Torturing Our History

The release of the Senate’s report on U.S. sanctioned torture prompts me to post this article that I wrote for Tikkun magazine some years ago:

THE 8TH AMENDMENT TO THE CONSTITUTION PROHIBITS CRUEL AND UNUSUAL punishment. Thanks to the founders (and especially to James Madison, who conjured the Bill of Rights), U.S. citizens need not fear judicially sanctioned impalements or being drawn-and-quartered in the public square ... at least not yet.

The framers were especially sensitive to the issue of torture, since they were living in its shadow. Benjamin Franklin was born in 1706-just fourteen years after the trials at Salem, where for the crime of refusing to plead either "guilty" or "not guilty" to the charge of witchcraft, one of the accused, Giles Cory, had been crushed to death beneath a series of increasingly heavy stones, dying slowly over the course of two days.

So if the founders were careful to build into our legal framework safeguards against self-incrimination, as well as the rights to confront one's accusers in open court, counsel, jury trial, and protection from being burned alive or torn apart on the rack, it was for good reason. The Dark Ages were not so far in the past.

Humane treatment of prisoners has deep roots in the United States, especially in wartime. During the War for Independence, enlisted men or captives lacking ransom value were frequently killed without tribunal on the field--regarded as the equivalent of insurgents by the English, who didn't recognize America as a sovereign nation or its soldiers as lawful adversaries. After capturing a thousand Hessian mercenaries at the battle of Trenton, George Washington vowed to behave better than the enemy and ordered his subordinates, "Treat them with humanity, and let them have no reason to Complain of our Copying the brutal example of the British Army," who were notorious for maltreating POWs aboard their prison ships, where more Americans died than on the battlefields.

The following year, John Adams, as chair of the Board of War and Ordnance, complained of hearing "continual accounts of the barbarities, the cruel murders in cold blood, even by the most tormenting ways of starving and freezing, committed by our enemies"--reports that left him harrowed. Adams abhorred every form of cruelty, even toward animals and still more toward defenseless inmates. The British excused their abuse as a matter of military policy. But in a letter to his wife Abigail, Adams resolved to exercise "Yankee virtue" toward prisoners in American hands. "Piety, humanity and honesty are the best policy," he advised.

What would the founders say of George Bush, whose contention that he can strip any citizen of constitutional protections, simply by the executive fiat of designating them enemy combatants, has now been overruled by the courts? As Madison wrote in the Federalist No. 47, "The accumulation of all powers, legislative, executive, and Federalist judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."

Despite the President's insistence that our country "doesn't torture," hundreds held in Iraq, Afghanistan and at Guantanamo have died or been abused in U.S. custody, with fresh revelations pouring forth. Typical was the testimony of Murat Kurnaz, a former Gitmo inmate, who told Congress in May of 2008 not only of being punched in the stomach while his head was held under water, but also being shackled by his arms to the ceiling of an airplane hangar, shocked with electric prods, and subjected to temperature extremes. The ends--gathering information--are said to justify the means.

That's what the authorities argued in Massachusetts, when Giles Cory was crushed. Around 1688, children near the town of Boston began behaving strangely, experiencing fits. A respected physician concluded that "nothing but an hellish Witchcraft could be the Original of these Maladies." Then, as now, extreme measures were needed to resist the plague and, naturally, confessions flowed under duress. The finger-pointing didn't end until the judges themselves were in danger of going to the gallows.

Torture produces falsehoods--from consorting in midnight covens to participation in terrorist plots. And if Americans resort to thumbscrews, what's to stop our foes from doing likewise? As revolutionary patriot Thomas Paine reasoned in his Dissertation on First Principles of Government, "He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself."

The founding fathers' opposition to torture became established military doctrine under Abraham Lincoln, who in 1863 signed the first articles codifying the laws of war. The 157 rules contained in Lincoln's "General Orders No. 100" were crafted by the legal scholar Francis Lieber of Columbia University. With two sons in Union ranks and his eldest boy enlisted in the South, Lieber wanted to ensure decent treatment for detainees, whatever their uniform. So Article 16 of what became known as the Lieber Code affirmed that "Military necessity does not admit of cruelty--that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions." Lincoln's enlightened policy became a model for other European nations and ultimately for the Geneva Conventions.

Toward the end of his life, Thomas Jefferson predicted the dawn of a more civilized age, envisioning a generation "as much wiser than we have been as we than our fathers were, and they than the burners of witches." How can we even be debating the propriety of torture in this day? The question that ought to be discussed is, who should be held accountable? In a message to the nation delivered during the War of 1812, President Madison called torture an "outrage against the laws of honorable war and against the feelings sacred to humanity." Our history has been hijacked--the latest case of extraordinary rendition.