Monday, October 24, 2016

Torture, Human Rights, The Constitution, and Jack Bauer

By: Austen Erblat

Revision: March 8, 2017
A previous version of this piece reported “there is no constitutional right granted to, or exemption for torture from the U.S. or state governments,” despite contradictory statements a few paragraphs after. It appears to have been an oversight in editing and I apologize for any confusion that may have occurred from reading previous versions. —Austen Erblat

The third presidential debate saw questions for candidates, Hillary Clinton and Donald Trump, that deal with some of the most important issues of our time; war, the economy, the environment, our national debt, and the Supreme Court. Still, a lot of people remain dissatisfied with the level of discourse between the two leading candidates this election.

Debate moderator and political commentator, Chris Wallace opened the debate by asking where the candidates saw the Supreme Court taking the country and whether the Constitution should be interpreted according to the original intent of the Founding Fathers or if it was subject to changes as times and technology evolved.

Hillary Clinton answered first and said that she “feel[s] strongly that the Supreme Court needs to stand on the side of the American people, not on the side of the powerful corporations and the wealthy.” Clinton said she wants a court “that will stand up on behalf of women's rights, on behalf of the rights of the LGBT community, that will stand up and say no to Citizens United, a decision that has undermined the election system in our country because of the way it permits dark, unaccountable money to come into our electoral system.”

Donald Trump answered second, “I feel that the justices that I am going to appoint-- and I've named 20 of them. The justices that I'm going to appoint will be pro-life. They will have a conservative bent. They will be protecting the Second Amendment. They are great scholars in all cases, and they are people of tremendous respect. They will interpret the Constitution the way the founders wanted it interpreted. And I believe that's very, very important.” In the second debate, Trump said that he would appoint someone like Antonin Scalia, “a great judge,” he said, whose death earlier this year left a vacancy on the court.

One issue lacking in the debates and the overall conversation of this election is human rights, particularly as it pertains to our treatment of prisoners and suspected terrorists. I wanted to examine both candidates’ views and positions on the subject of torture and its relationship to constitutional and human rights.

It seems we have taken steps backward in protecting human rights, especially as it applies to accused criminals and terrorists. I stress the word “accused” because in some cases, torture is used to punish people that did not commit the crime they were accused of. It has also been used as a way of interrogating subjects of investigations who often severely lack the legal protections that are supposed to be guaranteed to them.

The primary goal of torture, according to its supporters, is to obtain information from sources who they say won’t supply it willingly. As a result, it has largely happened in secret and out of the reach of most human rights organizations. Torture has also been used as a punishment for crimes, offenses, or other violations of certain legal or social rules. Some critics of torture have worked to define punishments like solitary confinement, sensory deprivation, and other tactics that don’t require physical contact as forms of psychological torture. It is a tactic humans have employed since long before slavery was written into our Constitution, and is occurring around the world as I write this.

Torture became codified within our legal system after September 11, 2001 when Deputy Assistant Attorney General to President George W. Bush, John Yoo, wrote a series of legal memorandum, authorized by Secretary of Defense, Donald Rumsfeld, Attorney General, John Ashcroft, and Assistant Attorney General, Jay S. Bybee, granting the president unlimited, absolute power to deliver his idea of law and order in the “War on Terror.”

The documents, which became known as the “Torture Memos,” laid out specific methods and host nations that would be particularly effective in carrying out this torture. They said it was necessary in order to combat the objectively evil network of global terror. The argument employed by many Bush administration officials and their supporters was the Nixonian idea, “it’s not illegal if the president does it.”

Rhetoric such as “good and evil” and its employment to wage wars and garner public support is as old as formal nations and governments themselves. The unique thing about the Bush administration’s accumulation of power, however, was their using the pretext of the “evils of terrorism” to commit those very same and sometimes worse offenses with the stated intention of combating that evil. Some critics equated it to fighting fire with fire. Some call it fighting fire with oil.

In addition to the international treaties prohibiting the use of torture by any signatory, the United States specifically bars torture as a form of legal punishment under the Eighth Amendment to the Constitution under the "cruel and unusual punishments" clause. The exact definition of “reasonable” and “unreasonable” continue to evolve as we search for our humanity, but they are usually based on some sort of standard set by society. The determination of punishment that fits the crime is always being updated and is subject to the courts, but one example of the “evolving standards of decency,” would be that the death penalty can no longer be used as a punishment for theft.

An argument can be made for interrogations beyond a verbal interview if they actually save people from imminent danger, but the government must be able to prove that their actions led to an actual reduction or elimination of harm. This scenario plays out in many a spy thriller.

24 was a television show created by Joel Surnow in 2001. It premiered less than two months after September 11th and followed protagonist Jack Bauer, an agent of an elite counter terrorism agency, CTU. The show has a fast paced plot that saw Bauer chasing terrorists around the Los Angeles area, searching for a bomb that threatened to kill one of the presidential candidates in the story. Subsequent seasons began incorporating plot elements that mirrored or attempted to depict potential events in the real world of politics and the threat of terrorism in the United States and abroad.

In the fictional world of 24, viewers are presented with dozens of instances where a bomb or other attack appears imminent and the audience knows that the person being tortured or interrogated has information that will help save many thousands, if not millions of lives. Neither Bauer, nor any other character conducting “enhanced interrogations,” however, know if the information they collect is actionable or even accurate. This eventually leads to Bauer being subpoenaed for a Senate investigative hearing in the eighth season, which is interrupted in the first episode and never resumes.

