The Two-Front Battle Over Torture | Harper's Magazine

Sign in to access Harper’s Magazine

Need to create a login? Want to change your email address or password? Forgot your password?

  1. Sign in to Customer Care using your account number or postal address.
  2. Select Email/Password Information.
  3. Enter your new information and click on Save My Changes.

Locked out of your account? Get help here.

Subscribers can find additional help here.

Not a subscriber? Subscribe today!

Get Access to Print and Digital for $23.99.
Subscribe for Full Access
Get Access to Print and Digital for $23.99.
[No Comment]

The Two-Front Battle Over Torture


Hollywood’s Challenge
Three and a half years after Abu Ghraib, the struggle over the Administration’s torture policies continues to be fought, both in Washington, and in millions of homes around the country, on the television.
Today when Americans turn to the issue of torture, we focus on a debate in the halls of Congress, and on events which have transpired in Bagram, Abu Ghraib, Camp Cropper, Guantánamo and a dozen “blacksites” the exact location of which remains a mystery. But torture is more than an aspect of what President Bush calls “the program,” it is also an infection working its way through our popular culture. Scenes and images of sadistic torture have proliferated in television. I don’t mean news programs describing the debate and the techniques used. I mean programming which purports to be entertainment.
The big offender is one particular network, the same one which floods the airwaves with softcore pornography in the guise of reporting which “condemns” it. And the single program which has done the most to champion torture is “24,” an adrenaline-packed show in which torture occurs every day.

Now in American popular culture, torture used to be something that was done by the Nazis, by the Soviets and Chinese in the Cold War. Americans were its victims, always standing steadfast against the evil that it embodied. But in the Fox Network vision of torture, Americans use it, they do so for patriotic purposes—to save thousands from attacks which would occur were torture not used—and, wondrous to relate, torture always works. So torture is now the favorite tool of the good guys.
There is absolutely nothing coincidental about this. As Jane Mayer revealed in her article “Whatever It Takes,” published earlier this year in the New Yorker, this plot thread has been quite consciously crafted by Fox as a little boost for their friends in the White House. Dick Cheney and David Addington needed some help overcoming 230 years of American culture, starting with George Washington. Before George W. Bush, American presidents had been consistent in saying that torture was wrong and that America would never use it. So Fox sprang to their aid. Two centuries of American history went down the rat hole. And in its place: Enter Jack Bauer, the all-American hero. He tortures with gusto, and he saves the American people at least a couple of times every season. Torture is an indispensable part of his act. The series also gives us a new enemy. We have, of course, the vaguely Middle Eastern Islamic terrorist, the current Hollywood staple figure. But now we also have the naïve liberals who oppose torture and whose attitudes will cost thousands of lives if they aren’t checked. America’s security demands that we keep these people away from Congress and Government; if they have their way, and torture is banned again, thousands of innocent Americans will die.

The False Choice
What’s missing from these accounts? For one thing the fact that the ticking-bomb scenario upon which they build has never occurred in the entirety of human history. It’s a malicious fiction. For another the fact that torture, when applied, seems very likely to produce false intelligence upon which we rely to our own detriment. Ask Colin Powell. He delivered a key presentation to the Security Council in which he made the case for war against Iraq. The keystone of Powell’s presentation turned on evidence taken from a man named al-Libi who was tortured and said that Iraq was busily at work on an WMD program. This information, of course, was totally wrong. Al-Libi fabricated it because he knew this is just what the interrogators wanted to hear, and by saying it, they would stop torturing. It was a perfect demonstration of the tendency of torture to contaminate the intelligence gathering process with bogus data. And for Powell, it was “the most embarrassing day of my life.”

And still, this is just the beginning. Generations of Americans have fought and sacrificed to build a system of alliances around the world that provide our security bulwark. What has happened to those alliances? In country after country—including many of the nations which have historically been our tightest allies–our government’s approval level is within the margin of error. That’s right. The percentage approving may actually be zero. In nation after nation and even among our own allies, we are outstripped by the world’s last Stalinist power, China. This is a very heavy price, and most of it has to do with torture policy.

