Divided On Torture: How to build a public consensus for the moral treatment of detainees

This year marks the second anniversary of President Barack Obama’s executive order reversing U.S. policies regarding detainees captured in armed conflict. Presidential Order 13491 set minimal standards for the treatment and interrogation of captured individuals, required the Central Intelligence Agency to close any detention facilities it was operating and guaranteed that the International Committee of the Red Cross would have timely access to all detainees in U.S. custody.

Although Mr. Obama’s order was welcomed by critics of the administration of George W. Bush, questions about America’s long-term policy on torture remain. Another president could issue a new executive order that overturns the Obama policy. A presidential executive order is nonstatutory; it does not entail a change in the law but is an executive decision that can be reversed by a successor. Future presidents may find themselves under pressure to change policies because the United States has yet to establish a moral consensus regarding detainee treatment and the inappropriateness of torture.

In his recently published memoir Decision Points, President Bush admitted that he personally authorized the waterboarding of Khaled Sheikh Mohammed, a key figure in the Al Qaeda network. Despite abundant evidence at the time that waterboarding was morally condemned and legally prohibited (including the historical fact that the United States charged Japanese military figures with war crimes precisely for waterboarding during World War II), Mr. Bush’s admission caused little subsequent outcry.

During a televised interview on NBC on Nov. 9, 2010, Matt Lauer asked the former president, “Why is waterboarding legal, in your opinion?” Mr. Bush replied, “Because the lawyers said it was legal.” If the Bush administration was able to skirt or simply violate treaties and legislation that prohibit torture and the cruel and inhumane treatment of detainees, what assurance is there that the abuse of human beings in custody will not happen again? How can one deal with the fact that the United States adopted as government policy methods of interrogation that violated norms against the inhumane treatment of detainees and, in at least some cases, rose to the level of torture? What can be done to prevent the nation’s return to such methods in the future?

What Should Citizens Do?

Some critics of Mr. Bush’s administration called for criminal prosecution of those who were involved in the formulation and carrying out of abuse of detainees. Upon taking office, President Obama demonstrated little interest in pursuing this strategy. His decision was a disappointment to some, who discussed the feasibility and the wisdom of pursuing prosecution. In time, as the nation became engrossed in the economic recession, that debate seemed to quiet down. It was revived briefly a few months later when Attorney General Eric Holder released previously secret memos of the Office of Legal Counsel that revealed the reasoning behind the Bush detainee policy and details of its enactment. Calls for prosecution were drowned out again by the arguments over economic policy and health care reform.

Holding civilian and military leaders accountable for misdeeds can be an effective way to deter future wrongdoing. Yet any criminal prosecution would face daunting challenges. Public officials would take legal cover in the memos of the Office of Legal Counsel, and C.I.A. interrogators would cite the retroactive immunity granted in 2006 by Congress. And the option of criminal prosecution has gathered little support from the general population.

Eschewing prosecution, however, should not mean abandoning all other measures to avoid a recurrence of activity that brought great shame to the nation and served as a public relations and recruitment bonanza for its enemies. Three alternative options have been proposed by various public figures.

One possibility is to do nothing. Some critics of the Bush-era policies maintain that history’s judgment is sufficient: Let the shame of an evil legacy be the final word for the proponents of torture. Yet this approach overlooks the need to establish firmly a national commitment opposing torture and the cruel treatment of detainees, a commitment that is not evident at present.

A second option is to call for a bipartisan Congressional investigation. The existing climate in Washington, however, makes this unlikely. A deeply partisan legislature would split along predictable lines in any examination of the previous administration’s record. All polling data suggest that an overwhelming majority of Americans hold Congress in very low esteem. Whatever comes out of a Congressional study would not be trusted by many citizens.

There is, however, a third option: A panel, made up of respected individuals who are not identified with highly partisan politics, could hold hearings, gather evidence and produce a study that helps educate the nation about torture and U.S. policy. Retired federal judges, diplomats and military officers could be candidates for such a panel. Perhaps religious and educational leaders might also serve. The panel should be empowered to subpoena and to grant immunity to witnesses. It should have the authority and clearance to examine all relevant documents as well as the necessary staffing and budget to conduct its work expeditiously yet thoroughly.

The priority of the panel would be to seek the truth as to what happened in the treatment of detainees and to make this information widely known. Since a major part of the goal is to educate the citizenry and work toward a moral consensus on the subject of torture, it is vital that the panel’s work be as transparent and accessible as possible. There should be televised public hearings of key testimony and discussion. The panel might submit recommendations for future action based on its findings, such as the reform of the Office of Legal Counsel, revised methods for Congressional oversight of our intelligence operations or new training programs for individuals serving as interrogators.

