A New and Sad Chapter for Torture in the United States?

I have written previously on the moral and ethical abomination of torture practiced by American soldiers at the instance of their superiors and as a clear policy of the United States under the leadership of President George W. Bush and more particularly, Vice-President, Richard “Dick” Cheney and Bush’s first Defense Secretary, Donald Rumsfeld, during the first eight years of this century. Cheney and Rumsfeld especially, and certain officials of the Department of Justice, crafted a policy that resulted in Americans torturing captured members of other forces and (too often) innocents during the war with Iraq that resulted from U.S. invasion and occupation of that nation. Bush, Cheney and Rumsfeld are unrepentant concerning their support of torture during their tenure as national officials, despite the horrors that occurred at Abu Ghraib and elsewhere and much evidence later offered by the Defense Department that no intelligence of purport was gathered through such “enhanced interrogation techniques” (as the three men continue to describe torture).

Moreover, Cheney and Rumsfeld have continued stridently to call for America’s military and political leaders to pursue such policies despite the fact that they violate both international law and U.S. treaty obligations and make it more likely that American forces will be subjected to similar treatment when captured by hostile groups or armies. To his credit, President Obama moved swiftly on entering office to eliminate the Bush torture policy and practice and the U.S. Army revised its Field Manual to make crystal clear that American soldiers were in no event to practice such “techniques” in the future. Many journalists reported at the time that the President had the strong support of our country’s armed forces as he took action to abolish the Bush administration policy.

Among other things, the Bush-Cheney-Rumsfeld stance on torture highlighted the hypocrisy of a nation claiming to be founded on and to support the highest democratic ideals and strongly proselytizing for the same even as it broke its solemn treaty obligations and inflicted untold harm and death on a share of those it captured and held. Embracing torture raised the important question of whether democracies could practice such policies and maintain any standing and legitimacy whatsoever in the international community.

Just as significantly, America’s use of torture broached the vital concern of whether some practices are intrinsically evil and therefore simply off limits to a regime that would aver to value freedom as its cardinal aspiration. President Obama’s action has gone some distance in redressing the harms perpetrated by the prior administration under the guise of obtaining needed information to prosecute the “war on terror.” But it has hardly eliminated all such concerns, and claims for compensation resulting from alleged torture have continued to move forward in the federal courts. The unsettled character of this issue is neatly symbolized, too, by congressional unwillingness to close the “prison for terrorists” at America’s Guantánamo Bay Naval Base in Cuba and transfer its inmates to a location or locations on the U.S. mainland for trial.

For the record, here are two of the central provisions of the international Convention against Torture to which the U.S. is a signatory party. First, Article 14 of the Convention Against Torture states:

Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependents shall be entitled to compensation.

Second, Article 2 and Article 4 of the Convention note:

No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture … and Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person, which constitutes complicity or participation in torture.

A recent 8-3 ruling by the full United States Court of Appeals for the Seventh Circuit (Illinois, Indiana and Wisconsin) ignored these provisions in a finding against two U.S. citizens (civilians) who sought damages related to torture allegedly inflicted by American military forces. The judges contended that all such personnel are exempt from liability for breaching civilian’s rights and thereby disallowed damage claims against the federal officials, (in the case decided, Rumsfeld and others) responsible for such policies. In short, if individuals do not gain redress from military courts for such damages, they have no remedy now in federal courts to do so, at least in the Seventh Circuit. Somewhat unbelievably, given that Rumsfeld, a central architect of U.S. torture policies, was the target of the case, the Court argued dismissively that such suits would require time from Cabinet officials better spent on the nation’s affairs rather than defending themselves from such actions.

At least two points seem salient. First, if this expansive ruling stands, the nation can at best be said to be only in partial compliance with its international treaty obligations, since a part of the United States will clearly not be. Second and more deeply, America will once more have taken an ethically indefensible stand, in this case valuing administrative responsibilities above moral principle and human rights, and for no ready reason, in the present case, apart from the convenience of rights-transgressing officials. This stance makes no sense, even as a “balancing test,” against otherwise perfectly reasonable claims for administrative action and discretion. And it in principle enshrines the rights of U.S. officials to order the torture of American citizens who, unless they are somehow subject to military court jurisdiction, will have no recourse to seek redress. This is patently a moral as well as a legal misjudgment that one may hope will not stand. Meanwhile, the reputation of the United States regime as a beacon of human rights and freedom has once more been sullied by this choice.