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Bar News - November 9, 2007

Opinions: It’s Time to End the Torture



A hallmark of the rule of law is that a nation’s laws must be fair, public, and apply equally to everyone, including the government itself.


Recent news articles indicate that the opposite is happening with respect to torture.  Secret Justice Department opinions have allowed this practice to continue—despite U.S. and international law, and despite the U.S. military’s opposition to mistreating prisoners.


According to the reports, one Justice Department opinion explicitly authorized the CIA to use multiple painful physical and psychological tactics at the same time, “including head-slapping, simulated drowning and frigid temperatures.” 


A later opinion found that none of the CIA’s interrogation tactics violated standards on inhumane treatment of prisoners.


Since the horror and tragedy of Sept. 11, 2001, few questions have been more legally or emotionally charged than whether our government should torture enemies in the name of national security.  With the strong support of American military leaders, Congress has banned abusive, degrading treatment of prisoners by America’s military forces. In 2006, the Supreme Court ruled that the Geneva Conventions’ ban on torture applies to suspected terrorists.


The U.S. Army acted admirably in September 2006 by amending its Field Manual on Intelligence Interrogation to order humane treatment of all captured enemies, even those suspected of terrorist ties.


The military now explicitly bans stripping detainees naked or subjecting them to sexual humiliation, using hoods over detainees’ eyes, inflicting any form of physical pain, exposing detainees to sustained cold temperatures, or simulating drowning through a painful and terrifying technique known as waterboarding.


The Army had good reasons for banning such practices. Military leaders say torture doesn’t yield reliable information, and could give our enemies legal justification for abusing captured Americans. 


More fundamentally, torture violates our nation’s own values of decency—values that date back to George Washington, who ordered Revolutionary soldiers not to mistreat captured British enemies.


According to a Pew Survey at the beginning of this year, a majority of Americans still hold those values, saying that torture is rarely or never justified.


While recognizing the fears that linger from 9/11, the American Bar Association opposes all forms of torture. In August, the ABA called on Congress to prohibit the CIA and other civilian agents of the U.S. government—not just military personnel—from mistreating detainees. That expanded on a 2004 ABA policy calling for an end to torture.


Congress must once again intervene, to override the Justice Department’s torture memos and a July 2007 White House executive order that make torture legal in everything but name. And lawmakers must ensure that all persons detained by U.S. agents are treated in accordance with the Geneva Conventions and the Army Field Manual.


Our nation’s challenge, in a dangerous age, is to be strong, unyielding champions of the rule of law, even as we defend our security.  The Executive Branch has publicly pledged that our government is complying with the Geneva Conventions, but covert opinions that allow mistreatment of captured enemies inevitably create doubts and uncertainty.


It is time for our nation to have one clear law for all Americans. Congress must eliminate any exceptions or loopholes that violate our nation’s values. There must be an absolute ban on torture.


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