Jacob Heilbrunn

The Constitution Project's Vital Terrorism and Torture Report

With the terror attack in Boston, the debate about how to deal with the perpetrators (or perpetrator), whether domestic or foreign, is likely to acquire a new virulence. As terrible as the blasts in Boston are they pale in comparison to 9/11 or the threat of a nuclear detonation in a major American city. One of the debates that has roiled America is the issue of whether or not torture is an efficacious and necessary measure to combat terrorist acts.

Now a new report issued by the Constitution Project that appears today says that what occurred after September 11 was not only unprecedented, but also completely unjustified. I have not yet read the report, but judging by the excerpts that appear in the New York Times, it sounds wholly sensible. Read in the context of Russia's response to the Magnitsky Act, which included banning the authors of torture such as John Yoo from setting foot in the Russian motherland (a move that he seems to be taking in stride), it provides a further reminder of the degradation left behind by the George W. Bush administration, which claimed to be advancing democracy while acting undemocratically. The point would seem to be simple: you can't purport to stand for human rights abroad even as you systematically violate them. This legacy continues to haunt the CIA, which was suborned into acting illegally and whose new chief, John Brennan, now claims he can't really remember with any degree of exactitude what he did or did not witness during the Bush years.

What is novel about the Constitution Project's report is that it was headed by Asa Hutchinson, a Republican, and James R. Jones, a Democrat. It flatly states that America engaged in torture. The report notes that "as long as the debate continues, so too does the possiblity that the United States could again engage in torture." The report also suggests that the use of torture was analogous to one of the darkest passages in America history, the detention of Japanese Americans after World War II. "What was once generally taken to be understandable and justifiable behavior can later become a case of historical regret," the Times says the report concludes. There may be some truth to this.

But the detention of the Japanese Americans also had economic as well as racial motives—in California growers were eager to confiscate their farms, which they did. In both cases, however, it would be mistaken to exculpate officials at the time. There were protests in the Roosevelt administration and there were warning voices at the time in the Bush administration as well. It was high-ranking officials (John McCloy, the John Yoo of his day, in the then War Department) and vice president Dick Cheney and his neocon coterie who pushed through malignant policies that they claimed would help protect Americans even as they subverted constitutional liberties. It also seems clear that President Bush was not always aware of what was taking place in his name, as Barton Gellman's Angler, among other books, has revealed.

Where does President Obama fit into this tawdry saga? He has essentially held his nose when it comes to the torture issue. He stated at the outset that he wanted to "look forward." This was an evasion of his responsibilities. How can you know where you are without knowing where you came from?  So thanks to Obama's pusillanimity there has never been a national commission to study what went wrong

The lawless lawmakers, the proponents of torture—the Addingtons, Yoos, and Cheneys—will doubtless continue to asseverate that they acted, and would always advocate acting, to preserve American freedoms by endorsing the methods they employed to try and extort confessions and information from the bad guys. But apart from the question whether torture even elicits reliable information, it is staggering that they would conclude that it takes the Stalinist conveyor belt system of torture to safeguard the country. Perhaps the Constitution Project's timely report will help preserve us in the future from the fanatics who jeopardize what they purport to protect.