Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.


Torture, Ethics, and the Law


Steven E. Meyer

12-22-2014


By Steven E. Meyer

December 22, 2014

 

Earlier this month, the Senate Intelligence Committee published the results of a five-year long investigation of interrogation programs employed by the CIA during the years immediately after September 11, 2001. The report is more than 6,700 pages long, and while most of it is classified, the executive summary—which is itself over 500 pages--is unclassified. The report paints a detailed, grizzly, often disturbing picture of what the program’s detractors call “torture” and its supporters describe as “enhanced interrogation techniques” (EIT).

Two major issues divide the proponents and opponents of the interrogation programs. First, has any useful actionable intelligence been received as the result of these programs? Second, were these programs really torture or were they truly EIT? Both issues have shaped up to be a zero sum game, with neither side willing to concede ground to the other on either.

With respect to the first point, while it is clear that actionable intelligence was derived from the CIA’s programs, it is unclear whether that intelligence prevented another major attack as many proponents argue. The intelligence that was secured did point to additional participants in terrorism activities, but there were no major breakthroughs. It is also highly probable that the terrorist suspects being subjected to the programs often provided false intelligence simply to make the pain stop. Opponents of the CIA’s techniques argue that traditional interrogation methods were just as successful as the harsh measures that were used.  Both sides have a point, but it’s a point that will never be resolved.

Perhaps the second point —were these programs torture or EIT and does it make a difference-- is more germane. While it is a point that will never be resolved to everyone’s satisfaction, it should be the crux of the issue for all of us, and especially for Christians. Deep ethical (moral) and legal issues are involved, not only related to the programs themselves, but to the actions of the US government to justify them. 

One commentator recently said that we should go right up to the line of torture, but not go over it. But what exactly does this mean and is it even possible to construct such a difference? The Bush administration’s attempts to do just that amounted to little more than a justification for action to do anything that was born of the fury of the moment. And the CIA does not bear sole culpability for these programs; members of the Bush administration and members of the Congress at the time need to come to grips with the issue. Many of the same members of Congress who now are criticizing the Bush administration’s actions were aware that the programs were operational. Top-level leaders may not have known the intimate details, but they certainly were aware that highly questionable practices were in play.

Very early in the campaign to establish the interrogation programs, the CIA General Counsel said he could not determine the legality of the actions and demurred to the Department of Justice (DOJ). DOJ unequivocally determined that the measures were legal because they did not constitute torture. But this was rhetorical tautology: DOJ ruled legal what it had a vested interest in ruling legal, which was to provide cover for the programs that the administration supported.   However, the decision also was made that EIT could not be conducted in the United States because they were inconsistent with the Eighth Amendment to the Constitution. As a result, the CIA—with administration backing--established a series of “black sites” in Europe and Asia where terrorism suspects could be forced to talk without fear of constitutional intrusion.  

But the legal issue extended beyond the US Constitution. In 1984, President Reagan signed the UN Convention Against Torture and pushed hard for its acceptance by the American public and Congress. It was ratified by the Senate in 1994 and forbids “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for purposes as obtaining…information or a confession.” (Art. I, para 1) Once ratified, this international agreement became part of US law. In effect, the UN Convention Against Torture is an extension of the Geneva Protocols of 1949 and several of its Additional Protocols, which also prohibit torture and to which the United States is a signatory.

There is no question that protection of the country and its citizens are a high priority and a primary responsibility of government. But in doing so, the ends do not justify the means. In the aftermath of the 9/11 attacks, we were governed by fear, anger, and angst—a perfect combination to justify lashing out harshly and deliberately with everything we had. We were not concerned with carefully thinking through strategy, action, and morality. The expediency of the state does not justify torture, and adopting the mantra EIT is little more than a cynical attempt to circumvent a plethora of legal precedents and, more importantly, fundamental ethical standards. Ethical standards undergird the law on this issue and if we as Christians do not speak loudly and clearly to the issue of torture, we stand in danger of selling our souls.

 

-       Steven E. Meyer is a former intelligence professional and a Fellow with the Center for Public Justice.

 



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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”