The Torture Card in the Presidential Election: Undecided in Toledo

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by Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law

As I noted in, I am undecided on the top of the ticket because of what the candidates have said or done about torture.

President Bush tortured. 

In his first term, President Obama has not prosecuted any of the high-level civilians and military generals who put in place that torture and has refrained recently from prosecuting even a couple of CIA types.  At a conference on September 7, 2012, I asked William Burke-White, Deputy Dean and Professor of Law, University of Pennsylvania and former member of Secretary of State Clinton’s Policy Planning Staff representing the Obama campaign whether Obama planned to prosecute high-level people in his second term.  Mr. Burke-White did not provide a response.

Today, in the New York Times, an article entitled “Election will decide future of interrogation methods for terrorism suspects” draws attention to a memo done in the Romney campaign which is supporting a return to enhanced interrogation techniques.  It may not be surprising the memo goes there as Romney has stated he does not think waterboarding is torture – another torturer’s rationalizing.  The five page memo entitled “Interrogation Techniques” is available at  The article lists the members of the subcommittee which wrote the memo and they are a laundry list of the Bush era boys who enabled the torture, a couple of young fellas, and a distinguished woman with scant experience in the detention and interrogation space.  So – no surprise – the memo comes out in favor of going back to the torture.

Bush tortured, Obama did not prosecute the torturers, and Romney promises a return to torture.  Will the circle remain unbroken?

We go around and around on this torture circus in this country because we do not prosecute the high-level civilians who put it in place.  Instead, they go to think tanks, and law schools, and law firms to bide their time until another candidate comes along of their preferred party.  Then, as a further echo of the original crime of the Bush Administration types, they reaffirm the right to torture to the next candidate, this one Romney.  If Obama and Holder had just prosecuted one of these people, they would be more circumspect about advocating torture.

What particularly is galling in all this is that there are people who have been prosecuted.  They are soldiers in uniform who were court-martialed for betraying their obligations under the Uniform Code of Military Justice at places like Abu Ghraib.  These soldiers were doing the bidding of their higher-up uniformed and civilian overt and covert hierarchies and, when the story broke, were made to be the fall guys and women in the desperate effort by those above to insulate themselves from any criminal or civil liability.

This is an old game of having the civilians and intelligence types let the soldiers at the bottom be the fall guys and women.

What galls me is that when cases have been brought to our courts, our courts through a string of decisions under a necklace of doctrines, have not allowed a day in court – dismissing private plaintiffs claims at the inception of the process. 

Even now, in the military commissions – another bastardized Bush third class process -torture contributes to the disgrace.  These military commissions are a disgrace – not because of the great soldiers doing their duty for whom I have great respect for their roles as judge, prosecutor and defense – but because Obama has left these commissions in place and I have no doubt that Romney would continue them.  They are a disgrace because even the cleaned up evidence is evidence that had to be cleaned up because of the torture.  Both directly and indirectly, the evidence is tainted with the torture and the rules to be applied that depart from normal processes are precisely shaped that way because they are also a product of the torture. They are a disgrace because when those who were tortured speak of their torture, the microphones are blocked out supposedly to protect sources and methods but we all know it is to protect those who tortured from having their handiwork examined in the light of day. 

Will the circle be unbroken?

Maybe the circle can be unbroken by having a question be raised about torture at the upcoming Presidential and Vice-Presidential debates.  It has to be a good question that can not be answered with a line like “torture has saved American lives” (I expect that would be Romney’s line with the “enhanced interrogation techniques” euphemism used instead of torture in that so American way of changing the label without changing the thing underneath).  It has to be a question that can not be answered with a line like “we have to look forward and not backward” (I expect that would be Obama’s line as if the fact one always has looked backward in every criminal prosecution was something beyond our capacity as Americans to handle when it is about torture).

