THE SAD RECORD of human history shows that torture has more often been the rule rather than the exception—in criminal justice systems as well as in interethnic, intercommunal, and international conflicts.
The use of torture in such situations—and brutalities that might fall short of torture but are nonetheless brutalities—can have many motivations. Torture demonstrates absolute power. Torture wreaks vengeance. Torture intimidates. Torture punishes. Torture coerces behavior change. Torture harms, and sometimes the sheer (perverted) pleasure of doing harm is enough motivation. And yes, torture is sometimes deployed to elicit information, confession, or “actionable intelligence.” (This was the main ostensible reason why the U.S. tortured after 9/11. But other factors on this list should not be overlooked.)
Torture appears to come all too naturally to fallen humanity. That is a still quite useful theological term that conveys the belief that humanity was created good by a good God but has fallen into sin and thus has suffered disastrous individual and collective damage to its character. Fallen human beings and human communities resort easily to torture.
So one way to talk about the ethics of torture and brutality is to start exactly here—with the historically and theologically grounded claim that torture has more often been the rule rather than the exception in human history, a dark but pervasive aspect of the behavior of fallen humanity. But what if we turn the discussion of torture upside down in what might be a constructive way?
Instead of asking why the U.S. drifted into officially sanctioned torture after 9/11, the better question might be: What was it in the culture, law, and moral values of the United States that in the past prevented the country from legitimizing the torture of enemies—and can therefore perhaps be strengthened so that torture is never again deployed by the country that we love?
When framed in this way, the question invites a kind of sad celebration of a national achievement of our past. Brig. Gen. David Irvine, a former military intelligence officer with whom I worked on The Constitution Project’s Task Force on Detainee Treatment, explained that achievement. He said, “In our previous conflicts there have been brutal acts against captives, as has been the case by armies and governments throughout history. But there is no evidence that ever before has there been the kind of considered and detailed discussions that occurred after Sept. 11, 2001, directly involving a president and his top advisers, on the wisdom, propriety, and legality of inflicting pain and torment on certain prisoners in our custody.” Given the dark record of human history, this shift is noteworthy.
U.S resort to brutality and torture after 9/11 was in many ways aberrational. But it is only likely to remain aberrational if we work at it—if we reconnect to our heritage and understand why we strayed from it after 9/11.
In no particularly systematic way, here I offer 10 elements of our democratic heritage in the United States that once kept us from legitimizing the torturing of our enemies, factors that can be deployed again in the future:
1. Our Constitution, in the 8th Amend-ment, bans cruel and unusual punishment. This was followed by federal and state laws explicitly banning torture. We have a 225-year-old constitutional and legal tradition that bans torture. This is a sturdy place to start.
2. Military traditions banned torture from our very beginning. The example of George Washington during the Revolutionary War set a high standard. We developed a highly disciplined military culture over two centuries. Traditions of honor and accountability in the military have proven a valuable resource.
3. Our nation began with a founding narrative of having come out of British despotism and not wanting to develop such despotism in our own life. Founding narratives can be very powerful: This is who we are, where we come from, who we want to be, who we must never be. Our narrative helped us ban torture.
4. The U.S. was deeply involved in the development of international law and the Geneva Conventions, as well as the United Nations, which meets on our soil.When these laws, treaties, and organizations banned torture explicitly, and established structures for enforcing such bans, we supported them—and wrote our own statutes accordingly.
5. We are a nation that began with “a due regard to the opinions of [hu]mankind.” This means we respect other nations and peoples, we take their views seriously, and we desire to be a leader in the world as it seeks to make progress toward civilized values and away from tyranny and barbarism.
6. Checks and balances were built into the Constitution and all structures of government. Separation of powers were carefully designed to prevent despotism and tyranny. Review processes established the pattern that everyone looks over everyone else’s shoulder. Our system is built on disdain for absolute power.
7. We began with realism about human nature and its tendencies toward domination, tyranny, and abuse. People who believed in fallen human nature helped write the Constitution, and it shows.
