Trump and the American Problem of Torture
Those practical objections raised against the practice of torture — that it invites reprisals; that it produces unreliable information — are rarely considered in a public debate framed around a hypothetical imminent bomb detonation that can be averted only by information induced from a captive unwilling to provide it.
This florid media fantasy endows the government with an unearned competence that elides over some pointed dilemmas, much in the same way that some throughout history have expressed a preference for the rule of a magnanimous autocrat to the ugly chaos of democracy. In either case, if one presumes admirable proficiency in theory when it seldom appears in fact, or could summon it from the very system, absent accountability, engineered against its cultivation, then perhaps the argument deserves a discussion.
But maybe the premise grants too much.
On the other hand, to insist on the validity of the pragmatic arguments raised against the practice of torture is not to suggest that those objections are paramount, or even sufficient by themselves. Is the best argument against rule by an autocrat really that we rarely get a good one? When Donald Trump flippantly suggests waterboarding a suspected terrorist, is it adequate to point out that the authorities may have the wrong person in custody? In the days following the September 11th attacks, American authorities mis-identified Abu Zubaydah, tortured him for information he did not have, against the objections of other interrogators, and to the disgust of those charged with torturing him. Yet his appalling case has done nothing to reset the timer on the conjectural bomb ready to go off, the apocalyptic scenario of doom that imparts a sense of permission for the impermissible.
Better instead to heed the warning of Reinhold Niebuhr and take seriously the enduring power of darkness, always present within us and haunting our history; or, as Reverend Barber urges, “listen to the ancient chorus in which deep calls unto deep.” Torture is a decision to regard one person as an instrument at another person’s disposal; its espousal, its many practiced forms and consequences, and its powerful influence over much of the American story demand an affirmative and equally emphatic response, not a sensible caveat or a meek demurral.
The Party of Lincoln No More
When President Abraham Lincoln signed Union Army’s 1863 “Laws of War,” he intended to provide some reliable footing to an enterprise that had intentionally sustained a political and legal ambivalence and, at times, an ambiguity: was the war against the Confederacy waged against a separate, sovereign nation — which enabled certain practices, like a naval blockade — or was it an effort to thwart an armed insurrection devoid of any standing? As Lincoln maneuvered between whichever set of arguments suited his purpose in the moment, the conduct of the war, including the capture of prisoners, begged for some clarification. His Emancipation Proclamation, issued months earlier and denounced by the Confederacy as in violation of customary laws of war, demanded it.
Accordingly, the Union Army issued “General Orders №100,” a set of instructions that, according to historian John Fabian Witt, laid the foundation for modern rules of combat.
The 1863 Code was the first of its kind to prohibit the execution of prisoners of war, except when soldiers determined that their safety was jeopardized by allowing the prisoner to live. In this case and several others, principles enshrined in laws of war are conditioned by necessity. Notwithstanding that fact, General Orders №100 expressly forbade the use of torture in all instances. The Code also provided instructions intended to safeguard innocent civilians. Finally, rather than evade the implications of the Emancipation Proclamation, the Code imposed its morality upon the Confederacy, declaring her threats to kill or enslave captured African-American Union soldiers to be an illegal act of discrimination on the basis of color.
The Confederacy greeted the Code as unprecedented in its severity, but the Orders survived the war to serve as the major inspiration behind the regime of international laws of war (the Hague and Geneva Conventions). For its enduring influence alone, General Orders №100 deserves to be ranked alongside Lincoln’s other major accomplishments and, among them, perhaps his most personal. Historian Amy S. Greenberg traces Lincoln’s commitment to rules of combat to his brief service as a Captain in the Black Hawk War, which was, by his own humorous description, uneventful, at least in terms of combat. But it left a deep mark. Following closely on the heels of one skirmish, Lincoln’s company discovered scalps of women and children and mutilated corpses. Many of his men wept openly at the sight. Not long after, when an Indian named “Jack” appeared in camp and professed allegiance to the Illinois men, the militiamen set upon him, ready to enact vengeance. But Lincoln intervened and enjoined his men to spare Jack’s life. For Greenberg, Lincoln’s actions marked his refusal “to bow to passions of the mob”; “In the face of a murderous enemy,” she writes, “Lincoln was highly unusual in upholding such a scrupulous moral standard.”