Even with the surveillance technology and other resources available to investigators that do exist in real life, the public has not been presented any evidence that torture has led to a thwarting of a single terrorist attack. Perhaps these operations have all happened covertly and we are constantly being made safer from torture without our knowledge, but almost all of the evidence available says otherwise.

On top of the ineffectiveness, cruelness, and inhuman nature of torture and its physical and psychological effects, it also lacks any place in a free and just society because it deprives its subjects of due process of the law. All people are owed certain legal rights when they are the subject of legal action from the U.S. no matter who they are or what they did or are accused of doing. These rights usually include formal notification of the charges brought against them, evidence to support those charges, an impartial and public trial with a jury, the right to a defense against those claims, and the assistance of an attorney, if desired. The implementation of our torture policy not only deprives suspects the ability to defend themselves against these claims, but they offer them no way to provide information if the accused is unaware of that which their interrogators seek.

Donald Trump has publicly and repeatedly supported the use of torture as a method of information gathering and as punishment. “Only a stupid person would say it doesn’t work” he said at a rally on the campaign trail. “If it doesn’t work, they deserve it anyway, for what they’re doing.” The Republican nominee has said time and time again that not only does torture work, but that we do not use it with the frequency and intensity that he feels is required to defeat terrorism, an idea that FBI and CIA agents and officers involved with the program have refuted.

Hillary Clinton has more progressive views on torture, at least in her speeches and interviews. As with Donald Trump, whose opinions apparently change on a whim, it’s important to keep in mind Clinton’s more deliberate attempt to say and do different things; to have, in her own words, “both a public and a private position.” Her views have changed over time, indicating either a change in her moral code or an adoption of a public position. "In the event we were ever confronted with having to interrogate a detainee with knowledge of an imminent threat to millions of Americans, then the decision to depart from standard international practices must be made by the president, and the president must be held accountable," she said in 2006. In a debate against Barack Obama for the 2008 presidential election, she said that torture “cannot be American policy, period." Whether she feels it should still be used, even if not publicly our policy remains unknown.

Libertarian candidate, Gary Johnson wrote in his Reddit Ask Me Anything, “Torture and the practice of detainment without being charged are practices that need to stop.” Jill Stein, in the Green Party’s 2015 State of the Union response, said “we need a foreign policy based on international law, human rights, and diplomacy, instead of militarism. Our current foreign policy has been an outright incredible disaster. Drones and torture have especially been damaging.”

It is unknown whether any of the candidates mean what they say or just take the position they know appeals to their audience base (or contrasts most starkly with their opponents). With the Democrat and Republican candidates’ public and private support for endless and indiscriminate military intervention, regime change, arms sales to countries with civil war and human rights abuses, and praise for dictators and war criminals, the continued use of torture and further erosion of our constitutional rights seems like a campaign promise we can rely on.

Evoking the Constitution and the intent of the Founding Fathers can be a controversial tactic for politicians, judges, attorneys, and historians. On the one hand, we claim to use many of their guiding principles to shape our legal, political, and social structures. But it can be difficult to use these principles as examples of ideal states of justice when they were written by slave owning white men who wrote that all men are created equal. As it pertains to the way we treat our prisoners and our enemies, I think the founders had a wide range of views, but they all understood that they themselves were the enemies of a state they felt oppressed by. I think their intent and their desire for future generations was to work to develop and stick to a moral code that does not bend, but remains that much more firm under threat of evil or injustice. We persevere when we treat those who hate us the most with the same dignity as those who we would do anything to protect.

If there’s anything I think readers of history can agree on, it is that the message of the founders of this country, and others who fight for justice and liberty, tend to write about the ideal condition, not the current one; that is to say, their views, while a byproduct of their situation and circumstances, describe the condition they want to work towards, not the one they had to escape or defeat. As evil grows stronger, we too must grow stronger but work in the opposite direction to resist the same methods employed by those we claim to be so different from.

This criticism over the broad policy and use of torture is not without hesitation though. It does raise important questions regarding what can be done to get information about violent crimes, attacks, and imminent threats to large numbers of people. Is being physically beaten in the same category as being forced to listen to heavy metal music? What about Britney Spears? These questions should be asked in the context of how our laws interact (and can potentially clash) with our morals. Is something that is legal necessarily moral, and is something that is illegal necessarily immoral? Do the ends justify the means if it results in saving innocent people’s lives? How innocent are people who tolerate or support their government’s oppressive foreign policy and violations of human rights? How would Jesus or Ghandi or George Washington answer these questions? Does that matter? None of these questions can be answered in a way that will satisfy everyone, but we can't move in any desirable direction if we don't at least have these conversations and demand our elected officials have them too. It is also important to remember that while literature, television, films, and music can be essential elements of political and societal criticism, we should make decisions of constitutional and human rights issues from fact, and not fiction, as Justice Scalia had.

As of publication date, no members of the U.S. government have been arrested for their involvement in torture, other than John Kiriakou, a former CIA officer, who disclosed the torture program to the public. President Obama has refused to prosecute any Bush administration officials while torture and the detainment of accused terrorists have continued under the Obama administration.

I’ve wanted to write a post about the subject of torture lately. Maybe it’s because 24 will be returning to TV this year, or because ABC has an upcoming show starring Kiefer Sutherland set after a major national disaster. Perhaps it is the timeliness of this increasingly contentious and divisive presidential election. There's also Mohamedou Slahi’s release from Guantanamo Bay. Maybe it is simply because I just turned

Photo courtesy of Wikimedia Commons

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