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Technically speaking, torture is still against the law. The words are still there, in Title 18 of the U.S. Code:
“Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.”
But thanks in part to President Barack Obama, those words have all the relevance of an archaic law prohibiting pig-selling on Sunday. They mean nothing.
Publicly, Obama claims America has changed course. On his first day in office, he signed an executive order halting “enhanced interrogations.” But that did not restore the rule of law; it weakened it further. If one executive order can ban torture, as Obama claims, then another such order can restore it, simple as that.
And let’s at least be honest — what we have done is torture, sanctioned at the highest levels of government and at least tacitly accepted if not explicitly endorsed by Congress, including leading Democrats. Let’s at least have the moral courage to acknowledge that fact.
In World War II, waterboarding was torture when Japanese soldiers inflicted it on Americans such as Lt. Chase Jay Nielsen, captured in the famous Doolittle Raid on Tokyo. In a tactic that sounds all too familiar, the Japanese claimed the treatment was legal because Nielsen was a war criminal not entitled to protection as a prisoner of war. In later war-crime trials, that defense failed.
To Lt. Col. William Harrison, it was torture when inflicted by North Korean Communists.
“They used the water treatment. They would bend my head back, put a towel over my face and pour water over the towel. I could not breathe. This went on for hour after, day after day. It was freezing cold. When I would pass out, they would shake me and begin again. They would leave me tied to the chair with the water freezing on and around me.”
That is not “fraternity hazing.” It is torture. If it is torture when inflicted on Americans by others, it is torture when we Americans do it. We torture. In the eyes of the world and whatever God you might worship, we torture.
That is difficult for many to accept because we are Americans and we are supposed to be different: Our strength is in our principles and commitment to values.
But what did it take to make us throw all that away? Nineteen men armed with a plan and box cutters?
That is Osama bin Laden’s victory: He scared us into fleeing the high ground.
“All these things vanished when the Mujahideen hit you, and you then implemented the methods of the same documented governments that you used to curse,” bin Laden chortled in 2002. “… What happens in Guantanamo is a historical embarrassment to America and its values, and it screams into your faces: ‘You hypocrites, what is the value of your signature on any agreement or treaty?’ ”
As bin Laden understands, the biggest canard of all is that the strong are willing to torture, to do what is necessary, while the weak shy from it. It takes no toughness to order the torture of a creature who is helpless to defend himself, a creature over whom you have absolute control. To the contrary, you torture because you fear that helpless creature — you do so because your fear is greater than the principles of civilization you tell yourselves you are defending.
On the eve of our invasion of Iraq, President Bush issued a warning to the Iraqi military: “War crimes will be prosecuted, war criminals will be punished and it will be no defense to say, ‘I was just following orders.’ ”
If a president is to have the credibility make such statements again, we have to restore the rule of law. We should do so not through a criminal probe of what individuals may have done — creating legal scapegoats for a policy that too many supported for too long — but with a candid, nonpartisan investigation of what we did as a nation. Rather than block such a probe, Obama should insist upon it.