers, Jane Mayer and Stephen Oleskey to name just two of many,  as well as a few whistleblowers, who have documented the C.I.A.s and the military’s activities at Guantanamo, so called Black Sites around the world and countries used for their friendly surrogate security services by means of international rendition. Indeed, we engaged in what the Report calls “improper action” throughout “the war on terror” at least until President Obama issued an executive order on his second day in office (and for all we know we still do).  

 Of course, the remarkable research delivered in the 499 page “Executive Summary” (of a supposed 6,000 page document) provides enough provocative detail that (despite redactions) well justifies a careful reading (Warning: not for the faint of heart.) The media has largely focused on the question of whether torture (or whatever euphemism comes to mind) produces “actionable intelligence,” whether the C.I.A. lied to higher ups and Congress, and whether the Report will lead to some form of accountability. 

 Each of these, plus a number other issues that leap out from the Report’s conclusions are obviously worthy of serious debate, especially the way in which dubious legal interpretations were consistently employed to justify whatever horrific treatment was on the Agency’s agenda. But the big news for me in the long awaited and oft disputed publication of the Report is political. Just how will a nation that is split ideologically and pragmatically over most everything that matters in public policy react to official revelations that we crossed a moral threshold? Republicans, with the exception of John McCain and a few allies, seem to find release of the information worse than the conduct of the interrogators.  The former Bush officials and C.I.A. operatives who have chimed in to criticize have so far been short on facts, perhaps because Senate staffers craftily used the very language of Agency officers to make their case.  Senate Democrats rely on what the New York Times correctly calls the “meticulous detail” of the Report’s findings to convey its credibility but they have to deal with a President whose cautious response must reflect a government dependent on C.I.A. national security calculations.

 The key I think is not so much the next moves of government players but what happens in the country at large. So far the Jack Bauer narrative and “24” has made more of an impact on the nation than “Do onto others” or “what does becoming a torturer do to us?”   But the Report is bound to stimulate public debate and ultimately should reveal the extent to which Americans believe the end of a reduction in the fear of an enemy justifies means that are not only illegal but plainly lead to swelling the ranks of the enemy. The same inability to think about proportion that characterizes our (world leading) mass incarceration penal system has so far been evident. Does a felt necessity excuse behavior that in other circumstances would be condemned? If torture “works” does that make it ok? And what is the definition of what “works”? Perhaps we will find out. Perhaps not. The United States today is a nation without consensus on major issues and if the public does not demand limits in the long run there will be few remaining. Unless the nation can be read to support an end to the culture of torture, history suggests the C.I.A. or some other aspect of power will let the dust settle and then get on with it again. If you doubt me take a look at the Church Report or the story of Guatemala in the 1950s or the fate of Salvador Allende. Without a committed public, expediency rules. 


Michael Meltsner is the author of In Our Name: A Play of the Torture Years and The Making of a Civil Rights Lawyer. He is the Matthews Distinguished University Professor of Law at Northeastern University in Boston.

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