Torture: A Case of Government Failures

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The Report of The Constitution Project’s Task Force on Detainee Treatment“, recently released, took two years to research and write. The team that produced it made every effort to be unbiased and thorough. This report will become an important benchmark for subsequent events concerning the use of torture by the U.S. government even though reports, critical commentary and entire academic articles on the U.S. use of torture have been circulating for over 10 years, including on LRC.

This is a long period of government crime and abuse during which ample public debate occurred, but nothing was done through the justice system to stop it. Even today, nothing has been done officially to bring the perpetrators and law-breakers to justice. The regime of torture and the failure to clean it up after it became known indicate a double failure of government. First government abrogated rights, and then it failed to clean house. There is a third failure, which is the non-existence of institutions to prevent the recurrence of torture. There is a fourth failure, which is the inception of the even worse practice of targeted assassinations, even of American citizens.

After September 11, 2001, President Bush authorized torture. The first finding of the report is unequivocal that the U.S. used torture:

“U.S. forces, in many instances used interrogation techniques on detainees that constitute torture. American personnel conducted an even larger number of interrogations that involved ‘cruel, inhuman, or degrading” treatment. Both categories of actions violate U.S. laws and international treaties. Such conduct was directly counter to values of the Constitution and our nation.”

Even more tersely,

“Perhaps the most important or notable finding of this panel is that it is indisputable that the United States engaged in the practice of torture.”

Within days after taking office, President Obama issued executive orders stopping torture. He declined to bring to justice those responsible for torture during the Bush regime. Undoubtedly, that would have meant building a case against Bush and other high officials in the Bush administration.

The Convention Against Torture and the Geneva Conventions outlaw torture, but the U.S. Office of Legal Counsel in 2007 found that the CIA’s torture techniques complied with these conventions. These memos and rulings have been suspended under Obama. However, the report notes (p. 334)

“Obama’s executive orders…could be rescinded on the first day of any new president’s term – and this could be done without public notice.”

Referring to the 2007 memos and rulings, it adds

“But there is no institutional barrier to future OLC attorneys adopting their legal reasoning.”

In other words, the government’s officials can start up a torture program or end one at their will, without being subject to any lawful sanctions and control mechanisms that are in place as part and parcel of the relations between society and its government.

The torture policy of President Bush was ended by President Obama, but he decided not to investigate and prosecute Bush and the other officials who were responsible for that policy. He doesn’t have to because there is no institutional mechanism steering him to do so. Congress has not acted either. There is a great reluctance to use impeachment proceedings, which would paralyze the executive branch if they were used every time that executive officials break laws.

There is no institutional mechanism that stopped Bush from starting up a torture policy, and there is, in addition, no institutional mechanism to make Obama investigate and prosecute Bush et al for starting up a torture policy that broke U.S. laws. It should be mentioned, as does the Report, that the Clinton administration, well before September 11, began the practice of capturing detainees and imprisoning them with “foreign governments known to abuse people in their custody.”

The existing U.S. government fails in numerous respects. The torture episode illustrates a central failure, which is an incapacity to control the actions of the executive branch. If a president can order torture and no one can stop him or hold him accountable, he is eliminating the rights of detainees. Kidnapping detainees and isolating them for indeterminate periods does the same thing. Obama has taken these rights violations to the extreme. He has made it a policy to kill (assassinate) selected Americans whom he deems enemies of the people.

These developments must be accounted as extremely serious blows to the idea of human rights and to the idea that any government has an obligation to protect human rights. To destroy rights as a matter of the highest policy shows a government that has failed to meet its most basic obligation. In addition, when there is no corrective mechanism in place to rectify these violations and attempt justice, this shows another government failure.

Why has this happened? I believe that the basic reason is a deterioration in the moral or ethical idea of law, a switch from natural to positive law (explained below) that has eroded and undermined the idea of constrained and limited government. The result has been an expansion in the power of government, but not in its legitimate authority based in natural law.

This situation has been a long time in the making. The U.S. government began to exhibit failures a long time ago. The so-called American Civil War (1861-1865) is the largest instance in the 19th century. In that case, the southern states exercised the right to declare their independence. The northern states suppressed them by force. This was a clear case of government failure, and it meant that government thereafter rested on force, not on an adherence to protecting rights. A government resting on force rather than right reason and rights protection could then in subsequent decades alter the nation’s currency unconstitutionally and pass any number of laws that invade property rights.

Let’s explore this a bit more.

