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How Not to Ban Torture in Congress

The Bush legacy of legalized abuse and why the McCain ban won't work

| Wed Feb. 8, 2006 4:00 AM EST

Two years later, when the infamous photos from Iraq's Abu Ghraib prison exposed the administration's illegal interrogation tactics in lurid color, the White House was faced with an historic choice that, in practice, proved no choice at all: either definitively ban torture or defy the international community by promoting the practice.

Bartering Away Legal Birthrights

That the upper deliberative bodies of the United States and Great Britain found themselves facing the question of torture at exactly the same moment had a certain ironic appropriateness. After all, the two countries share a secret history of torture reaching back to the dark early days of the Cold War. In 1951, these two nations collaborated in a covert CIA-run mind-control research project into which the American government ultimately poured several billion dollars. Late in that decade, CIA scientists elaborated that research into a revolutionary new form of torture, more psychological than physical, that would prove both legally elusive and highly destructive to the human psyche.

Even though this "no-touch" psychological form of torture generally did greater lasting damage than its physical variant, it was surrounded by an appealing scientific aura and was, at least in theory, devoid of the obvious signs of brutality that might trouble the public and provide telling evidence for prosecutors.

For the next 20 years, Washington deployed these torture techniques against communists and other revolutionaries in Asia and Latin America. Simultaneously, London used them to fight nationalists in its far-flung territories during the long, bloody eclipse of the British empire -- in places like Aden, Brunei, British Guiana, and Northern Ireland.

In 1978, charged before the European Court of Human Rights with torturing IRA suspects, Britain swore "a solemn undertaking" that it would never again deploy these psychological torture techniques. Last month, in reversing the deportations of Muslims convicted on "evidence procured by torture inflicted by foreign officials," London's law lords cited this case in ruling that "bedrock moral principle" from centuries of common law and recent international conventions made torture anathema in the country's courts.

By contrast, confronted with strong evidence of detainee abuse at Abu Ghraib and Guantanamo, the Bush White House has fought back by defending torture as a presidential prerogative and so precipitating an epic political struggle in this country. As a powerfully symbolic state practice, synonymous with brutal autocrats, torture, even of the few, raises profound moral and legal questions about the limits of presidential power, the quality of our justice, and ultimately the character of this American civilization.

While the Bush White House has protected and promoted senior officials implicated in the torture scandal, an ad hoc civil-society coalition of courts, media, and human rights groups has mobilized to stop the abuse. In June 2004, the Supreme Court ruled in a landmark case, Rasul v. Bush, that the Guantanamo detainees were indeed on U.S. territory, no matter what the administration's lawyers claimed, and so deserved access to American courts. This decision prompted some of the country's top law firms, working pro bono, to file 160 habeas corpus cases on behalf of some 300 Guantanamo detainees.

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