The panel’s main task, though, would be to foster an informed moral discussion about torture and the cruel and inhumane treatment of detainees. Without a strong majority of citizens who support a clear ban on these activities, our national leaders may find themselves someday in a setting similar to that of the days immediately after 9/11, a period Drew Christiansen, S.J., aptly described as “a time of moral panic” (Am., 10/2/06) In such an anxious and insecure climate, the temptation to engage in actions that are unworthy of a nation founded on basic rights will be strong.

A Public Moral Consensus

Critics of the Bush administration may prefer to place blame at the highest levels of government and at the feet of C.I.A. and military operatives. Waterboarding and other abuses against human dignity, however, were publicly revealed to have happened in May 2004. Five months later, in November 2004, 62 million Americans voted to re-elect George W. Bush, even though torture had been reported in the media during the spring and summer prior to the general election. The record also suggests that Congressional leaders in both parties and from both houses attended briefings about C.I.A. practices and raised no serious objection at the time. Perhaps out of fear of appearing soft on terrorism, there was precious little public dissent by national leaders regarding U.S. treatment of detainees.

The crucial issue that opponents of torture must face is not what political leaders think but a lingering sense among the citizenry that torture can be necessary for national security and is therefore defensible. We as a nation need to build a moral consensus within the culture against torture. It will not be an easy task.

In numerous surveys conducted since 2004, the Pew Research Center has asked Americans about the use of torture on terrorists in order to gain important intelligence information. The surveys have varied little in their results. About half of respondents say torture could be justified “often” or at least “sometimes.” A slightly smaller percentage respond that torture could be justified “rarely” or “never.” Other polls by various news organizations like CNN or The Washington Post have similarly found a roughly 50-50 split in public opinion on this question. Even the opposition to torture is fragile, because those who think torture can “rarely” be used are likely to weaken if ever there is another major terrorist attack on American soil.

The Pew Center surveys also show that more than half of American Catholics support the use of torture and that this support correlates positively with more frequent church attendance. (Also revealed in the Pew survey: Catholic Republicans are far more willing to approve torture than are Catholic Democrats.) Opposition to torture within the Catholic moral tradition is founded upon the theological claim that all persons possess an inalienable dignity as a result of being created in the image and likeness of God. Respect for the human dignity of all persons is the bedrock for much of Catholic ethical reasoning, and torture is judged to be a direct assault upon that dignity. Hence the church’s teaching, as expressed in the Compendium of the Social Doctrine of the Church, that the “prohibition against torture” is a principle that “cannot be contravened under any circumstances.” To understand that claim and to encourage Catholic citizens to oppose torture, the U.S. bishops approved a study guide, Torture Is a Moral Issue (2006).

Confronting Ourselves

The nation’s political leaders cannot be expected to withstand the pressure to torture suspected terrorists if a majority of the citizenry endorses the use of torture in order to gain information. Torture must be brought into the public forum where society can confront it. Prime Minister Georges Clemenceau of France remarked, “War is too important to be left to the generals.” One might offer a parallel that “torture is too important to be left to the interrogators.”

For the sake of the national conscience, we Americans must learn what our nation did after the terrorist attacks on Sept. 11, 2001, why it was done and whether it was indeed “necessary.” There are large holes in our public knowledge of how torture came to be practiced by our government, how it was implemented and whether it produced anything of import. Did some actors go beyond what even the Office of Legal Counsel approved? How much did the Congressional leadership know and when? Is it true, as the C.I.A.’s own inspector general reported, that there was no clear evidence that crucial intelligence was obtained by the “enhanced interrogation” techniques? In sum, there is much to learn from a thorough investigation and honest report to the public.

Despite the constant criticism of politicians, the fact is that citizens usually elect public officials who reflect the broad currents of the American mainstream. It is imperative, therefore, that as a people we establish a moral consensus that will condemn unworthy acts done in our name and support political leaders who will oppose terrorists without transgressing our moral convictions.

Sidebar: 18th-Century Reforms

The first great popular movement to abolish torture occurred during the 18th century on the European continent. In 1764 the Jesuit-educated Italian humanist Cesare Beccaria wrote a short book, On Crimes and Punishments, which examined the system of criminal law. In particular, Beccaria advocated the abolition of the death penalty and of torture as part of legal proceedings. Translated into several languages, the book helped set off movements that removed torture within the criminal justice system. At the outset of the 1700s every European country allowed torture in its criminal law code; by the end of the century no European country did.

The abolition of torture affected the legal system, but it did not end the use of torture in other circumstances. The 19th and 20th centuries continued to see torture employed during times of revolution and war. While international treaties and national legislation ban torture today, these legal instruments are frequently violated, often with the tacit or explicit consent of leaders and citizens who believe national security to be at stake. In the 21st century what is needed is a popular will to extend the abolition of torture from criminal law to all state activity.

Listen to an interview with Kenneth R. Himes.

This article appears in April 18 2011.