The Torture Debate in America by Karen J. Greenberg (Editor)

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Widely acclaimed as a publishing milestone, The Torture Papers (Cambridge, 2005) constitutes the definitive book of public record detailing the Bush Administration's policies on torture and political prisoners. In the process of assembling the documents, memoranda, and reports that comprise the material in The Torture Papers, a vital question arose: What was the rationale behind the Bush Administration's decision to condone the use of coercive techniques in the interrogation of detainees suspected of terrorist connections? The use of these techniques at Abu Ghraib and Guantanamo has sparked an intense debate in America. The Torture Debate in America captures the arguments on torture that have been put forth by legislators, human rights activists, and others. It raises the key moral, legal, and historical questions that have led to current considerations on the use of torture. Divided into three sections, the contributions cover all sides of the debate, from absolute prohibition of torture to its use as a viable option in the War on Terror.

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INTRODUCTION

The Rule of Law Finds Its Golem: Judicial Torture
Then and Now

Karen J. Greenberg

THE MATTER OF TORTURE AT THE HANDS OF AMERICANS HAS BEEN ON public display for more than a year now as this book of essays and documents goes to print. In this past year, 2004-2005, we have learned much. We have learned that, starting in 2002, the abuse of prisoners from Iraq, Afghanistan, and elsewhere took place at more than one American military prison; that ghost prisoners and ghost detention centers exist under American supervision; that the practice of rendition, sending prisoners to countries that torture, is practiced by the United States government; that the Bush administration supported a policy that narrowly defined torture and then declared abusive behavior permissible in the case of suspected terrorists, enemy combatants, and other detainees of the war on terror.

We have learned something else as well. We have learned that very few Americans are eager to engage in a debate about the revival of torture as an overt practice conducted in their name. Despite the appearance of pictures of abuse on television and in the print media, despite the publication of a wealth of documents and government reports attesting to the use of abusive, torturous methods, the public response has remained at best apathetic. It is not that Americans don't care about the introduction of torture into our language and our national identity, it is more that we are confused about how to address the issue. And in that respect, we have had very little guidance. Academic lawyers have conducted a policy debate among themselves, but the wider public has not been privy to the legal debate any more than it has been privy to some of the more thoughtful philosophical and ethical perspectives.

The essays in this volume present the debate that has belatedly but importantly taken place among intellectuals, policymakers, lawyers, journalists and others in the wake of the revelations of the "Torture Memos," previously published in The Torture Papers: The Road to Abu Ghraib.¹ Until now, this debate has taken place largely outside of the public view. Together, these pieces are meant to bring these arguments into the public consciousness, to open up to a wider audience learned considerations on what it means for a nation to know that torture is being conducted in its name. Amidst the myriad forms of ethical, moral, political, and strategic considerations, the authors included here have all asked themselves the question, what does the introduction of the fact of torture mean to the United States? Does it make us safer? Was the policy of granting the president unprecedented broad powers important even though it opened the door to the practice of torture? Are there long-term consequences to the use of torture? And finally, where do we as a nation want to go from here?

For some, the mere introduction of torture as an issue to be contemplated and debated has changed the nature of the American experiment; it has taken perhaps the ultimate taboo and made it part of the landscape, both theoretically and in practice. For many, the use of torture threatens to alter the very identity of Americans and their systems of values. David Luban considers the use of torture akin to the "unraveling of liberal ideology." Stephen Holmes takes it one step further: we have, despite ourselves, become our enemies. For others, it is a practice that, ultimately, may save us as a nation. Andrew McCarthy laments the fact that this is the moment to which we have arrived, but nevertheless, we cannot run and hide from a distasteful and dangerous reality.

