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The Reclamation of Torture

Torture ConceptTorture is making a comeback. Not the practice, at least in this country, but the word. For a decade, politicians and the media fenced the term off to keep it from contaminating their description of American behavior. But gradually, the word is being reclaimed. We should pay close attention to this development, for as we rediscover words that were once taboo, we define anew what it means to be an American.

The process began overseas. On July 24, the European Court of Human Rights ruled against Poland for hosting a CIA black site. In a unanimous judgment, the court unequivocally denounced the so-called “enhanced interrogations” as torture. My colleagues and I represented one of the two prisoners who brought that litigation. After the decision, I wrote an op-ed for the Los Angeles Times that commented on the court’s candor: “There is no legalistic parsing of the sort we have come to expect in this country. Torture it was, and torture is what the court calls it.”

Three days later, President Obama declared matter of factly, “We tortured some folks.” The occasion for his apparently offhand but certainly calculated remark was an interview about the report of the Senate Intelligence Committee, which had completed a massive review of the CIA rendition and interrogation program. According to press accounts, the report calls the CIA techniques torture. Finally, Dean Baquet, Executive Editor of the New York Times, announced late last week that the paper would begin to call the CIA interrogations torture, as well.

The Recent History of Torture

This new willingness to describe U.S. interrogations as torture stands in marked contrast to the state of play for the past ten years. In 2010, a research team at Harvard published the results of a study that uncovered striking differences in how waterboarding and kindred techniques had been described by the press before and after September 11. For about 70 years before the attacks, major papers in the United States almost invariably said or implied that these techniques were torture.

After 9/11, however, and especially after 2004 with the disclosures about torture and abuse at the Abu Ghraib prison, the language changed dramatically. In nearly 300 articles, the New York Times, the Los Angeles Times, the Wall Street Journal, and USA Today described waterboarding as torture a total of four times. Yet the same papers, both before and after 9/11, continued to call it torture when it was practiced by other countries.

Why The Change?

So far, Baquet is the only person who has offered an explanation for this change. He attributed it to a shift in the national debate, which is now “focused less on whether the methods violated a statute or treaty provision and more on whether they worked. . . .” In this new setting, he concluded it was time for the paper of record to “recalibrate” its language. Henceforth, he said, “The Times will use the word ‘torture’ to describe incidents in which we know for sure that interrogators inflicted pain on a prisoner in an effort to get information.”

But this explanation is silly and should fool no one. The torture debate has always focused on a number of things, including whether torture “worked.” In fact, the efficacy of torture is no more a focus now than it was when the word “waterboard” made its inaugural post-9/11 appearance. The far better explanation for recent events is the difference between the past and present tense. To put it simply, we can say, “We tortured,” much more easily than we can say, “We are torturing.”

To say the former—that we engaged in reprehensible behavior that is now behind us—fits neatly with one of our most cherished myths: that the country is on an endless journey towards a more perfect Union. This sentiment instantly makes allowances for all transgressions, consigning them to a presumptively flawed past for which we cannot presently be blamed. In fact, we are to be congratulated for recognizing our mistakes and denouncing them, if only from the safe distance of time.

But to say the latter—that we are presently subjecting human beings to a brutality that no euphemism can rescue—is to admit that we do not and perhaps cannot live up to the values which ostensibly motivate our behavior. In a country where the rhetoric of values dominates the public square, this is the most damning charge that can be leveled. Never is this more true than during times of real or imagined crisis.

The result of this is to produce a curious ocular disorder. We cannot see what is plainly before our eyes, but imagine we see what is behind us with super-natural clarity. Thus blinded, we proceed blithely forward, comforted by the certainty that all is well, and smug in the belief that we are ever so much wiser than our predecessors. It is a prescription for complacency in the present and misjudgment about the past.

To acknowledge that we tortured people in our custody is all to the good. Indeed, we should do more than acknowledge it; we should make a careful and complete accounting, and if the Senate report is ever released, we may go far toward precisely that. But to imagine that all this was the product of a past that bears no connection to the present is foolish.

Worse, if we reclaim torture but ignore the public institutions and political assumptions that led to this behavior, we are willfully ignorant. And if we fail to see that they are with us still, in surveillance that accepts no limit, drones that observe no boundaries, and a war that cannot end, we are truly blind.

Joseph MarguliesJoseph Margulies is a Visiting Professor of Law and Government at Cornell University. He is the author of What Changed When Everything Changed: 9/11 and the Making of National Identity (Yale 2013), and is also counsel for Abu Zubaydah, for whose interrogation the torture memo was written.
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