John Ashcroft, former U.S. Senator as well as Attorney General, has been featured in congressional hearings on use of torture during his tenure at Justice. Democrats have stressed immorality of torture, in particular waterboarding, while Republicans rejoin that such painful practices have prevented a second 9/11.
Old-school Ashcroft has been courteous but also blunt that political posturing in this forum does not help national security. Democrats have emphasized memoranda condoning torture, drafted at least in part by Justice staffer John Yoo and pressed on Attorney General Ashcroft while hospitalized. Ashcroft refused to approve the memos, but in the hearings sidestepped criticizing former colleagues.
More important than such politics, in reality the United States is moving away from condoning torture. The U.S. Army recently revised Field Manual 2-22.3 "Human Intelligence Collector Operations" to include the explicit prohibition of torture and other abuse. A proposed version of the manual would have included a classified how-to section on use of torture. That proposal was rejected.
Historically, the United States has played a major role in developing the laws of warfare. During the Civil War, Francis Lieber of Columbia Law School, a military adviser to President Abraham Lincoln, wrote a treatise on the subject. The document, promulgated in 1863 as General Orders 100, was used for half a century. The orders described the rights of noncombatants, partisans, prisoners and spies, along with prohibited weapons such as poisons. The Lincoln administration, which unleashed enormous military force against the economic infrastructure of the South, also sought to limit unnecessary cruelty and destruction.
Professor Lieber knew combat first-hand. A German veteran of the Napoleonic wars, one of his sons fought for the Confederacy while two served in the Union Army. The Confederate was killed; another son lost an arm.
The American example encouraged the 1899 Hague Convention on "Laws and Customs of War on Land," followed by the Geneva Conventions. During World War II, Allied leaders Winston Churchill and Franklin D. Roosevelt emphasized applying the laws to war, which in turn led to substantial expansion of the Geneva Conventions in 1949.
In 1972 I graduated from the Army’s Infantry Officers Basic Course at Fort Benning, Ga. There was considerable concern about the My Lai massacre in Vietnam. Lt. William Calley, leader of the platoon involved, was under house arrest on the post, convicted of murder.
One training film, a low-budget effort from earlier in the war, showed an American officer forcing a peasant to go into a tunnel ahead of him. After the lights came on, our instructor noted that such behavior was no longer condoned. A more contemporary color film featured a heroic black sergeant. When his commander tried to send a peasant into a minefield, this Pentagon Sidney Poitier volunteered to go instead. The audience laughed, an appropriate reaction to such implausible melodrama. The Army nonetheless was trying to communicate a very valid point, however heavy-handed the approach.
Meanwhile, the U.S. military was suffering terrible morale, drug, race and discipline problems, directly related to Vietnam. Recovery took a long time.
That unconventional revolutionary war presented distinctive problems, requiring in turn a special emphasis on ethics as part of the antidote. John McCain, tortured as a POW in the Hanoi Hilton prison, has been outspoken in opposition to torture of prisoners. Barack Obama has a similar view.
John Yoo, now a law professor at the University of California at Berkeley, is usually mentioned in the media in connection with torture. However, his 2005 book "The Powers of War and Peace" develops the importance of the rule of law, international as well as domestic, in armed conflict.
(Arthur I. Cyr is Clausen Distinguished Professor at Carthage College and author of ‘After the Cold War’ (NYU Press and Palgrave/Macmillan). He can be reached at acyr(at)carthage.edu.)
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