Many of the essays focus on the Torture Memos themselves. They are concerned with the legal dimensions of the argument as it positions the United States internationally and domestically. Whether or not the United States should be bound by the prisoner of war protections of the Geneva Conventions in the post 9/11 years, the nature and extent of the power that accrued to the president in the wake of 9/11, and how to assess and understand the Torture Memos are central legal questions in the growing debate over the Bush administration's policy towards detainees from Afghanistan and Iraq. On the matter of the Geneva Conventions, the Bush administration concluded that the Geneva Conventions applied neither to the Taliban nor to al Qaeda. The former functioned within a failed state, the latter was a nonstate actor. Not everyone agrees with this conclusion however. Some, like William Taft, Ⅳ, who was legal advisor to the secretary of state, and David Bowker who worked for the Office of Legal Counsel (OLC) at the time, disagreed then as they disagree now. Others who worked at the OLC at the time the Torture Memos were written concur with the Bush administration's decision. David Rivkin and Lee Casey point out that there needs to be a rethinking of honoring reciprocity over treaties even when one party is not or does not consider itself to be reciprocally bound, especially now that the United States is engaged in asymmetric warfare. Dana Priest and Major Michael Dan Mori raise an alternative possibility, namely, the use of court martials. Priest maintains that the military would have liked to try the detainees rather than lock them up in unlimited detention without charges.

For still other contributors, torture is an unpleasant means to a necessary end. The authors in this volume consider each one of these issues, and more, in order to try and give readers a broad perspective on the need for change in the wake of 9/11. Heather MacDonald argues that coercive interrogation ultimately serves the nation well. Michael Dorf points out that the August 1, 2002 "Bybee Memo" - which defined torture as pain associated with "serious physical injury so severe that death, organ failure, or permanent damage" results - was revoked with the December 30, 2004 memo from Daniel Levin to James Comey, which declared that "torture is abhorrent both to American law and values" and leaves room for the authorization of torture when necessary. Deborah Pearlstein sums up the fundamental parameters of the debate surrounding torture. And Anthony Lewis points out that, bottom line, the decision to use torture is a decision that feeds power.

A final and more focused discussion that takes place in these pages is over questions of legal ethics and, in particular, how we as readers should assess the role which the lawyers in the Department of Justice played as advisors to the president and the secretary of state. The panel on "Torture: The Road to Abu Ghraib and Beyond"² that is printed here raises this question several times and from several different angles. Burt Neuborne defines the philosophical underpinnings of the legal context of torture. Joshua Dratel and Stephen Gillers point to the way in which the OLC lawyers behaved more as corporate lawyers than as public servants. Jeffrey Shapiro disagrees, arguing that in fact, the lawyer's job is to interpret the law with an eye towards wise policy and that in these circumstances, the lawyers behaved responsibly.

Many of the contributors to this volume have chosen to look back in time for answers, for guideposts, in an attempt to formulate a rational response to a situation that is overshadowed by the emotions of victimhood, anger, and the seeming loss of control in the post 9/11 era. The authors look in these pages to Vico, to Hobbes, to the Federalist Papers and to the basic theories of liberalism and war. Joyce Dubensky and Rachel Lavery point to the way in which religious canons - Christian, Jewish, Islamic, and others - have condoned torture. Scott Horton has described the crumbling of law under the National Socialist regime in Germany in the 1930s. Detlev Vagts and Richard Bilder consider the matter of accountability in Germany - as evidenced at Nuremberg, for example - as a backdrop for understanding the American policy of abuse. Michael Ratner turns from the past and explores the way forward through legal remedy and retrospective accountability. And Noah Feldman contributes a trenchant analysis of the philosophical, legal, political, and religious questions that underlie the essays in this volume.

The historical approach reminds us that torture has a subtle relationship to the rule of law; it is the unspoken realm of the forbidden, the unnamed that law represses. It is, in many ways, the ghost in the closet. And like the ghost's relative, the Golem, it always lies in wait to announce itself, unexpectedly, and with the express challenge to remove it before it spreads its destructive impulses too widely.

The numerous references to prior ages in which torture was utilized proves illuminating. Torture was used in Austria, Germany, Italy, Spain, England, and elsewhere, primarily during the 13th-17th centuries. It was used to elicit confessions and to punish those who had broken the law. Then as now, the definition of torture was broad-ranging. It included methods ranging from humiliation - as in the use of the public stocks - to death, which was the intended result of methods such as impalement, or the wheel to which one was tied until one died, or the saw on which one was placed upside down as a wide-toothed implement cut the body in half lengthwise starting between the legs. All of these methods ensured that the suspect would die a slow death. Sometimes, the intended result was merely to maim, as in the cutting out of one's tongue or the use of the "iron boot." Often, the intent was to instill the fear of death, as in the use of water torture. And sometimes, the purpose was merely to inflict intolerable pain, as in the use of thumbscrews, or the tying up of the body into different positions, actions which could result in maiming but which were not specifically intended to cause lasting physical damage.