And the weightiest link in this chain tied around our national neck should be considered last. As my friend Mark Danner writes, if you assembled a team of Madison Avenue’s most brilliant thinkers in a room and asked them to concoct a recruitment plan for al Qaeda and its allies, we’d never come anywhere close to the one that the Bush Administration delivered up to them with the torture program. It’s the major reason why today, six years after the start of the war on terror, al Qaeda is back up to the strength it had on 9/11, and the Taliban has also been able to regroup and recharge, destabilizing a friendly government in Afghanistan.

I believe that torture is a moral issue and must be resolved on that basis. But even if we were to examine it on a purely utilitarian basis–No one can look at this cost-benefit analysis and think it is even a remotely close call. The results of the torture policy have been catastrophic and have dramatically undermined our national security. But don’t expect to get even the briefest suggestion of that out of Hollywood.

And the coming season, delayed by the writer’s strike, promises to go another step. The new menace to national security, it appears, is in the Congress, which is about to tie Jack Bauer’s hands and stop him from saving America. The mask has fallen off of Fox. It is committed to a very narrowly defined political vision. Recent disclosures have made clear that Fox is lined up to support one specific Republican candidate–the most aggressive advocate of torture on the American political stage today.

My point here is simple: the battle over torture is being fought not just in the halls of Congress, but in every living room. And that supposedly “liberal” Hollywood is the most effective tool in the arsenal of the torture lobby.

What Is Torture?
When I say “torture,” I mean to refer to a series of techniques that are part of a program of highly coercive interrogation techniques which the Bush Administration introduced in 2002, and continues to use up to this day. There are roughly a dozen known techniques, but there are five I focus on: waterboarding, long-time standing, hypothermia, the use of psychotropic drugs and sleep deprivation in excess of two days. Before the arrival of George W. Bush, the U.S. had no problem saying each of these techniques was torture. In fact, we did so regularly.

Although the techniques were used from 2002, the issue arrived on stage in the U.S. only in the spring of 2004, after the publication of photographs from Abu Ghraib and then, still more importantly, the leaking and publication of a series of secret memoranda from within the Government that made clear that the sadistic practices in Abu Ghraib had in fact been reviewed and authorized by the U.S. Government at the highest levels.
Since the controversy arose, there have been a series of skirmishes with indecisive results. The one major loss suffered by the White House was Congress’s clear decision that the U.S. military would not be involved in the “program.” That, by the way, occurred because the senior echelons of the uniformed services very aggressively demanded it, staging a modest rebellion against the White House in the process. The peak was in the fall of 2006, when the senior military lawyers went before Congress and, under oath, testified against the White House and its proposed legislation on Military Commissions.

Today, however, the White House insists that the Program has been authorized for the CIA, but Congress insists that it has not. This battle has been fought on several levels, most importantly on the appointments level: Congress has refused to confirm appointees who will not testify that the Program—or at least the specific techniques I identified before–is illegal.
The nomination of Michael Mukasey was another watershed event in this process. I’ve known Michael Mukasey for 20 years and have worked with him. I respect him tremendously and hope he’ll be a great attorney general. But the course charted by his nomination shows that we have some serious problems ahead of us.

The Torture Litmus Test
A few weeks before his first meeting with the Senate Judiciary Committee, Michael Mukasey’s Justice Department handlers arranged a private meeting for him with a number of “movement conservatives.” This was done at the insistence of the White House. Two different administration sources have described the meeting to me. During the meeting, Mukasey’s counterparts, largely figures associated with the Federalist Society, pushed him on two points in particular.

First, they wanted him to undertake that he would not appoint a special prosecutor to look into the U.S. attorneys scandal and related charges concerning political prosecutions. At this point it is clear that if an independent investigation were to be launched, it would quickly run head-on into some of the same figures who sat in the room with Mukasey. The email traffic which has surfaced already—and it is only a tiny fraction of the total—shows how Rove and Miers relied up a small number of key Federalist Society figures to help them out in addressing recalcitrant U.S. Attorneys who would not debase their office by converting it into a political tool. There was therefore a very unseemly aspect to this meeting. The first request they put to Mukasey appears to have been designed to protect themselves and keep their behind-the-scenes involvement with the Justice Department’s highest profile scandal so far out of the spotlight.

And second, they pushed aggressively on the torture question. They wanted Mukasey to pledge that he would toe the Administration’s line on “the Program,” that he would continue to protect those who authored the program with the cloak of an Attorney General opinion keeping them safe from prosecution.