Morally, modern government is based on a simple proposition, which is that what the government makes and calls “law” is law. This proposition entails that when government makes law, this law is right and just by virtue of the government making it a law. The term used to describe this idea of law is positive law. Under this idea, government confers rights upon its citizens. Government decides what rights are or are not. It decides on their extent. The North decided what the rights of the South would be to form their own government. It decided the South didn’t have such a right.

The opposing idea is that law rests on a moral and ethical basis that describes in general terms what is good and just objectively. This law exists prior to and independently of any government. Its origins are elsewhere. The associated ideas of government are that every person in the society, including the government officials, should obey this law; and, what is more, among the government’s purposes is to administer justice under this law. The term used to describe this idea of law is natural law. Under this idea, rights pre-exist government, their basis being something other than government, like God, or right reason, or the inherent nature of man and society. The natural law is stable and durable, not subject to fashions, whims, emotions, interests, and factions. It is not based, as is positive law, on pragmatism or utilitarian calculations and expectations, but its adoption and use may still result in a healthier and progressive society than the latter.

In modern societies, positive law is ascendant. Natural law is down but not out. In some ways, natural law constrains positive law-making and keeps it within bounds of right reason. Man-made laws, when the lawmakers find it convenient, are justified in moral natural law terms. For example, Obama has recently spoken out against chemical weapons being used in Syria:

“Obviously, horrific as it is when mortars are being fired on civilians and people are being indiscriminately killed, to use potential weapons of mass destruction on civilian populations crosses another line with respect to international norms and international law. And that is going to be a game-changer.”

In this statement, there is a mixture of appeals to positive law and natural law and they overlap to some extent. The natural law says that in war it is not right to target and kill civilians not directly involved in the war. Obama uses the term “indiscriminately” to indicate that this is wrong by natural law, and the same reference to natural law is indicated by the term “weapons of mass destruction”. He refers to international norms, and this too has the ring of natural law. International law may refer to either positive law or natural law or a mix.

Obama’s statement on Syria is mainly an appeal to natural law, but he is inconsistent in his adherence to natural law within his province, which is America. In the case of torture, he has failed to move against Bush. He has failed to enforce either the natural law or the laws and treaties that Bush broke.

I quote from the report on torture referenced earlier:

“The events examined in this report are unprecedented in U.S. history. In the course of the nation’s many previous conflicts, there is little doubt that some U.S. personnel committed brutal acts against captives, as have armies and governments throughout history.

“But there is no evidence there had ever before been the kind of considered and detailed discussions that occurred after September 11, directly involving a president and his top advisers on the wisdom, propriety and legality of inflicting pain and torment on some detainees in our custody.

“Despite this extraordinary aspect, the Obama administration declined, as a matter of policy, to undertake or commission an official study of what happened, saying it was unproductive to ‘look backwards’ rather than forward.”

In passing I should mention that the Task Force refers several times to its adherence to the “rule of law”. Do the members mean the rule of positive law or the rule of natural law? This is unclear, and this to some extent weakens the impact of their report. In my opinion, if going back to natural law and understanding why this is a good idea is what is called for, then the phrase should be “rule of natural law”.

“The second notable conclusion of the Task Force is that the nation’s highest officials bear some responsibility for allowing and contributing to the spread of torture.”

Actually, the nation’s highest officials have committed war crimes over the course of the last three presidents at least. There is no institutional mechanism that has brought them to justice because the Congress has been complicit in the government’s crimes. The role of Congress cannot be over-emphasized. This indicates another whole level of government failure.

Another government failure raised in the Task Force report, and it too has been circulating for years in the alternative media, is the harsh treatment of whistle-blowers (p. 349):

“The Obama administration has also criminally prosecuted more individuals under the Espionage Act for providing classified information to the press than all other presidential administrations combined.”

The failure here comes under the heading of secrecy in government. Government withholds information on its activities. It suppresses photographs that might galvanize the public. It releases information selectively so as to control public opinion.

The government is now largely a creature of positive law, of very large scope whose limits are hazy and easily pierced depending on “exigent circumstances”. Words such as “emergency” are now the basis of law, rather than what is right and just. This means that the law can become almost anything. This means that government has become an institution whose laws and controls spread uncertainty, disorder, injustice, rights violations and insecurity.

The failures of government that are pointed to by examining the use of torture by the U.S. government are longstanding and endemic. They are failures of accountability and control. They are failures of institutions that function to make government uphold natural law. In the final analysis, they are failures of Americans to understand and hold dear liberty and justice.

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