However wide-ranging the types of torture, they shared a physicality. Torture was about harming the body and involved others to engage physically with the victim to cause that harm. As drawings from the time demonstrate, the medley of implements often required the attention of more than one attendant, particularly in the use of the rack or of other forms of tying a person up to inflict pain, or in flaying a body. The human contact itself conveyed an intimate bond between the tortured and the torturer, which the sounds of pain would have deepened.

A further extension of that physicality was the frequent involvement of a sexual dimension to the torture. Often, the charge itself involved a sexual crime, such as adultery. But the sexual nature of the punishment was present for charges of sexual as well as other criminal behavior. In medieval torture, bodies were often in a naked state. Given the prevalence of accused females, the female body parts were often the subject of the abuse, as in the use of pincers at her breasts, or the pear inside her vagina. For men, the pear was used to pierce through the body's anal openings.

Much of the rationale for medieval torture was religious. In addition to crimes of theft and murder, the accused was often considered guilty of heresy, or of violating the mores of the Christian religion, either by sexual or otherwise immoral behavior. The confession was important to the sanctity of one's soul, both that of the tortured and that of the torturer. The need for a confession was to serve justice, to complete the narrative that the accusation initiated, but justice was largely a reflection of religious doctrine. Before death, it was imperative to elicit the truth.

The imperative to fulfill the judicial narrative via torture attested to the tie between law and torture. Medieval torture was about eliciting information for convicting criminals; it was imperative to gain either two eyewitness accounts or a confession by the accused in order to convict a criminal. As a result, the law was present as a standard bearer. The jurisprudence of torture began in the 13th century and extended until the 18th century and was tied inextricably to the notion of proof. In Europe, the law of torture was reserved for capital crimes. Torture warrants in England and elsewhere relied on legal documentation, beginning with the issuing of a torture warrant, specifying the crime and the nature of the torture. The end result of the specified torture was to serve justice.³ The kinds of torture were often tied to legal proceedings. For example, evidence gained through water torture was then considered "torture lite" and as a result was valued particularly for not distorting the quality of the information introduced into court. Sometimes, not only the legal system but the authority of the state was given to justify the routine use of torture, as when sovereign authority decreed the need for torture as a customary practice of law.

The similarities across the ages are striking. Today, any American can open up his newspaper and find mention of similar methods of torture, from the infliction of pain to the causing of death. In fact, very little innovation has accompanied the newer methods of torture. Hooding, water torture, short-shackling, and anal and vaginal piercing are prevalent now as they were in the 15th century. Moreover, there is a strong emphasis now as then on sexual humiliation at the hands of interrogators. Today's interrogators smear menstrual blood on male Islamic prisoners and force detainees to wear women's underwear on their heads.

The general impetus to physicality is present today as well. As David Luban reminds us, it is a form of intimate human contact, the opposite of love and affection, but nonetheless an intense emotional entanglement. Beyond the intimacy, there is also the possibility that the appeal of physicality as an expression of anger may be a reaction to the excessively technological practice which modern warfare has become. Perhaps it is a form of longing for an aspect of war that disappeared with the first world war, the mano a mano, one on one, aspect of harm inflicted by one human being onto another. Perhaps the age of technology that we have in our midst has deprived our soldiers and others of the kind of physical release that anger and aggression, the basis of war, find necessary. Torture has without a doubt enabled the act of war to be personal again. Gone are the video game tactics, the explosions from afar, the need to find the satisfaction of conquest on a screen. Torture restores the screams of the victims, the faces of defeat and, albeit ironically and perversely, the human side of warfare. More than that, it tells us that human beings have the capacity for cruelty; it also may tell us that human beings on some very deep level reject the technology of our times and the degree to which it has, as the philosophers of the twentieth century warned, alienated humans from themselves. Torture, seen in this light, restores man to himself.

