Let’s face it. The real question is not whether you would torture, because you would.
If you believed that a nuclear device was in the center of New York City and that torturing the suspect was the only way to stop that bomb from detonating, you would do anything in your power to get the information you needed. If your family’s lives were in danger, you would say or do anything you needed to save them.
The Fifth Amendment was drafted by our founders because of the simple fact that someone will say or do anything you need them to say or do if enough duress and coercion are applied.
The concept that we must not be forced into testifying against ourselves is a cornerstone of our constitutional freedoms. It is not a loophole, not a lawyer’s trick, but a fundamental guarantee to protect all of us. That is simply because most people will lie to stop torture. Even those few who are strong enough not to succumb for their own safety will almost certainly break to protect a loved one – especially a child, a spouse or a parent.
In addition to the fact that any lie produced by such indefensible conduct would be worthless, there also is an underlying concern that the dignity of our country relies on the fact that the government will conduct itself within the bounds of decency and civility. Without such a safeguard, our civilization crumbles into chaos, anarchy and rampant violence.
Those two concepts, actually, are inextricably intertwined. Although our basic instincts are such that we would do anything necessary to obtain any information that could stop the detonation of the bomb I mentioned, the concept that, at some point, anyone will break down and confess to a crime that he or she did not commit, giving any information needed to stop the torture, means we have two separate problems.
The first is that our baser instincts must be kept in check if we are to continue to enjoy the freedoms inherent in our democracy, born out of the Revolution, the Constitution and, especially, the Bill of Rights.
The second is that we know duress leads to falsehoods and confessions to virtually anything a tormentor wishes to be said. Coupled with recent reports about the success we were seeing without resorting to torture – and that, once torture began, useful information dried up – the inescapable conclusion is that torture is far less likely to yield the truth than more sophisticated and skillful methods of interrogation.
The use of torture not only disregards the necessary bounds of decency and human interaction. We wish to be governed by basic Constitutional principles. Therefore we must hold the line regarding the prosecution of citizens as proof that the government can independently produce intelligence without violating the basic safeguards of the Bill of Rights. We especially must prohibit the forcing of an accused to testify against himself unless he freely chooses to do so.
It is of great importance to note that the program now being touted by the prior administration as “productive” was fashioned after a Chinese program of torture designed only to obtain false confessions for use in propaganda, not to obtain the truth about anything.
Even the remote possibility that the government was trying to learn information that would advance unpopular agendas – such as justifications for going to war – is bone-chilling. More horrific is the fact that, somehow, we became a country that sanctioned renditions and secret prisons.
Think of that concept – secret prisons.
Another problem is about to arise. If you think that horrific renditions or “enhanced interrogation techniques” – read, torture – happen only in secret prisons overseas, then you have failed to truly ask yourself what has happened to U.S. citizens, some of whom have been locked away without attorneys and, thanks to the previous administration’s policies, without the basic fundamental right to habeas corpus. What do you really think was done to them? You might want to brace yourself as the story continues to unfold.
The excuses being offered by Cheney, et al., are disingenuous and serve only to prey on Americans’ baser instincts and fears, and the need to protect ourselves and our loved ones. They fail to address the failures of such techniques, the degradation of our basic civility as a society and the fact that many are now suggesting the entire program was merely a ruse of an inhumane and corrupt part of our government to obtain information that was politically expedient, not really intended to find the truth.
Robert L. Brenna Jr. is a partner in the Rochester law firm of Brenna, Brenna & Boyce, which his father founded. He also hosts a Sunday morning radio program, “The Brenna & Brenna Law Forum,” online at www.wham1180.com.