No longer can we say torture is a practice reserved for the most brutal and callous regimes of human history; the practitioners of this grotesque and macabre technique now include the likes of a constitutional liberal democracy. I am, of course, referring to the Bush administration’s use of torture on detainees being held in the Guantanamo Bay internment camp in Cuba. There is no longer any doubt that torture was an interrogation technique—or perhaps just a sadistic pastime activity—used against so-called “enemy combatants,” some as young as 15, under the auspices and approval of the highest echelons of the Bush administration. A technique most commonly practiced by tyrants and despots, the use of torture has left an indelible mark on America’s global and moral standing.
Memos released by the Obama administration have showed us the extent to which these interrogation techniques were used—one suspect was waterboarded some 183 times within a month. One favorite argument of the contrarians, though, is that waterboarding does not constitute torture. However, if we take the definition of torture provided by the United Nations’ 1984 Convention Against Torture, then we easily see that waterboarding constitutes torture under international law. Just about every expert and authority who has spoken on the matter has confirmed this. (The reason is because waterboarding simulates death by drowning, can cause sever physical pain, and can result in death.) Furthermore, if we take the definition provided by U.S. law (18 United States Code Title 18, §2340), we again see that waterboarding is categorically impermissible under U.S. law. Likewise, this has been confirmed by several American government institutions, including the State Department, the Justice Department, the Department of Defense, the Supreme Court, the Congress, the Pentagon, the CIA, the FBI, and the military. One notable exemption to this list was the Bush White House.
After admitting waterboarding is torture, another argument used by the contrarians is that “you cannot play fair with an unfair enemy.” This is a rubbish argument based on the fallacy that two wrongs make a right. It is the idea that you can somehow justify a reprehensible action by pointing to another wrong action. Of course, this goes against our idea of moral universalism, which says that what is wrong for others must also be wrong for us. “Those who do not rise to the minimal moral level of applying to themselves the standards they apply to others—more stringent ones, in fact—plainly cannot be taken seriously when they speak of appropriateness of response; or of right and wrong, good and evil,” asserts Noam Chomsky. So, I ask, since when has it been OK to mimic the despots of Nazi Germany under Hitler, communist Russia under Stalin, communist Cambodia under Pol Pot, military-ruled Chile under Pinochet, or secular Iraq under Saddam? Do they represent the ideals we strive for, or were these people not the very enemies of America we sought to destroy? I wonder how these contrarians reconcile with the idea that they justify going to war under the pretense these people’s inhumanity but support their own government in doing the same.
The final argument the contrarians pose after they realize that waterboarding is both inherently wrong and illegal is that it produces life-saving results. The facts say otherwise. Not only does the vast academic, medical, and legal literature on the subject dispel the myth that “torture works,” but we also know now that even in these specific instances it did not work. Some of them might to point to a foiled plot to attack the Library Tower in L.A., despite the fact the plot was thwarted long before any interrogation even took place. Moreover, Ali Soufan, the FBI interrogator who interrogated Abu Zubaydah, stated recently that all the useful information was extracted from him prior to his torture. The contrarians, naturally, ignore this fact because it evinces the point that experts and research have been making for a long time now. Not only does it not work, it undermines our efforts to combat terrorism. But we should ask ourselves, even if we do assume their argument that torture works, would their decidedly utilitarian approach be justified? Surprisingly, Hollywood was able to produce a profoundly true dialog on torture that remains relevant even today. What we can be sure of is that if we accept the utilitarian approach, we would also have to accept the most heinous and monstrous crimes against humanity if doing so saves more lives than it ends. Most people simply are not ready to accept that burden, and rightly so.
Now, however, we’ve been hearing that the Obama administration won’t be prosecuting those responsible for carrying out and approving the torture. This is a grave mistake. We must hold those responsible accountable for their actions, as with any crime. That is the role of the Executive. After all, we have prosecuted those responsible for waterboarding in the past (Yukio Asano and Edwin Glenn, e.g.). Teddy Roosevelt, typically considered an American icon, took a decidedly opposite approach in dealing with those who waterboarded insurgents in the Philippines: “The president desires to know in the fullest and most circumstantial manner all the facts, nothing being concealed and no man for any reason favored or shielded. For the very reason that the president intends to back up the Army in the heartiest fashion in every lawful and legitimate method of doing its work; he also intends to see that the most vigorous care is exercised to detect and prevent any cruelty or brutality and that men who are guilty thereof are punished. Great as the provocation has been in dealing with foes who habitually resort to treachery, murder and torture against our men, nothing can justify or will be held to justify the use of torture or inhuman conduct of any kind on the part of the American Army.”
As I’ve stated earlier, here and elsewhere, universality is a critically important principle. U.S. Justice Robert Jackson made a point of this at the Nuremberg Trials, at which he was the chief of counsel for the prosecution. He stated: “If certain acts of violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them. And we are not prepared to lay down the rule of criminal conduct against others which we would not be willing to have invoked against us. We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.” Though people would like to think otherwise and like to claim saying so is shockingly anti-American and unpatriotic, we too have drank from that poisoned chalice. War crimes of this magnitude simply cannot go unpunished. Justice Jackson correctly pointed out that not prosecuting future crimes against humanity would render the Nuremberg Trials farcical. We cannot let that happen.
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