In thinking about the cycles in which torture appears and disappears, one is struck as much by its disappearance in the past as by its appearance today. Like the Golem, whom many would consign to the imaginations of superstitious times, so images of torture belong to an age before science and reason. Long considered a taboo for Western culture, the reintroduction of the word and the practice of torture has an eerie quality, as if it is returning a spectre from the past. Like the dangerously mystical Golem that is said to haunt Eastern Europe, hidden but reappearing to cause damage from time to time, torture appeared in Roman times, in Medieval times and has reasserted itself today.

The first modern thinkers, the philosophers upon whose ideas the modern state and the age of rights have been fashioned, equated the need for a more enlightened philosophy of rights with the need for the disappearance of both superstition and injustice, most notably torture. The Rule of Reason, the birth of notions of equality and justice, put the passions of men into restraint if not shame and provided a forum for the rationale and impersonal disposition of justice.

With even more precision and impact perhaps, developments in the legal sphere brought the practice of torture to an end. The movement toward a system of law and conviction which no longer required certainty but which rested content with the ability of the judge and/or jury to weigh the evidence and come to a reasonable rather than a certain conclusion brought to an end the need for torture. On the Continent, the law of proof standardized the need for evidence - gathering as opposed to confession as a means of establishing the legal record. In England, the emergence of the prosecutor similarly established the nature of evidence-gathering as a skill to be practiced in lieu of eliciting a confession.

It was, then, the legal process itself that contributed to a way out of the torture policies of yore. And for today's debate on torture, this is a significant point of reference. It was not just that liberal ideology could not tolerate torture; it was that the practice of law could not tolerate torture. Evidence-gathering, judicial standards, and the role of the prosecutor and the jury had made torture unnecessary and in turn were compromised by the fact of torture today. There is the sense that the legal debate has distracted us from the more important policy issues embedded in a torture policy, that the lawyers are splitting hairs rather than addressing the morally abhorrent nature of torture. But this is far from the case. If the history of the eradication of torture offers any example, it is that the abolition of torture is not just about moral outrage or concerns about the diminishing power of liberalism; it is rather a shift in the thinking of an age that enabled law to trump torture. Similarly for religion, as Dubensky and Lavery demonstrate, the universally acknowledged religious assertion is that "common humanity precludes torture." In the religious paradigm, it was the recognition of the shared human experience that led to the atrophy of violence and torture in the name of religion.

To some extent the reappearance of torture as a policy suggests that judicial torture was repressed rather than eradicated, that law exists together with torture in a dance between good and evil. Torture lurks beneath the law, waiting to see the light of day, never destroyed. The trauma of 9/11 seems to have reawakened the power of torture in contradistinction to the law. Similarly, in the religious context, the rebirth of torture indicates a return to a time when the shared humanity of mankind was not a determinative value - a return to a time when differences outweighed commonalities.

If history is our guide, then the dismissal of torture will rely on the discovery of a new way of thinking about our world, not one that is reactive but one that emerges over time, through thought, debate, and the adoption of new ways of understanding in an altered context. Because the Torture Memos were written in the fraternity-like secrecy of the OLC, the public and those professionals with the skills to think about such matters did not engage in a debate over the use of torture and its relationship to law and to the American national security agenda. The secrecy of these discussions led to a quick and violent form of behavior in the name of law. But it is not impossible that a sustained debate about law, values, and the efficacy of violence at the hands of the state would result not in a policy that condoned torture but in one that considered the nuance of current geopolitical circumstances and decided in favor of law, not torture.

In the establishment of the law of proof as a replacement for torture, there was in essence an intellectual paradigm shift that took place; individuals took uncertainty upon themselves. Instead of the "certainty" of confession, they came to value the ability of the judge and the jury to consider reasonable proof. They took it upon themselves to live with uncertainty, to trust their own judgment.

One of the more telling characteristics of the post 9/11 era is the lack of trust in the judgments of the courts and its officers. As the country has engaged in a war on terror, it has to a large extent emasculated and second-guessed its established judicial processes. To date, in the three and a half years following 9/11, there has been but one conviction on the charge of terrorism and insufficient cooperation between American government officials and foreign courts. Instead of civilian or military courts, the U.S. government has established secret military commissions. Along these lines, there has been no talk of bringing the leading terrorists that are in U.S. custody - Khalid Sheik Mohammed, Abu Zabaydeh, and Ramsi bin Al Shibh, for example - to trial. Torture is but one more sign of the possibility that we as a nation are forsaking the judicial system and its ability to effect justice though the trial system, which begins with the attempt to interrogate and find information.

