Reasonable Doubt 

Now that the torture debates seem largely over, it is probably a useful time to step back and look at their lasting impact on American society. President Obama has ended the use of waterboarding and has shut down the secret CIA prisons. At the same time, he has made it clear that he wants to “look forward, not back,” which is widely understood as a desire to avoid a serious reexamination of the torture policies of the previous administration. It is tempting to consider the past eight years an ugly chapter in American history that is now closed, and to move on.

But I think it’s instructive to look at how the torture debates may have shifted the moral and legal landscape, with potentially dangerous and far-reaching consequences. The discourse took an unusual turn in recent years. Even in the final stages of the Bush administration, the President insisted that “the United States does not torture,” backing the party line that the documented abuse at Abu Ghraib was the work of a few bad apples who were duly prosecuted. While this was not credible, even at the time, it still showed that President Bush recognized that torture was wrong.

But since President Obama took office, the argument has shifted from “we didn’t torture” to “the torture was justified under the circumstances.” Dick Cheney, John Yoo, and other architects of the Bush interrogation programs have admitted that they authorized waterboarding and other “enhanced interrogation” techniques, but have defended them as necessary tools in the war on terror.  This shift — from denial to justification — may have profound implications for American law.

There is evidence that this attitude has trickled down to the American public and judiciary. A 2006 BBC poll found that 36 percent of Americans believe torture is justified under certain circumstances, among the highest results of all countries surveyed. A 2009 CNN poll found 50 percent of the American people approved of the Bush administration’s use of waterboarding and other enhanced interrogation techniques. 

It would be an even more troubling trend if this attitude took hold in the American legal system. In an interview with the BBC last year, Justice Antonin Scalia said, “Is it really so easy to determine that smacking someone in the face to find out where he has hidden the bomb that is about to blow up Los Angeles is prohibited under the Constitution? ... It would be absurd to say you couldn’t do that. And once you acknowledge that, we’re into a different game.

“How close does the threat have to be? And how severe can the infliction of pain be?” 

It is important to put this development in historical context. Up to this time, in modern American history, it was universally acknowledged that torture is wrong and unacceptable. In urging the Senate to ratify the Convention Against Torture in 1988, President Ronald Reagan said, “Ratification of the Convention by the United States will clearly express United States opposition to torture, an abhorrent practice unfortunately still prevalent in the world today. ...  `and` will demonstrate unequivocally our desire to bring an end to the abhorrent practice of torture.” The notion that it’s OK to torture some of the people some of the time is a new development, even on the hard right.

The advantage of creating an absolute prohibition, as the Convention Against Torture does, is that it leaves no room to plead for justifications and exceptions. By moving away from an absolute toward a situational ban, the questions become: Under what circumstances is torture justified and who gets to decide? Once this shift occurs — and I fear it already has — torture becomes acceptable as long as it is used “under the right circumstances.”

While the damage of this new position to our credibility abroad has been well-documented, I believe in the long term the greater consequence may be at home. Now that a legal and philosophical justification for torture has been constructed for the purpose of prosecuting the war on terror, it becomes much easier to employ in other circumstances.  History shows that tools created to fight enemies abroad end up being used at home. As James Madison observed, “It is a universal truth that the loss of liberty at home is to be charged to the provisions against danger, real or pretended, from abroad.” 

  I recently encountered a vivid example of the weakening of the legal and moral constraints against torture. The Convention Against Torture prohibits our country from deporting non-citizens to their home country if it is more likely than not that they will be tortured. My client, Princewill Daniells, is a native of Nigeria who has lived in the United States since the age of 3. He was convicted of drug possession and placed in deportation proceedings. 

We pointed out to the judge that Nigeria has a law, called Decree 33, which provides for a mandatory five-year prison sentence for any Nigerian with a foreign drug conviction, as Daniells has. We also pointed out that there was overwhelming evidence, including from our own State Department, that torture was routine in Nigerian prisons. That Daniells would be imprisoned in Nigeria and that torture is routine in Nigerian custody made it likely that he would be tortured if sent back to Nigeria and thus subject to protection under the Convention.