Naturally, the value of the rules of combat cannot not be separated from the character and ambition of those responsible for upholding them — or, even more important, the larger context within which they operate. In this sense, though influential, Lincoln’s work cannot be celebrated as a success. Historian John Fabian Witt joins Jean Bethke Elshtain in noting that laws of war and other formal military protocols do not, in themselves, constrain war-making. If anything, they lend legitimacy to it, something that Union General William Tecumseh Sherman, among others, found grotesque. “War is cruelty,” he reflected in the years following the Civil War, “and you cannot refine it.”
As the first recognized practitioner of “total war,” Sherman knew well what the twentieth century would later lay bare: laws of war do little to curb its lethality, especially for the innocent civilians the codes purport to protect. It is perverse but true that, since the Hague and Geneva Conventions, wars have become less deadly for militaries, but vastly more so for civilians — even if one excludes the Holocaust as some sort of aberration. The slaughter of civilians in modern warfare is anything but exceptional, and treaties ratified to promulgate rules of combat intended expressly to prevent it have failed utterly.
By the same token, other components of Lincoln’s work survived intact — though not unchallenged — only to be left it tatters by the United States recent “war on terror,” and the modern Republican Party. One of the few unqualified rules in modern warfare is the prohibition against torture. No one supposed it never happened, but no one tried to defend it when it did.
That is, not until officials of the Bush administration put forward a set of distinctions that, in their minds, sanctioned torture— or, in their most callous act of sophistry, terrifying acts that mimic torture but, since it was meted out in a controlled environment in order to achieve a particular purpose, could not be officially deemed as such.
With dubious legal memoranda in hand, CIA interrogators proceeded to subject an as yet unknown number of prisoners to waterboarding, which Democratic Senator and then-chair of the Senate Select Intelligence Committee Diane Feinstein determined in her investigation to be “a series of near-drownings.” Feinstein’s committee also found that the CIA deprived prisoners of sleep for up to a week; gave them “medically unnecessary rectal feedings”; and issued death threats. The CIA lied to Congress and the White House by overstating the value of the information extracted by using torture; the agency also failed to punish interrogators who failed to abide by procedures. After CIA whistleblower John Kiriakou confirmed the use of waterboarding to news media, the agency retaliated by charging him with leaking classified information; he served a two year sentence in federal prison. To date, no one has been charged with a crime for conspiring or participating in an illegal program of torture. (The ACLU represents three of the victims of torture pursuing civil litigation against the psychologists who designed the program.)
A variety of different moments in our recent past could be considered seminal to the candidacy of Donald Trump. Though not without important antecedents, like Senator Joseph McCarthy or Governor George Wallace, most of the plausible direct links would fall after 1968 and the “law and order” racial politics that made a Republican presidential majority possible. As future historians inspect this lineage more closely, the Republican Party’s denunciation of Democratic Senator Diane Feinstein’s investigation into torture and the 2014 publication of her results will emerge as among the most significant.
After all, one of the striking things about it was the partisan divide. While Republican Senators John McCain and Rand Paul supported both the review and the release of Feinstein’s investigation, others in their party struck a defiant tone, defending torture by euphemism (“enhanced interrogation tactics”) and brazenly cloaking their justification of brutality in patriotic fervor. Ralph Waldo Emerson once wrote of the legendary Daniel Webster’s disgraceful support of the fugitive slave law: “He did as immoral men usually do, made very low bows to the Christian Church.” In a similar fashion, as they condoned and defended torture, Republicans who preferred to vindicate George W. Bush rather than their own country vigorously waved the flag.
This is not simply a rejection of the life and legacy of their party’s great founder. It is a return to the deep currents of tribalistic jingoism that shaped much of American history before Lincoln, and persisted long after he was gone.
Exceptions to “America” & American Exceptionalism
After all, Lincoln did not discover the laws of war. Historian John Fabian Witt cites a continental tradition of Enlightenment thinking that rebellious colonials invoked to their advantage — and modified to their own liking. Thomas Jefferson decried King George’s abuse of several of those principles in the Declaration of Independence, but, among the list of “repeated injuries and usurpations,” he was careful to enumerate the evil of “inciting domestic insurrections,” meaning slave revolts, in the colonies.