8. We have for two centuries enjoyed a free press and an active civil society, which together shine a light into possible arenas of abuse—and press for reform.
9. We are blessed with longstanding medical traditions in the Judeo-Christian-Hippocratic line. This stimulates the resistance of medical professionals to participating in abuse or brutality. These commitments were reinforced strongly after World War II and its horrific Nazi abuses. Professional ethics standards in other fields have evolved and have yielded traditions of professional integrity and independent judgment.
10. Our nation from its beginning has been shaped by religious traditions emphasizing human dignity, human rights, and human solidarity.
HAVING THESE 10 resources in our national culture is something like having a sturdy 200-year-old oak tree in your front yard. Such a tree can withstand many fierce storms. But tornadoes challenge even very sturdy old oak trees. The 9/11 attacks were like a tornado. And they challenged our old oak tree. That tree bent in the gale. Let me go over the list again, looking for how that tree bent:
1. Legal resources: Lawyers in the Justice Department, under a great deal of pressure from the White House and national security worries, weakened legal prohibitions of abuse and torture using euphemisms and legal reasoning that look very bad in the light of day.
2. Military traditions: Both military leaders and the civilians who directed them weakened military bans on abuse and torture, and sometimes simply left military personnel to improvise with disastrous effects. Other U.S. security agencies with less history and less discipline (the CIA, for example) played a disproportionately large role in the worst abuses.
3. Founding narrative: Unfortunately, after 9/11 our national leaders did not call us back to this narrative but instead embraced an existential crisis narrative and a “by any means necessary” response. They chose a narrative of panic and improvisation amid supposedly new circumstances rather than national poise and recourse to older traditions integrating security and the rule of law.
4-5. International law and global opinion: Unfortunately, after the attack our leaders chose a general path of disdain for international law and treaty obligations and disregard for global opinion. This posture had long predated 9/11.
6. Checks and balances: Unfortunately, national security and secrecy habits kept much of the prisoner abuse and torture hidden for several years. Congress did little to exercise checks on executive power. The courts did somewhat better. But on the whole, executive power prevails in national security crisis situations unless the executive bends over backward to invite review.
7. Realism about human nature, including our own fallibility: Despite being led by a self-identified Christian president, national realism and humility did not prevail. We were the aggrieved victims; they were evil. We could be trusted to improvise in the dark; they had no particular rights that must be respected. This is perhaps a reminder that the deep theological and moral underpinnings of our political system are vulnerable to being lost via neglect.
8. A free press and an active civil society: Thank God for these resources that still survive in some strength in our society. The press uncovered what was happening. Civil society organizations swung into protest, activism, and research.
9. Medical and professional ethics traditions: After 9/11 there were disturbing failures in both medical and legal ethics. The participation of medical professionals in monitoring and facilitating abuse is well documented. The failures of legal professionals have already been noted. But it should also be stated that dissenting medical, legal, and other professionals played a whistleblowing role and have worked vigorously for change in the wake of these failures.
10. Religious and ethical traditions: There is much to applaud here and also much to lament. Religious and ethical values such as human dignity and human solidarity were activated and mobilized by numerous clergy, denominations, and groups—such as especially the National Religious Campaign Against Torture, which remains active today. I helped to lead the evangelical effort—in the teeth of strenuous opposition from many of my coreligionists, whose ethics were blinded by partisan loyalty and by versions of Christianity that did not serve them well in this moment of testing. In the face of such opposition, I was especially heartened to find sturdier ethics—sometimes with deep background influences from faith—among military, legal, medical, diplomatic, political, and other professionals.
Five years into the Obama presidency, it certainly cannot be said that the U.S. has come to terms with the breach of our own traditions—and laws—after 9/11. The government qua government has not faced up to its failures or its responsibilities. Accountability for wrongs done and harms done to people has been sparse. Public opinion remains frighteningly divided on the morality of torture.
Whether the United States will preserve and recover its rare and beautiful heritage of resistance to torture, or whether we will sink into the general morass of history with its all too constant resort to torture, remains an open question. This is a disturbing observation, but a true one.
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