We don’t know how Mukasey answered these overtures. But when he got to the second day of hearings, he gave answers that were extremely unsettling. When pressed on the legality of waterboarding, for instance, he gave a series of highly evasive responses—essentially refusing to answer the question.

From this hearing and a series of pieces published shortly thereafter in the New York Times and Wall Street Journal it emerged that the Bush Administration has developed a new litmus test for its new appointees in the legal arena: they must be prepared to embrace the Program and attest to its legality.

There has been no shortage of litmus tests in the past. They are usually tied to hot button issues developed in the election campaign: abortion, gay marriage or flag desecration, for instance. But notice how none of these traditional lightening rod issues played a role with the Mukasey nomination. It revolved almost entirely around torture.

Waterboarding as Torture
There is also a fiction that the Administration and its media friends are spreading to support it. It’s unclear whether waterboarding is torture, they say. That is, quite simply, a lie. Waterboarding is torture and has been understood to be torture in a formal sense by American legal authorities for over a hundred years. Soldiers who used it were court-martialed, and the attempted defense of military necessity was smacked down by the Army’s Judge Advocate General in 1903. Others who used it were prosecuted, and some executed at the end of World War II. Indeed, even the Supreme Court of Mississippi—neither then nor today a bastion of liberalism—announced that waterboarding was criminal torture in an opinion in 1926. Ambiguous? Unclear? Absolutely not.

So why is the Administration so concerned about the waterboarding issue? Why has supporting waterboarding become an article of political faith for them? The answer to that question is pretty simple: criminal liability of senior Administration officials involved in the decision to use it. I do not believe that the interrogators—the people at the end of the chain—face serious criminal liability, and in any event they are not the most culpable individuals. Those who face probable eventual indictment and prosecution are the policymakers who pushed torture through as a secret policy—Dick Cheney, David Addington, John Yoo, Donald Rumsfeld, Jim Haynes, and a handful of others. Nothing Congress did has given them any serious argument of immunity. They are therefore fanatically concerned about having cover from the nation’s senior-most prosecutor, the attorney general.

The New York Times says the issue is one of legal culpability of those who have administered the program. They’re pointing in the right general direction, but their focus is off a bit. The CIA personnel, military personnel and contractors are not, I think, likely to be prosecuted. But there is a class of persons who are probably not immunized in any effective way by the current statutes, namely the administration officials who authored this scheme. They are the figures “on the line” who are most adamant that Mukasey (or any substitute for Mukasey) provide them with the protection they feel they need.

Hence, the debate around Michael Mukasey has really ceased to be about Michael Mukasey and his qualifications to serve as attorney general. It has become a debate about the torture issue. The Administration prevailed, yet again, in this confrontation, and Mukasey is now serving as attorney general.

In the end, Mukasey was confirmed because of one man: Chuck Schumer. Schumer moved forward with a Solomonic solution: approve Mukasey and deal with waterboarding by passing new legislation specifically prohibiting it. Diane Feinstein jumped on board. And those two votes put Mukasey over the top.

Chuck Schumer’s Compromise
The compromise that Schumer and Feinstein grasped for: let’s pass new legislation that makes it clear that waterboarding is unlawful. What could be easier?

This sounds perfectly reasonable. But it isn’t. First, George W. Bush is the man at the end of the chain of individuals who authorized waterboarding, and the man whose reputation (or what’s left of it) hangs in the balance on this issue. He has staked out the position that the “program” is lawful. He will veto any legislation that “clarifies” the situation on waterboarding. So no legislative effort to outlaw waterboarding is likely to clear Congress and gather the president’s signature. A failed effort will be cited as proof that Congress recognizes that waterboarding is lawful, and that the efforts to outlaw it failed. That flies in the face of the nation’s most fundamental values, and it mocks our commitment to be a nation in which no man is above the law.