This was not merely another item in a litany of wrongs; it was an intentional move to escape the implications of the intellectual tradition Jefferson relied upon for legitimacy. Sir William Blackstone, closely read by the founding fathers, as well as his great intellectual influence, Baron Monetesquieu, both found slavery contrary to natural law. For these men, it followed from their own cherished precepts that the existence of slavery was a perpetual war on the natural order; its preservation dependent upon torture and regime of violence that exceeded King George’s depredations; and the occasional insurrection was an inevitable though hardly commensurate response.
But, rather than cede this ground to the intellectual tradition he invoked, Jefferson inserted the notion that some were less than human in the generative corpus of the nation. This, in a recurring and still unresolved sense, is the essence of American exceptionalism: the claim of a formal as well as an unwritten exemption, usually based on race, from the principles governing (however imperfectly) elsewhere.
A generation after the founding, Americans condemned the British for their military’s destruction during the War of 1812. Yet, when General Andrew Jackson, that war’s most beloved hero, pursued similar tactics in the Seminole Wars, Congress exonerated him. Jackson’s execution of two British subjects — neither of whom were operating on US territory — threatened to return the United States to war with its erstwhile enemy for a senseless violation of the rules of combat. The issue carried grave weight but, in the end, the British had no more appetite for war.
On the other hand, Jackson’s barbaric treatment of the Seminoles, which was understood both in terms of reciprocity and of race, received only passing notice. “A tribe of savages,” one Congressman contended, was underserving of the laws that governed the affairs of nations. President James Polk, Jackson’s most earnest political protégé, depended upon a similar logic of racial inferiority as he incited war with Mexico. It was not an accident that abolitionists were the first to print letters from American soldiers disgusted with the US military’s crimes committed during that savage war; likewise, it was no surprise that slaveowners in the South supplied the war’s most ardent supporters. These divisions reflected upon not only the war’s anticipated expansion of the institution of slavery, but whether and to what degree a person viewed another through the prism of common humanity, or the lens of racial hierarchy.
Lincoln, like others before him and the many who followed in his wake, tried to “repair the breach” of what Thomas Jefferson left unreconciled: the country’s higher purpose with its manifest, corrosive “original sin” of slavery. But the indecent proposition that, by virtue of race, religion, or any other conceivable distinction, one person is less deserving of basic regard than another remains fundamental to American life.
The fictive but deeply unsettling story about General Pershing that Donald Trump is fond of citing is instructive in this regard. Legend has it that Pershing asked his soldiers to execute 50 members of the Philippine insurgency with bullets dipped in pig’s blood; he then left one prisoner alive to return and recite the horror to his countrymen, in order quell the uprising. In fact, Pershing herded both insurgents and civilians into concentration camps, and the ensuing rampant disease and summary executions left tens of thousands Philippines dead.
Never mind that the pig’s blood story, if it were true, would have only stiffened the resolve of Philippines already persuaded of American barbarity — just as word of Andrew Jackson’s tactics in the Seminole campaign steeled the tribe for more war, and likewise the US fire-bombing of Tokyo during World War II convinced Japanese who skeptical of their own imperial government that American rule would be far worse. These are all important but secondary considerations. Exposing the counterproductive nature of criminal acts may work to prune the branch, but it will never strike at the root.
In this way, though Donald Trump’s debased campaign can be traced to particular political strains of fairly recent vintage, his hatred is embedded in our past and indicts us all. As he renders the American embrace of torture apparent by virtue of making it absurd, no absolution will take place by degrees of disassociation. We must disown. In effect, by isolating Trump from even his own political party rather than integrating him into the story of our nation, we commit a harm analogous to objecting to torture on purely pragmatic grounds. We privilege small distinctions over larger truths, and perpetuate the very mechanisms and rationales that enabled Trump’s rise in the first place.
Because in fact, we live in collective denial about the torture and abuse that takes place in our prisons and jails; the inhumanity of depriving people of healthcare, and the indignity of robbing them of decent work; the brutalization of our children via instruments of control, made to suffer in the shadow of our indifference. We tolerate the insular view that rights stretch only as far as certain races, religions, or flags, and that obligations are inimical to freedom; that power is its own purpose, rather than righteousness its only cause.
To dismantle a regime of torture, to repudiate Donald Trump in any real sense, would mean to disabuse of all this and more. As in the Book of Isaiah, “our sins testify against us.” To pursue justice — to view as urgent what we have been complacent about, and to look with empathy on those we have estranged — is the only worthy response.
