Discussions and debates about torture are all the rage. A recent academic article published by my alma mater, The Georgetown Law Journal, represents one of the first academic attempts to study how the law of torture has evolved in the United States. John T. Parry, Professor of Law, Lewis & Clark Law School, stated that torture “may be compatible with American values and practice and with the legal system we have constructed to serve those values.”

What some have called the “torture culture” began prior to September 11, 2001. The Bible addressed conduct during war, prohibiting Israelites from cutting down enemies’ fruit trees and mandating that a captive woman taken by a soldier had to be treated as a wife, with all the Israelite rights and privileges, or released. During the American Revolution George Washington followed a conspicuous policy of treating Britain’s Hessian mercenaries with kindness in the hope that they would turn on their former hosts and peaceably settle in America. In 1899 the United States was accused of a determination to kill every Filipino “in sight.” Using water as a form of torture was described by an American soldier in connection with 160 Filipinos during that same time frame. Protest followed by Massachusetts Senator George Hoar, who demanded an investigation. Future President and Chief Justice of the United States William Howard Taft admitted that U.S. forces had used “the water skewer” and other tactics to obtain information during the war in the Philippines.

Professor Parry details in over 230 footnotes the history of torture by the United States in a variety of settings including World War II, Vietnam and other public as well as covert operations. Between 1898 and 1934 the United States launched more than 30 military interventions in Latin America. Many of those interventions were to protect American interests in South America and assure access to information deemed to be useful to American interests. U.S. officials pioneered the torture by proxy approach in Latin America during that time frame.

Domestic torture was not unheard of either. The amount of police violence in connection with arrests in the United States is controversial. Recent Bureau of Justice statistics reported that, of deaths which occurred during arrest, 54.7% were homicides. The police contend that many of these deaths are necessary to protect the police officers, but there is a great deal of debate with respect to the great percentage where the homicides could not be reasonably explained.

Torture and violence in United States prisons has been well documented. If incarceration rates remain unchanged, an estimated 1 out of every 15 persons will serve time in a prison during their lifetime. Prison rape is a major problem in U.S. prisons, where it is blithely tolerated by authorities as “inevitable.” Political considerations have resulted in so many non-violent criminals being incarcerated that resources barely exist to address the physical needs of all prisoners, much less their safety from other inmates and the minority of brutal guards.

Aliens, immigrants and others who do not fall directly under the protection of the United States Constitution represent a shadowy population for which violence and torture statistics are harder to come by. The Convention Against Torture bans torture and provides no “derogation” from the ban. The United States signed the convention in 1988 and President Reagan submitted it to the Senate for its advice and consent. An administration memorandum accompanying the convention proposed reservations, understandings and restrictions including that the convention would not be “self-executing,” meaning that it would not be enforceable.

Likewise, the Bush administration asked the Senate to reopen its consideration of the International Covenant on Civil and Political Rights in order to express revised reservations, understandings and declarations. The administration was concerned about the sweep of restrictions on torture that the United States had agreed to. The Foreign Relations Committee unanimously recommended adoption of the reservations for the reasons suggested by the Bush Administration. The policy of “extraordinary rendition,” whereby people are seized in one country by or with the assistance of United States officials and sent to another country to be interrogated, follows a history of outsourcing torture to local, non-United States officials in Vietnam and Latin America. It is argued by some that this policy has its roots in the Clinton Administration.

Professor Parry concludes that interrogation and detention operations at Abu Ghraib Prison drew on prior precedents discussed in the Law Review article. Many of the military police who served as guards at Abu Ghraib worked in prisons. Some of the abuse that guards inflicted on prisoners derives from everyday violence, and sexual violence in U.S. prisons and in society at large.

The debate over water-boarding and whether to punish the perpetrators or higher echelon is a reflection of the societal debate as to what form of torture is acceptable to safeguard the United States interests and who should be accountable for violating self-imposed guidelines. Unless and until we develop enforceable guidelines, based upon measurable threats, the question of torture shall forever remain an ambiguous moral consideration of foreign and United States domestic policy.

Perhaps the good that can come out of the current debate on torture is to give the public a view as to the type of practices that have become routine in United States covert operations through proxies abroad, domestic police work and prison conditions in the United States.



Cliff Rieders, who practices law in Williamsport, is Past President of the Pennsylvania Trial Lawyers Association and a member of the Pennsylvania Patient Safety Authority. None of the opinions expressed necessarily represent the views of these organizations.