Second, the major object of this maneuver is to stake out the position that the waterboarding that the Bush Administration actually undertook was perfectly lawful when it was done. That would of course come as some surprise to the people who were prosecuted and punished (and in some cases, executed) for this crime at the hands of American prosecutors. It would also demonstrate to the world that America views waterboarding as a heinous crime justifying the ultimate sanction when others do it to Americans, but something that the American president can authorize at his whim when it suits him to do so. This is not staking out a position of moral leadership in the world, but of moral depravity.
The Schumer-Feinstein approach offers a pragmatic political solution: lay off the Bush Administration over this issue. Give them a pass.
But some issues must be beyond the realm of partisan political give and take, and this is one. To allow it to become a matter of partisan compromise undermines and cheapens our state and the principles on which it rests.

The Road Up From Torture
We need to remember the road our nation and our ancestors traveled in reaching the prohibition against torture. For hundreds of years, torture was an accepted, perfectly ordinary practice—a part of the justice system. The genius of the English law was to circumscribe, to limit it. By the time of the Tudor monarchs, only the monarch or a judge could authorize torture, and its use was carefully tracked and recorded.
But with the arrival of the age of religious conflict—roughly the mid-sixteenth through the mid-seventeenth century—its use surged once more. It was applied against whoever failed to subscribe to the state faith: against dissenters, against Calvinists, but especially against Catholics, who were the community then most under suspicion of harboring, collaborating with and being terrorists. Prominent Catholics were routinely arrested and questioned to find out who they knew and with whom they met, and a meeting with the wrong sorts could provide an opportunity for an appointment with the rack or even the executioner.

We shouldn’t think the controversy about torture was purely a matter for the lawyers and politicians. It was in the end an issue in which the community of the faithful played a decisive role.

John Donne’s Role
And one man merits a pause and acknowledgement in this process. His name is John Donne. We know Donne today of course as a poet, the author of powerful metaphysical verse. But Donne was a clergyman, in fact the dean of St Paul’s in London, the first church in the land. He came from a prominent Catholic family which faced terrible persecution in the time of religious turmoil. Members of his family were imprisoned, beaten and at least one—his brother Henry–was cruelly tortured, using the implements of the day. Donne, choosing the path of least resistance, became an Anglican.

But he felt very bitterly about torture. He saw in it an evil rotting away in the core of his society. It was an intrinsic evil, which could never be justified. Several of his poems refer to “torture,” most importantly “Love’s Exchange.” Most of the Donne scholarship sees “torture” as it appears in this poem as a metaphor, the agony of unrequited love. In my view this is a misreading. It is a deadly earnest poem and Donne is, in fact, referring to torture just as it was practiced in the late Elizabethan, early Stuart period. He writes, in the most jarring language to appear in any Donne sonnet:

To future Rebells; If th’ unborne
Must learne, by my being cut up, and torne:
Kill and dissect me, Love; for this
Torture against thine owne end is,
Rack’t carcasses make ill Anatomies.

Donne’s message here couldn’t be clearer: torture is not an effective tool. It stokes the passion and anger of the opponent. But more importantly, “torture against thine owne end is,” it is a mortal sin.

And with time, Donne grew braver in his criticism. In the last week of March 1625, King James I died, and his son Charles succeeded him to the throne. The king’s men let it be known that he was looking for a new minister at Whitehall, and that the post might be Donne’s. His sermons were being observed. Donne decided he had the audience he wanted, and on Easter Sunday, April 17, 1625—the most important day of the liturgical year for a preacher–Donne delivered what must be reckoned one of his greatest sermons. It was against the abomination of torture. The practices of torture, he said, were an intrinsic evil and always wrong. He did not criticize the king directly, but he assailed the king’s judges who issued torture warrants, saying that by doing so they revealed not strength but weakness. He said:

They therefore oppose God in his purpose of dignifying the body of man, first who violate, and mangle this body, which is the organ in which God breathes, and they also which pollute and defile this body, in which Christ Jesus is apparelled; and they likewise who prophane this body, which is the Holy Ghost, and the high Priest, inhabits, and consecrates.

Transgressors that put God’s organ out of tune, that discompose and tear the body of man with violence, are those inhuman persecutors who with racks and tortures and prisons and fires and exquisite inquisitions throw down the bodies of the true God’s servants to the idolatrous worship of their imaginary gods, that torture men into Hell and carry them through the inquisition into damnation. . .

