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Beinhart's Body Politic: That Pesky Torture Report 

I would like to thank the outgoing Democratic Senate for their gift to the nation, the Committee Study of the Central Intelligence Agency's Detention and Interrogation Program, otherwise known as The Torture Report.

James Mitchell, the man who water-boarded Khalid Sheik Mohammed, claims that what he did could not be torture because "if it was torture, I would be in jail." The logic is magical. It's Merlin. It's Harry Potter. Expect your 10-year-old to think, "Taking money from my mother's purse can't be bad, I'm not in a time-out." A few years later, "Cocaine must be legal, or I'd be under arrest." When they themselves are parents: "Adultery's fine, otherwise I'd be divorced." And, of course, "Cops killing blacks can't be murder, they always get off."

Dick Cheney says it was all legal because lawyers wrote memos that said it would be. The US led the Nuremberg Trials, signed all the Geneva Conventions and the UN Convention Against Torture, and has its own War Crimes Act, so the legal reasoning was, of necessity, torturous.

The memos assert that presidential power in wartime trumps any and all other laws, including the Constitution. Anyone acting on presidential orders is an extension of the president, and therefore can't be guilty. "I was only following orders," the slogan of Nazi war criminals, was reconstituted as a valid defense.

The grand excuse for torture is necessity. Antonin Scalia said, "It's very facile for people to say, 'Oh, torture is terrible.' You posit the situation where a person that you know for sure knows the location of a nuclear bomb that has been planted in Los Angeles and will kill millions of people. You think it's an easy question? You think it's clear that you cannot use extreme measures to get that information out of that person?" Who is Scalia? He is a justice on the United States Supreme Court. What precedent does he cite? The TV show "24."

There are two big problems with this. The first is Antonin Scalia. He believes that government "derives its authority from God." That should create severe cognitive dissonance because the very first sentence of the Constitution says, "We the people...do ordain and establish this Constitution," along with the very secular reasons for doing so. Which is a sideways way of saying that Scalia is disingenuous, delusional, or a religious loon.

That, in turn, explains the second problem. The theory is based totally on fiction. There is no known real world event in which a real-life Jack Bauer—yes, Scalia has cited Jack Bauer by name—tortured the truth out of a mad bomber and saved Los Angeles, or Bensonhurst, or even a street corner of western Saugerties. The American War Crimes Act, 18 USC §§ 2340; 2340A, which includes the Convention Against Torture, anticipated the temptation of the Jack Bauer-Antonin Scalia fiction-panic scenario. It explicitly states: "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture."

Soft-boiled critics of the report say that it contains nothing new. But it does. It uses the actual word "torture" instead of "enhanced" or "harsh" interrogation. Which forced Barak Obama to use the T word, breaking the soft-core, fuzz-brain silence. Until that moment, we had been living in a world in which our leading news outlets, including, and perhaps especially, the August New York Times*, participated in an unspoken conspiracy of euphemism, a cozy cuddle up with uniformed consent.

There are many claims that torture foiled dastardly plots or led to the capture of despicable subhumans. The Committee examined each one in detail. It discovered that any useful information had been gathered either before or without torture. There has not been one single documented instance that proves that all this torture worked.

The report puts them all in one document. So that we can't pretend when we see one claim has been dismissed, that there are lots of others. Unless, of course, we want to. It enables any of us to say what the US Army Field Manual on Intelligence Interrogation had already said, long ago. "Experience indicates that the use of prohibited techniques is not necessary to gain the cooperation of interrogation sources. Use of torture and other illegal methods is a poor technique that yields unreliable results, may damage subsequent collection efforts, and can induce the source to say what he thinks the interrogator wants to hear."

Note the first two words, "experience indicates." Given our basic human reflex, that we can beat the truth out of anyone, lots of prisoners, hundreds, possibly thousands, were beaten and burnt and tormented in a variety of ways before anyone was willing to consider, let alone codify, that the "use of torture and other illegal methods is a poor technique that yields unreliable results." The news stories have revealed as much about the media, and about us as a people, as they have about the report itself. I have yet to see a story that mentions Nuremberg or our own War Crimes Act or the US Army Field Manual, revealing the inability of journalists to do any simple basic research of their own. They can only quote. Which is partly why many of the stories continue to use "harsh" or "enhanced" instead of the T word.

A few stories mention the most obvious standard. If these "techniques," including beating people to death, or letting a prisoner freeze to death, were applied to captive Americans, would we call them war crimes? Every article that I've seen that raises this question immediately goes into the litany that terrorists don't wear uniforms, they might not have countries, those not-countries have not signed the Geneva conventions or any other treaties, and they do horrible, terrible things, so the protection of laws, or humanity, or good sense do not apply to them.

Washington Post-ABC, and NBC-Wall Street Journal, among others, have polled us about the use of "harsh" techniques against "terrorists." The questions are formatted, like our collective minds, to separate out the word "torture," either by asking if the "techniques" might be torture separately from asking if the respondents approve of them, or by dropping the T word into a modifying clause, "Are the enhanced tactics, which have been defined as torture...." Overall, the majority of Americans approve of past torture and of continued torture.

There is, of course, breakdown by political orientation. Depending on which poll you choose, it appears that Democrats, by a slim margin, disapprove of torture. While between 85-90 percent of Republicans approve of torture. I so wanted to refrain from Republican bashing—I'm a good person; I wouldn't do such a thing—But 90 percent approve of torture. What? What am I to do? Invite them to an S&M club? Not one with pleasure, just with righteousness and pain.

* In the many years I've been writing this column two weeks before publication, this is the first time events have turned things around. On December 22,the New York Times ran an editorial calling for prosecution of the torturers and the men who sent them to it, including the lawyers. The editorial even mentioned that torture is prohibited by federal law and by treaty.

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