Recent public discussions about the general dilemmas posed by the spectre of terrorism suggest what paradigmatic changes might have to occur to move to a more sophisticated argument for once again repressing torture. First, the judicial system and the American government and public will need to learn once again to trust itself even in the face of uncertainty. Caught off-guard on 9/11 and without the tools of knowing with certitude the players and practices of terrorists, the authorities understandably looked for ready, immediate means to their ends. But torture became the behavior of the flailing and inept. It was meant to find answers in a context where we had lost years of preparation. (By contrast, the European legal system, out of necessity, has been tracking and following terrorist cells for decades.)

A second paradigm shift that is required for a renewed dissociation from torture is a greater tolerance for long-term consequences. Again, the legal dilemma takes its cues from the larger context of the war on terror. Americans are stymied by the need to understand the war on terror as the effect of policies that may be remote in time. Rather than the immediacy of cause and effect, there is a distance between cause and effect. For example, if there has been a growth of new terrorist cells in Iraq and of terrorism worldwide in response to American policies in Iraq and its torture of innocent Muslims in Guantánamo and Abu Ghraib, then it is not an effect that will be felt immediately. Americans who opposed these policies often warn of long-term consequences, but this is a complicated way of thinking, one that, like the court process itself, defies certainty and calls instead for judgment.

Ultimately, what the practice of torture at American hands in the wake of 9/11 tells us is not that human beings are potentially evil, but that they are missing the trust in self, and the intellectual tools of analysis and understanding that lead easily to reason and the rule of law. Many of these essays struggle to find their way back to the law itself, and in so doing, they are a valuable contribution to the debate that must inevitably proceed a reengagement of law as nuanced rather than aggressive, healing rather than harmful, and aimed at peace not war.

In today's context, the use of torture may very well find some explanation in the past. Torture today is not used in an effort to achieve certainty; on the contrary, most experts agree that the information gained through torture is at best unreliable. But the use of torture may indeed reveal a lack of trust in the legal system itself. As medieval torture existed in a vacuum designed to replace the absolute knowledge of God, so contemporary torture looks for an arbiter that is larger than the abilities of human beings who sit in judgment. The war on terror and the prospect of an unknown enemy, viewed by public officials and the media as mythic and outside of known American experience, seems to call for a means of determining facts that supercedes the talents, skills, and professionalism of American lawyers, soldiers, and intelligence officers.

What is instructive here, then, is that the legal reasoning included in the essays in this volume, is important for reasons beyond the ethical responsibility of the OLC, beyond the powers of the executive, and beyond the role of military and covert intelligence agencies. Legal minds may very well be our way out of torture, but not due to moral arguments or to philosophical theorizing or to references to the Constitution. Rather, legal minds can move us forward to rediscovering a comfort with nuance, with uncertainty, and with the abilities of men to determine, without torture, the facts surrounding those who would endanger us as individuals and as a nation.

The documents included in this volume are of several types. They include those memos and pieces of discussion in Washington that occurred after the publication of The Torture Papers, among them the long awaited memos drafted in the spring of 2002 by William Taft, Ⅳ, one of the unsung heroes of this story.⁴ And last but not least, there is a document from the 1920s written by Roscoe Pound, Felix Frankfurter, and ten other legal minds of that era. In the "Report upon the Illegal Practices of the United States Department of Justice," these men consider what should be done when the Department of Justice overreacts in fear and, in their estimation, misreads the law.

All told, these essays and documents are intended to provide an essential piece of the picture of the United States today. As it confronts the age of terrorism in the years beyond the initial shock and anger of 9/11, the country is poised to consider what, if anything, it chooses to keep sacred as it goes forward. Though it is early yet to assess the full ramifications of the Bush administration's willingness to tinker with the law, it is not too early to begin at least to reflect upon ourselves and our behavior at this moment in time. One of the great lessons of history is that with whatever passion and sense of righteousness we may see ourselves and our choices today, we may at some future point in time, given new facts and subsequent events, see ourselves, our motives, and our judgments in a new light. This volume is intended to help us gain some insight into the nuances of today's public discourse and to provide us in the future with a window onto our time and ourselves.