Understandably, of course, Donne did not get the appointment at Whitehall. I don’t think he really wanted it. He wanted to send a message against torture. The sermon he preached electrified the nation and did much to help sharpen attitudes against torture, especially within the religious community. And only three years later, in a gathering at the Inns of Court in London, the assembled bar and judges of England declared “upon their honour and the honour of England,” that torture was against the common law. That marked the beginning of the sunset of legally sanctioned torture in the English-speaking world. . . until the arrival of George W. Bush.

The Model of William Wilberforce
But John Donne and his sermon give us a powerful example of the role of faith, its power to influence society and popular culture, and to influence the realm of law. And like Donne, William Wilberforce, reminds us that some issues of the day may be portrayed as political, but in fact transcend politics. People of faith should be able to see the difference. In the words of Wilberforce’s greatest parliamentary address: politics “is not my principle, and I am not ashamed to say it. There is a principle above everything that is political.”

Wilberforce was a minister committed to his religious vocation. He was a Conservative. He was also the great progenitor of the human rights movement. He was the first figure to raise the banner of abolition and to pursue it as a moral, not a political issue. As he did so, he rested his case on another already more broadly accepted proposition: that the torture of those under confinement was unlawful under the natural law, the law of nations, and the laws of Britain and her colonies (including an upstart republic across the Atlantic). A few weeks ago, I traveled with a friend to that magnificent rambling old Palladian church on Clapham Common where Wilberforce preached and organized. Wilberforce’s success rose from his ability to inspire the faithful across many lines–he worked side-by-side with Methodists, including John Wesley, Calvinists, Quakers and Catholics. And visiting the great Clapham Church earlier in the month, I found a group of West Indian children in Bible study, posters from the Methodist Church and announcements calling for social action on many issues. Wilberforce’s vision and his genius still fill that church–especially the vision of faith and commitment cutting across denominational lines.

Speaking Truth to Power
So what obligation do people of faith have in this circumstance? They have an obligation to give witness to their faith and to muster the courage to speak truth to power.

We must address Power in its three aspects.

First, to address those who hold high office in our representative government and thus are charged to make decisions on our behalf that govern the nation’s conduct in times of war, and in times leading to war. It is our moral obligation to firmly register our opposition to torture, our recognition of the fact that torture has been authorized and is being used, and our resolve to use all the rights we have in our society to obstruct and frustrate this criminal act which purports to be done in our name, as a nation.

Second, to the people themselves, since the people are sovereign under our Constitution and are the final reservoir of national power—it is their values and concerns which should ultimately find expression on the nation’s behalf. We must appeal to our fellow citizens to stop the abomination of torture and to bear witness against it.

Third, to address the very concept of Power itself, for Power has an ever-expanding impact on the lives of individuals in our nation and beyond its frontiers. Today Power spins out of control and has ceased to be held accountable to the sovereign people.

The truth which must be spoken is a universal truth that reflects the natural law, the given law, our values and faith. It is a universal truth that love endures and overcomes; that hatred destroys. What a people obtained by love and in a posture of righteousness is retained, but what is obtained by hatred proves a burden and ultimately corrupts he who holds it.

Torture is a crime under the law, in the face of humankind and nations. We have, each of us, an obligation independent of the responsibilities of the state to insure the enforcement of this law; to denounce those who violate it; to reveal their acts of treachery and criminality and to insure their accountability and punishment. Torture is a crime greater than most because it corrupts the core of the state and our society. It is a rot which spreads quickly, destroying all the other values on which our life and interaction with others rests. Torture breeds secrecy; it breeds tyrannical expansion of the power of the executive; it imperils the institutions of the democratic state. We underestimate the threat it presents at great risk to ourselves, our communities of faith and our society.

People of faith have the right to say: this is not simply a political issue, it is something which transcends the bounds of accepted political discussion. The absolute prohibition of torture is a moral doctrine common to all the religious communities in America. It stretches across all Christian denominations, and is indeed a common thread between Christians, Jews, Muslims, Hindus, Sikhs and Buddhists. The religious communities standing together can make a decisive difference on this point. And indeed, faith requires it.

Remarks delivered, in slightly differing form, at Princeton Theological Seminary in Princeton, New Jersey, on Nov. 15, 2007 and as the Arlene Shaw lecture at the Huguenot Church in Pelham, New York, on Nov. 18, 2007.

More from