“The United States has long resorted to torture,” writes political scientist Robert Pallitto in the introduction to his collection of original source documents titled Torture and State Violence in the United States. “Thus, the question is not whether to resort to torture in the future, but whether to continue torturing, given what we know about its efficacy, its costs, the feasibility of controlling ‘mission creep’, and, last but not least, the plausibility of ‘ticking time bomb’ situations.”
When the U.S. media holds debates about the state using torture to gather evidence or intelligence, the questions tend to be framed hypothetically, as if it is a practice the government might possibly resort to in the future. Pallitto’s collection of official documents destroys this misperception. In reality, torture has been used by government actors in the United States since colonial times.
In 1641, for instance, the Massachusetts Body of Liberties stated that a convicted criminal “may be tortured” if he is found guilty of a capital case, but not with “such tortures as be barbarous and inhumane”. This sounds strange to modern readers because the meaning of “torture” has shifted over time to imply “inhumane” by definition rather than a category of actions that could be considered inhumane or not.
Pallitto starts from the colonial Body of Liberties and presents a wide variety of examples of state-sanctioned torture in the United States. There are records of judicial interpretations of “cruel and unusual” from the late 1700s and early 1800s, runaway slave laws, and conflicting accounts of war crimes against Native American civilians. The book also includes accounts of the Confederate prison at Andersonville, the inhumane practices at Folsom Prison in California, racially oppressive Jim Crow laws, and prison execution policies in the 20th century.
The 1984 Convention Against Torture goes beyond defining torture simply as inhumane and narrows the definition of torture to illegal torture. According to this interpretation, any action that is made legal is by definition not torture.
The problem with creating a precise legal definition for torture is “mission creep,” the phenomenon in which agents explore everything up to the definition and around it. The Jay Bybee memo from 2002, for instance, drew the line at “the level of death, organ failure or the permanent impairment of a significant bodily function.” Even then, an act would only be considered torture if the interrogator had “specific intent” to inflict that degree of pain.
In the 2007 case El-Masri v. US, Macedonian officials handed over to the CIA a German citizen of Lebanese descent in 2003. The CIA held him for almost five months without charge in Afghanistan and subjected him to torture. The court threw out his case because, apparently, they could not investigate whether the agents had tortured him without revealing state secrets about how the CIA was staffed and organized. In a similar case in 2009, Arar v. Ashcroft, in which a Canadian citizen was taken in 2002 from New York to Syria and tortured for ten months, the court dismissed charges but offered the victim no reparations.
FBI Agent Ali Soufan testified in 2009 that he opposed coercive interrogation or torture on both moral and practical grounds. His testimony indicates that the FBI policy calls for knowledge-based interrogation, which builds a connection with the detainee and elicits voluntary responses in contrast to the coercive interrogation used by the CIA that increases hostility and seeks to break the spirit of the detainee.
In 2009, President Obama issued a memo and an executive order that revoked all previous policies allowing torture beyond what was allowed in the Army Field Manual, which references the Geneva Conventions. However, Obama indicated that he supports “maintaining the classified nature of secret activities,” which arguably makes the prohibition of torture very difficult to enforce if it is committed by agents protected by state secrets.
“It is my hope,” Pallitto concludes, “that the documents presented in this book will aid us in building a conversation about what has been done, what is being done, and what will be done through exercise of state power — and that in such a conversation the voices of the victims will assume a prominent place.”