Torturing Our History

By Kowalski, Gary | Tikkun, September/October 2008 | Go to article overview

Torturing Our History


Kowalski, Gary, Tikkun


THE 8TH AMENDMENT TO THE CONSTITUTION PROHIBITS CRUELAND UNUSUAL punishment. Thanks to the founders (and especially to James Madison, who conjured the Bill of Rights), U.S. citizens need not fear judicially sanctioned impalements or being drawn-and-quartered in the public square... at least not yet.

The framers were especially sensitive to the issue of torture, since they were living in its shadow. Benjamin Franklin was born in 1706-just fourteen years after the trials at Salem, where for the crime of refusing to plead either "guilty" or "not guilty" to the charge of witchcraft, one of the accused, Giles Cory, had been crushed to death beneath a series of increasingly heavy stones, dying slowly over the course of two days.

So if the founders were careful to build into our legal framework safeguards against self-incrimination, as well as the rights to confront one's accusers in open court, counsel, jury trial, and protection from being burned alive or torn apart on the rack, it was for good reason. The Dark Ages were not so far in the past

Humane treatment of prisoners has deep roots in the United States, especially in wartime. During the War for Independence, enlisted men or captives lacking ransom value were frequently killed without tribunal on the field-regarded as the equivalent of insurgents by the English, who didn't recognize America as a sovereign nation or its soldiers as lawful adversaries. After capturing a thousand Hessian mercenaries at the battle of Trenton, George Washington vowed to behave better than the enemy and ordered his subordinates, "Treat them with humanity, and let them have no reason to Complain of our Copying the brutal example of the British Army," who were notorious for maltreating POWs aboard their prison ships, where more Americans died than on the battlefields.

The following year, John Adams, as chair of the Board of War and Ordnance, complained of hearing "continual accounts of the barbarities, the cruel murders in cold blood, even by the most tormenting ways of starving and freezing, committed by our enemies"reports that left him harrowed. Adams abhorred every form of cruelty, even toward animals and still more toward defenseless inmates. The British excused their abuse as a matter of military policy. But in a letter to his wife Abigail, Adams resolved to exercise "Yankee virtue" toward prisoners in American hands. "Piety, humanity and honesty are the best policy," he advised.

What would the founders say of George Bush, whose contention that he can strip any citizen of constitutional protections, simply by the executive fiat of designating them enemy combatants, has now been overruled by the courts? As Madison wrote in the Federalist No. 47, "The accumulation of all powers, legislative, executive, and Federalist judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."

Despite the President's insistence that our country "doesn't torture," hundreds held in Iraq, Afghanistan and at Guantanamo have died or been abused in U.S. custody, with fresh revelations pouring forth. Typical was the testimony of Murat Kurnaz, a former Gitmo inmate, who told Congress in May of 2008 not only of being punched in the stomach while his head was held under water, but also being shackled by his arms to the ceiling of an airplane hangar, shocked with electric prods, and subjected to temperature extremes. …

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