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Essay: Torture, Morality And The Laws Of War

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The United States Senate Select Committee on Intelligence recently released 525 pages of its long awaited report on the use of torture by the CIA in the ongoing “war on terror.”

The full report runs 6,000 pages and took five years and $40 million to compile. Most of it remains classified. But foreign policy contributor Art Cyr says even those unclassified 525 pages should have us paying close attention.

Barbarism and the law collide in war. The law is vital for mitigating the most brutal aspects of collective killing.

Today, both dimensions are present in the intense politicized debate in Washington about CIA torture of terror suspects. The Senate Intelligence Committee report released December 9th is a long, dense and intense indictment of the agency for deception, ineffectiveness and brutality.

Democrats for years have pressed for release of this classified information, but the debate does not divide entirely along partisan lines. Republican Senator and 2008 presidential nominee John McCain has been a very visible outspoken opponent of torture, which he suffered for years as a prisoner of war in the infamous Hanoi Hilton during the Vietnam War.

The current debate directly reflects decisions by the Bush administration, which following the 9/11 terrorist attacks began use of torture - euphemistically described as "enhanced interrogation" - in the struggle against al Qaeda.

Secretary of Defense Donald Rumsfeld and other argued that neither the Geneva Conventions nor U.S. law applied to terrorist suspects. Large numbers were incarcerated at Guantanamo Cuba without judicial review.

This was a mistake. Slowly but relentlessly, the U.S. judicial branch, culminating in the Supreme Court has reconfirmed that basic human rights are universal, and Guantanamo prisoners are entitled to some form of due process.

The U.S. military has effectively reinforced the point. Military lawyers balked, and some talked to the media, to protest absence of due process. The current 2006 edition of U.S. Army Field Manual (FM) 2-22.3 entitled "Human Intelligence Collector Operations" explicitly prohibits torture and other abuse.

A proposed version of this manual would have included a classified section with instructions on how to torture prisoners. This was vetoed after lengthy, extremely intense internal struggle, in which the military was able eventually to overcome Secretary Rumsfeld.

Not surprisingly, the United States has played a major role in developing laws of warfare. During the Civil War, Professor Francis Liever of Columbia Law School, military adviser to President Lincoln, wrote a treatise promulgated in 1863 as General Orders 100 and used for decades afterward. The orders describe rights of noncombatants, partisans, prisoners and spies, along with prohibited weapons, such as poison.

Lieber, a German veteran of the Napoleonic wars, knew war intimately. Two sons served in the Union Army and one with Confederate forces, where he was killed.

The American legal example encouraged the 1899 Hague Convention on "Laws and Customs of War on Land," followed by the Geneva Conventions. After World War II, these conventions were expanded.

Mondern unconventional conflicts with guerillas as well as terrorists have provided vexing challenges. In the early 1970s, I graduated from the Army infantry officers' school at Fort Benning. Lt. William Calley, convicted of murder in the My Lai massacre in Vietnam, was under house arrest on the post. Later, President Nixon pardoned him.

One training film from earlier in the war showed an American officer forcing a peasant to precede him into a tunnel. After the film, our instructor stated that behavior was prohibited.

A more recent film featured a heroic black sergeant. When his commander tried to force a peasant to lead the way into a minefield, this Pentagon Sidney Poitier volunteered to go himself instead. The audience laughed, appropriately.

War at best is morally ambiguous, and our values require honest debate about methods. Be attentive to unfolding debate over the Senate report, including the forceful rebuttals.

Lake Effect essayist and foreign policy contributor Art Cyr is Professor of Political Economy and World Business and the Director of the A.W. Claussen Center for World Business at Carthage College in Kenosha.

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Arthur I. Cyr is Director of the Clausen Center for World Business and Clausen Distinguished Professor at Carthage College in Kenosha. Previously he was President of the Chicago World Trade Center, the Vice President of the Chicago Council on Foreign Relations, a faculty member and executive at UCLA, and an executive at the Ford Foundation. His publications include the book After the Cold War - American Foreign Policy, Europe and Asia (Macmillan and NYU Press).