11/12/2007 10:31 am ET | Updated May 25, 2011

Torture American Style

One of the many genuine tragedies that have come out of the Bush Administration's maladroit handling of the past six years has been the transformation of the United States into a pariah among nations. American democracy has always had its flaws, but the country was truly viewed by many around the world as "the shining city upon a hill" rhetorically much loved by Ronald Reagan. Confronted only by a Democratic congress that is too terrorized and internally riven to pose any obstacle and a tame press, the White House now appears hell bent on a course that can only add new embarrassments during the fourteen months that George Bush and Dick Cheney will continue to be in power.

The disregard for the values that once made America a beacon to mankind has been nowhere more evident than in the approval of Michael Mukasey as Attorney General of the United States. Mukasey refused to call simulating drowning or waterboarding torture when confronted by a limp wristed congressional attempt to have him define and thereby eliminate the practice. He was let off the hook and given the majority needed for approval by the Judiciary Committee's Democratic Senators Charles Schumer of New York and Dianne Feinstein of California, who broke ranks with fellow Democrats to approve the nomination. As Mukasey, Schumer, and Feinstein are all Jewish one would have hoped that they might have paid more attention to issuing a free pass on the torture issue given its historical antecedents. In particular, they should perhaps study the Nuremberg War Crimes Trials to learn how the Nazis institutionalized torture as part of the judicial system, acceptance of torture being just one part of an institutional mindset that led to much greater horrors.

Schumer and Feinstein might profitably recall that the United States defeated Nazi Germany, Imperial Japan, and Communist Russia without having to torture anyone and without suspending the constitution. Nineteen fanatics crashing planes into buildings should not have resulted in a trashing of the rule of law, but apparently it has, at least for some people. The changes that have taken place have made official Washington adhere closer to the values that drove the occupants of the Reich Chancellery in Berlin than to the Founding Fathers, whose declaration of independence cited a "decent respect for the opinions of mankind." Instead of adhering to a constitution that guaranteed liberties, the Germans in the 1930s adopted a principle of government that placed the country's leadership above the law. It was called the Fuhrerprinzip or "leadership principle" and basically said that a leader is answerable to no one and can be relied upon to do what is good for the country, even when he violates the law or constitution. This is more-or-less the operating principle of today's "unitary executive" which has determined that the torture of "enemy combatants" is an acceptable practice. The increasing tendency to designate critics as enemies or as allies of terrorists in the current political debate in the United States, insofar as there is one, suggests that the worldview of 1936 Berlin is not so far removed from that of 2007 Washington.

It might be argued that the United States made a deliberate decision to turn down the road leading to torture and other abuse immediately after 9/11. In May 2002 the White House withdrew from a 1998 agreement to participate in the establishment of an International Criminal Court that would be empowered to prosecute war crimes, genocide, and other crimes against humanity. The Bush Administration's argument that the court would diminish US sovereignty and lead to frivolous prosecution of American soldiers, diplomats, and government officials was a red herring at the time because there were safeguards built into the court's guidelines preventing such action. Every European country has ratified the statute creating the court and no nation has complained that it has resulted in unjustified prosecutions. Given subsequent developments, it is likely that even in early 2002 the White House was sensitive to possible charges that it was engaging in war crimes connected with the "global war on terror" and was seeking to shield senior officials from possible prosecution. Vice President Dick Cheney openly spoke of going over to the "dark side" in prosecuting the war against the Islamists, signaling that international rules for behavior were made to be broken.

As history often repeats itself, the Nazis even had an expression for today's "enhanced interrogations", "Versharfte Vernehmung", which means "intensified questioning." As practiced by the Gestapo, it generally left no permanent marks and relied on physical stress, hypothermia, simulated drowning, and sleep deprivation. The United States dominated the Nuremberg Tribunal and did not buy the argument made by lawyers of accused Nazis that the torture was not really torture and that the prisoners - largely civilians who had been in the various European resistance movements fighting against the German occupation - had no rights as they were not soldiers. Today the fashionable dehumanizing expression is "enemy combatants," but the assertion that they have no legal rights remains the same. The Nuremberg judges ruled that any and all prisoners must be treated humanely and that any "severe mental or physical pain or suffering" was torture and that to commit torture is to carry out a war crime. The penalty inflicted on a number of Nazis who were found guilty of torture, most of whom were Gestapo officers, was death.

Reports from Guantanamo and Abu Ghraib suggest that torture of terrorism suspects has been a deliberate policy of the Bush White House. Beatings and sexual abuse were the common fare at Abu Ghraib. At Guantanamo the process has been more sophisticated. Prisoners have reportedly been soaked in cold water and placed into freezing rooms where they eventually pass out, only to be revived and subjected to the same treatment again. The benign sounding sleep deprivation is anything but. A US prisoner in the Hanoi Hilton during the Vietnam War was deprived of sleep for more than twenty days. During that time he was often delirious and subject to physical convulsions. And then there is waterboarding. It simulates drowning, which is physically and mentally like dying.

The neoconservatives who provided the media and think tank arguments that have led to many of today's horrors are fond of comparing the present crisis to the historical events of 1938, when the world failed to confront tyranny. The historical analogy is correct in principle, but it may really be 1946, when the international community began to become aware of the abominations that had taken place over the previous ten years and resolved to do something about it. Hopefully it is not too late for the United States to realize that it has been going down the wrong road, but it will require the Schumers, Feinsteins, and Pelosis of this world to develop a moral compass linked to a little backbone to bring about the much needed changes that will restore our constitution and our liberties. A return to sanity will now be that much more difficult with torture-denier Michael Mukasey as Attorney General.