It has to be a question that takes the two candidates and the country to another place – to a place about rule of law, American values, a place that remembers the depths of American history and the abuse of people in slavery, of the horrendous things done in the wars with the Native-Americans, of the deaths and maimings that occurred all through the creation of the American nation, of the horror of our Civil War, of the grim history of General Forrest slaughtering black union soldiers, of the wars with Mexico and the Spanish-American War and the water cure, of the Seminole Wars of Jackson and his summary executions, back through the lynching in the post-Civil War restoration and well into the 20th and now 21st century, of the voter intimidation that has been pervasive since the Civil War for all kinds of Americans, back through the almost hermetic segregation of blacks in this history, back through the peonage of farmworkers and oppression of Hispanic-Americans in the South and West, back through the brutalizing of workers in the coal mines when they sought to unionize, back through the Autolite strike here in Toledo, back through the shooting of Mormons and their march West to Utah, back through the No Irish Need Apply in Boston, back through the murder of Sikhs in Wisconsin, the brutalizing of Asian-Americans in different cities and towns,  back through the anti-Muslim ambience that stinks across the country since 9/11, back through the deaths of soldiers lied into a War in Iraq and staying in Afghanistan and subject to “blue on green” attacks, all the wounded and maimed, and all the dead, all the dead.  It has to be a question that includes in it all the places in the world like Poland and Roumania and Thailand and Egypt and Mauretania and Morocco and Syria under Assad where we took people and had them tortured and about which only foreigners in Poland and Italy and the European Court of Human Rights seem to have the will to bring light and ask questions about these things done by America in the name of the American people’s safety.  We have to have in that question the notes of former Egyptian Vice-President Suleiman, who died mysteriously in Cleveland recently, where he might describe how candidates for the Egyptian torture were brought to him by American emissaries.  We have to include in that the Libyan intelligence chief Senussi and his experience working with the US in torture.  We have to include in  that those who died under the torture or due to its consequences and those wandering around the Middle East who were subjected to that torture and who tell the story to those around them.  Back through the collateral damage persons as the focus of who was damaged  under the drone strikes that brought their deaths and injuries. We have to include in that question Al-Qahtani who is sitting in Guantanamo driven insane by the torture we did and not permitted to be shown to the American people.  We have to include all the people at Gitmo up to and including the dreaded Khalid Sheikh Mohammed who through the torture by America has had confirmed to him every twisted belief about what America does as opposed to what America says it is.

We have to take all of that history and bring into it 9/11 and all the horror, fears, and pain of that day for America and people around the world.  We have to bring into that Bali, and Madrid, and London, and every other place where a bomb has gone off and killed civilians who were just trying to go about their business.

Maybe that history can be synthesized in an image, like Pablo Picasso’s Guernica from the Spanish Civil War to help us crystallize it.  And maybe that image can help us bear the load of all that history as we formulate that question.

Yes, that question has got to be a real pithy one that reaches way down inside our history and all of this history.  And, if we can come up with that question, then we have to carefully pick who can ask that question.

 It has to be asked by a person who does not think of torture as just a question of policy differences, or of instrumentalized options, but thinks in terms of the abhorrence that all states have expressed about it in making the prohibition against torture a peremptory norm.  In that sense, we have to have someone who can invoke in that question the world’s long sad history with leaders torturing the people they despise out of hate and disdain – in essence reducing them  to an animal state out of an insatiable need for some type of vengeance, domination, or euphemistically “actionable intelligence.” 

Yes, we have to have a question that is asked by someone who actually gives a damn about it.  Maybe one of the psychologists working all these years to rid the stench from their profession of those psychologists willing to use their healing skills to help torture people.  Maybe it has to be Specialist Darby who passed the Abu Ghraib tapes to the Military Investigators because he saw that something was happening here that was not very clear but was not the way he understood America that he used to know was to act.  Maybe it has to be General Taguba who asks who thought he was joining the military and was honored to serve and then started to wonder whether he was in a mafia.  Maybe it has to  be Alberto Mora who ran around the Department of Defense to get the horrendous techniques rescinded.  Maybe it has to be one of the retired uniformed Top JAG’s who became aware of what was going on and called for a full legal review of the program and who were quashed by General Miller at the order of the DoD General Counsel William J. Haynes II.  Maybe it should be William Taft who fought valiantly a rearguard action against the horrendous departure from the Geneva Conventions.

Yes, that question has to be asked by someone who gives a damn about what is at stake in this shell game on torture that the Executive, Congress, and the Courts are playing instead of confronting domestically the criminality that is the essence of what has been done.

Like Diogenes, I raise my lamp, and look for that man or that woman who can formulate that question.  I look for that man or woman who can ask that question.  And, I look for that man or that woman to be permitted to ask that question by all the powers that be.  And, if the powers that be deign to allow a mere citizen to speak to these two aspirants, I look to see what these two Presidential aspirants say to that mere citizen.  And then I would ask that man or woman, is what these aspirants have said good enough for America? And, if so, for whom would you vote?