The State Department has determined that Nigerian “security services personnel, including police, military, and State Security Service (SSS) officers, regularly beat demonstrators, criminal suspects, detainees, and convicted prisoners.” Further, “Prison officials, police, and other security forces often denied inmates food and medical treatment as punishment or to extort money.”

The United Nations Special Rapporteur on Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment, Manfred Nowak, investigated prisons and detention facilities in Nigeria in March 2007. He reported, “Torture was frequently cited to the Special Rapporteur as being used for the purpose of extracting money, obtaining confessions or further information in relation to alleged crimes.” 

He continued, “Methods of torture included: flogging with whips; beating with batons, cables, bamboo sticks, and machetes; shooting suspects in the foot; threatening a suspect with death and then shooting him with powder cartridges; suspension from the ceiling or metal rods in various positions; and being denied food, water and medical treatment.”

The judge in Daniells’s case, Howard Achtsam of the Harlingen Immigration Court, agreed that Princewill would be imprisoned pursuant to Decree 33 and that torture is widespread in Nigerian prisons. But then came the most surprising part of his judgment. He found that although there is routine torture in Nigerian law-
enforcement custody, “the great majority” of it is intended to “extract confessions,” and therefore, as long as Daniells tells the truth “as he should be expected to do” he likely will not be tortured.

This ruling is disturbing for several reasons, but perhaps most significantly because it shows such a profound misunderstanding of the role of torture throughout history and the tremendous efforts modern society has made to eliminate this evil practice. The reason we have protections in the Bill of Rights against self-incrimination is because our Founders wanted to avoid the use of torture to coerce confessions, which had been commonplace in medieval Europe, and still occur in countries like Nigeria today. 

The origins of the Fifth Amendment’s protection against self-incrimination lie in the abuses of the Star Chamber, British courts of equity where forced confessions were used as the primary tool of investigation. However, as early as the 17th century, the Star Chamber had been disbanded and English common-law courts had incorporated the right of nemo tenetur se ipsum accusare — that no man should be bound to accuse himself.

Our Supreme Court understood the evil of using torture to coerce confessions and the necessity of stamping it out. For example, in Brown v. Mississippi, the Court overturned a conviction in 1934 of three black tenant farmers for murdering a white planter in which the only evidence were confessions obtained through repeated whippings and, in one case, stringing the accused by his neck from a tree. The Court wrote, “Coercing the supposed state’s criminals into confessions and using such confessions so coerced from them against them in trials has been the curse of all countries. It was the chief iniquity, the crowning infamy, of the Star Chamber and the Inquisition, and other similar institutions. The Constitution recognized the evils that lay behind these practices, and prohibited them in this country.” 

In Daniells’s case, the judge essentially turned the right against self-incrimination contained in the Bill of Rights and the Convention Against Torture on its head. He argued that the right should be abandoned in order to acquiesce to and thereby enable the present torture-confession legal regime in Nigeria, when history indicates it was created for the very purpose of disabling such torture-based legal systems.

It is tempting to believe that this is an isolated incident. However, I believe the creeping acceptance and legitimation of torture in our society and legal system played a role. When our leaders openly admit and justify torture, even in the limited case of terror suspects, it establishes a moral and legal framework that can be extended to other situations. In this case, it was extended to a long-time legal resident of the United States in the immigration context. Is there any reason that it could not be extended to citizens in ordinary criminal trials in the future?

In the Bill of Rights, our Founders took a strong stand against the use of tortured confessions as a tool of investigation. This value was codified internationally when the U.S. signed and (eventually) ratified, the Convention Against Torture. The current effort to backtrack on this fundamental humanitarian principle in public opinion and jurisprudence is alarming. In this context, President Obama’s view that we should ignore this trend in an effort to “look forward” seems dangerous and naïve. A thorough examination of the changes in attitude about the universal right to be free of torture is the most forward-looking thing we could do. •

Aaron Haas is a staff attorney with Texas RioGrande Legal Aid. His next column will appear in the December 16 issue of the Current.


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