Private: Torture and the Rule of Law

by Chris Edelson, an assistant professor of government in American University's School of Public Affairs. He is the author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, published in 2013 by the University of Wisconsin Press.

Following release of the redacted Senate Intelligence Committee's majority report on torture, critics are insisting that the report overlooks the value of waterboarding, sleep deprivation and other interrogation methods better suited to the Spanish Inquisition than a constitutional republic. Those who defend torture tend to emphasize its supposed efficacy in extracting intelligence that prevents terrorist attacks.  In fact, those who insist torture saves lives have never identified evidence that proves their case.

More importantly, however, arguing about the efficacy of torture point obscures two essential points: (1) torture, by definition, is illegal and (2) the argument in defense of torture is a rejection of the rule of law.

Defenders of the Bush administration’s tactics have helped make these points clear. For example, on yesterday's “Morning Joe,” former Bush communications chief Nicolle Wallace declared that she “pray[s] to god that until the end of time, we do whatever we have to do to find out what’s happening [in terms of planned terrorist attacks].” She suggested that we must trust the government to do whatever it believes is necessary to protect the nation -- in her words, “I don’t care what [the government] did” after 9/11 to prevent another terrorist attack -- as long as it works.                                         

Wallace is an effective and powerful speaker, and I thought her bombastic approach caught her sparring partner, Howard Dean, off guard and made for good TV. But it's worth taking more time than cable TV allows in considering the implications of what she said.

Wallace's argument is a case for handing over power to the executive branch, assigning it complete power to defend the nation, unrestrained by law. That is, of course, not what the framers of the U.S. Constitution had in mind when they created a system of checks and balances designed to give government enough power to carry out is responsibilities but also to set definable limits on that power. It is, however, precisely how government officials who authorized torture justified their actions. In once-secret memos written on August 1, 2002, former Justice Department lawyers John Yoo and Jay Bybee concluded that waterboarding, sleep deprivation and other methods CIA interrogators wanted to use on suspected al Qaeda leader Abu Zubaydah could not be defined as torture. Their view depended on the preposterous notion that severe physical pain necessary to constitute torture under U.S. criminal law could be defined by reference to health care statutes. But it is the backup argument that Yoo and Bybee relied on that is most chilling: they concluded that President George W. Bush could authorize any interrogation methods he deemed necessary, even if such methods violated U.S. criminal law. The president, they said, could not be constrained by Congress in this area.  

That is the language of an executive branch above the law, the same language Wallace uses when she says that she doesn't care what the government did to prevent terrorist attacks after 9/11, that it must do whatever is necessary. Bush administration lawyers agreed, concluding that the executive branch is not constrained by law.

What, exactly, does that mean? I won’t go through a ghastly list of methods that might theoretically be used by a president with unlimited power. It is enough to consider some of the methods we know have been authorized and used. Malcolm Nance, a military trainer personally familiar with waterboarding, describes it as a controlled drowning, “slow-motion suffocation with enough time to contemplate the inevitability of blackout and expiration.” The waterboarded subject has water filling his lungs.  As Sen. John McCain (R-Ariz.) puts it, “it is not a complicated procedure. It is torture.” Before 9/11, the United States prosecuted both Japanese war criminals and Americans who water boarded prisoners. In 1944, the Supreme Court succinctly described sleep deprivation as “the most effective torture and certain to produce any confession desired.” Those subjected to sleep deprivation say that “[m]aking a programme in which people are deprived of sleep is like treating them with medication that will make them psychotic,” and that “[i]n the head of the interrogated prisoner, a haze begins to form. His spirit is wearied to death, his legs are unsteady, and he has one sole desire: to sleep ... Anyone who has experienced this desire knows that not even hunger and thirst are comparable with it. I came across prisoners who signed what they were ordered to sign, only to get what the interrogator promised them.”

It may sound tough to argue that we must do whatever it takes to protect ourselves- -- who doesn't want to be safe?  But what does it mean if we accept Wallace's logic and the logic of the Bush administration? It means that we do not have a constitutional democracy. In its place, we would have autocrats empowered to do what they decide is right, regardless of the law.

On the surface, it seems that President Obama has rejected that argument by rejecting torture. But he has actually helped strengthen the principle that executive authority exists outside of the law. By deciding not to prosecute those who authorized torture (a decision that may itself violate international law); Obama has effectively made the decision whether to torture a question of executive discretion. Obama may reject it, but his successors may decide Bush was right (as Romney advisors suggested in 2012). Because the Bush administration has been able to violate anti-torture laws with impunity, the only check on the exercise of such power is the self-imposed restraint of an individual administration. 

Wallace suggested that the debate over torture is a partisan one, that critics of water boarding and sleep deprivation are liberals bent on political correctness. But her former boss, Sen. John McCain, has consistently exposed the bankruptcy of Wallace's claim, as he did most recently in praising the torture report on the Senate floor, declaring that “in the end, torture’s failure to serve its intended purpose isn’t the main reason to oppose its use. I have often said, and will always maintain, that this question isn’t about our enemies; it’s about us. It’s about who we were, who we are and who we aspire to be. It’s about how we represent ourselves to the world … Our enemies act without conscience. We must not.”

Sen. McCain has it right. The debate about torture goes to the very essence of the American system of government established by the Constitution, including the essential idea that no one in the government is above the law and there are limits on power. The framers of the Constitution rejected the myth of an all-knowing monarch who the people could trust to always do the right thing, to protect them as a parent protects a child. If we are true to that legacy, we will reject the idea that, when it comes to terrorism, the president can play the role of an 18th century king.

Executive Power, Rights of Detainees