Morality, torture and the law

Barbarism and the law collide in war. Armed conflict is inherently terribly destructive. The law is a vital tool for mitigating the most brutal aspects of war. Both dimensions are present in the intensely politicized debate in Washington about torture.

Anti-war Democrats have pressed for release of classified information. Republican counterattacks include accusations that Democrats were fully briefed on use of waterboarding on prisoners during the Bush administration. House Speaker Nancy Pelosi denies this.

The debate does not divide strictly along partisan lines. Sen. John McCain of Arizona, the former GOP presidential nominee, has been a very visible, outspoken opponent of torture, which he suffered firsthand as a longtime prisoner in the infamous "Hanoi Hilton" during the Vietnam War.

The current debate directly reflects decisions by the Bush administration, which following the 9/11 terrorist attacks defended the use of torture — euphemistically described as "enhanced interrogation" — in the struggle with al Qaeda. Then-Secretary of Defense Donald Rumsfeld and others argued that neither the Geneva Conventions nor U.S. law applied to terrorist suspects; large numbers were incarcerated at Guantanamo Bay, Cuba, without recourse to judicial appeal or review.

This was a political as well as a moral mistake. Slowly but explicitly, the U.S. judicial branch culminating in the Supreme Court has determined unequivocally that basic human rights are universal, and that Guantanamo prisoners must be provided some form of legal due process.

The U.S. military has very effectively reinforced the point. Military lawyers have balked, and some have gone public, to protest the absence of due process. The 2006 edition of the U.S. Army Field Manual (FM) 2-22.3, titled "Human Intelligence Collector Operations," explicitly prohibits torture and other abuse.

A proposed version of this manual would have included a classified section with instructions on how to torture prisoners. This was vetoed after very intense internal debate, in which the military was able in effect to overrule Rumsfeld.

Historically, the United States has played a major role in developing laws of warfare. This is no surprise, given the ethical grounding of our Constitution. During the Civil War, Francis Lieber of Columbia Law School, a military adviser to President Abraham Lincoln, wrote a treatise promulgated in 1863 as General Orders 100 and used for a half-century. The orders described the rights of noncombatants, partisans, prisoners and spies, along with prohibited weapons, such as poisons.

Lieber, a German veteran of the Napoleonic wars, knew combat intimately. 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 Roosevelt emphasized applying law to war, directly reflected after the war in the Nuremberg and Japan war-crimes tribunals and substantial expansion of the Geneva Conventions.

If clarity of commitment by then-President Bush and Rumsfeld to torture was undeniable, though described with linguistic legerdemain, the Obama administration so far has been awkwardly ambivalent. After releasing classified details about Bush administration discussions, the White House has now backed off releasing graphic photos of prisoners held in U.S. custody. Reportedly, CIA Director Leon Panetta and other officials have strenuously opposed the release of this classified information.

Obama has yet to provide persuasive justification for his fitful footsteps. A brilliant presidential candidate, in this matter he has not demonstrated presidential leadership.

(Arthur I. Cyr is Clausen Distinguished Professor at Carthage College and author of "After the Cold War" (NYU Press and Macmillan/Palgrave). E-mail him at acyr(at)