Inalienable rights, unacceptable wrongs

First, it bothers me that I feel the need to write this at all. I suppose the work of humanism is never done. You’d think that the issue of torture, what it is and why it is wrong in all cases, would have been laid to rest a few years ago, if not a century ago, but some people still seem to need reminding.

Torture, as defined by Merriam Webster: the infliction of intense pain (as from burning, crushing, or wounding) to punish, coerce, or afford sadistic pleasure. (from Latin tortus, past participle of torquēre to twist)

The United Nations Torture Convention of 1984 defines it as: "Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." Why the definition is restricted to public officials is beyond me.

The Inter-American Convention to Prevent and Punish Torture, a treaty among nations of the Organization of American States, is broader in its definition: For the purposes of this Convention, torture shall be understood to be any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose. Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish.

The treaty also notes that, “The fact of having acted under orders of a superior shall not provide exemption from the corresponding criminal liability.”

Also: “The existence of circumstances such as a state of war, threat of war, state of siege or of emergency, domestic disturbance or strife, suspension of constitutional guarantees, domestic political instability, or other public emergencies or disasters shall not be invoked or admitted as justification for the crime of torture. Neither the dangerous character of the detainee or prisoner, nor the lack of security of the prison establishment or penitentiary shall justify torture.” I should note that the U.S. is not a signatory to this treaty.

This definition makes sense. Torture can be gory and immediate, or subtle, long term, and mostly psychological. The definition is inherent in the act, not the victim, not the perpetrator, and not the situation. Pared down to its clinical extreme, torture could be defined as the deliberate application of aversive stimuli to degrade a person’s physical and/or mental state.

The two latter definitions I mentioned above also have clauses exempting incidental suffering resulting from lawful penalties such as imprisonment. Doing time for armed robbery is unpleasant, but it isn’t torture.

It is the understandably broad sweep of these definitions that makes former Attorney General Michael Mukasey’s evasiveness about waterboarding so vile. It also renders the present debate offensive. It is all torture, from the sleep deprivation and stress positions to waterboarding and worse. There are varying degrees of severity, but one standard of immorality.

Having laid out internationally accepted definitions of torture, I’d like to discuss why it is wrong in terms of its purpose and our constitution.

History has demonstrated the ineffectiveness of torture as a means to obtain accurate information. People under torture, or just the threat of torture, have confessed to a variety of things they never did, and have accused others similarly. The era of persecution of people for witchcraft, roughly 1480 to 1710, saw endless confessions of supernatural deeds, sexual intercourse with the devil, and the naming of innocent persons as accomplices. Military and intelligence service experts who have been studying and practicing interrogation for decades have declared repeatedly that coercive methods are not only ineffective but counterproductive in obtaining accurate information.

So if it doesn’t produce accurate information, then what is the purpose of torture? As I have written previously, it is a form of terrorism. Terrorism is the use of violence (or threat of violence) to induce fear in order to achieve a political goal. Torture is intended to become public, despite the pseudo-secrecy surrounding it. If the innocent suffer along with the guilty, it is all the more effective at suppressing opposition. And that is its primary function: making people afraid to oppose a government or political movement. It has a secondary function as well; eliciting false confessions to justify government actions. Frank Rich wrote recently in the New York Times about the Bush administration effort to connect Iraq with Al Qaeda, using torture when legitimate methods didn’t produce the desired results.

The use of torture strikes at the heart of our Bill of Rights. The fifth amendment to the constitution states, in part, “…nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law…” The framers of the constitution put in the clause against self incrimination particularly because of their abhorrence of torture. They were not far removed from the widespread use of torture in Europe, especially during religious conflicts. If defendants could be required to confess, then there would be an open invitation to coercion. Torture also circumvents our right to due process. The eighth amendment prohibition against cruel and unusual punishment would bar torture by itself, but torture is punishment before proof of guilt. Presumption of innocence and due process are principles vital to our judicial system, and torture annihilates them.

We have heard much quibbling about the status of detainees. Are they prisoners of war, or “unlawful combatants,” or just prisoners? This debate is irrelevant. The principles enumerated in the fifth and eighth amendments are not right because they are in the constitution. They are in the constitution because they are right. They were right yesterday, last year, a century ago, and before the Egyptians built pyramids. They are right in Guantanamo Bay, in Kabul, and down at your local police station. They are right for all 6.2 billion people on the planet, including those Guantanamo detainees and you.

That is why we need to prosecute torturers and all the people in the hierarchy who gave orders to the torturers. Torture is not new to this country, but in the past it had to be done off the books, with deniability for upper level personnel. The Bush administration was the first to try to justify the practice. The Yoo and Bybee memos were attempts to legitimize the unacceptable, to institutionalize the unconstitutional. It is not enough that they are out of power. Senator Leahy’s concept of a truth commission is inadequate. The Department of Justice under the Obama administration must drive the concept of legitimized torture into the ground and firmly reestablish the rule of law.

If we allow the constitution to be trampled and the torturers to go free, then who are we as a nation, really? A nation of laws, or of men? If we are a nation governed by the whims of those in power, and whose laws are enforced according to political expediency, then our conflict with despots and terrorists is one of tribalism, not principle. At this moment we are merely the Taliban with better plumbing. .