Sanctioning Torture Undermines Due Process in the United States

On August 8, 2019, Kary Antholis, host of the podcast Crime Story, interviewed current US Attorney General William Barr about the criminal justice system. In the conversation Barr revealed his definition of “justice” by discussing Clint Eastwood’s 1971 film, Dirty Harry.

“There’s that scene in Dirty Harry,” he said, “where ... [this] guy has kidnapped somebody ... .

Dirty Harry asks, ‘Where is she?’ And the other guy smirks at him and [Dirty Harry] shoots him in the leg ... and the guy tells him [the information]. I say, now, was that an unjust or morally repellent act? Is the reason that the audience applauds when that happens because the audience is morally bankrupt,” Barr asks incredulously. “Or is there something else going on there?”

Barr’s revisionist history of mass incarceration is troubling. But the fact that the US attorney general favors illegal and brutal acts by law enforcement in the name of “justice,” over due process, should frighten us all. We must not assume that Barr is an outlier in his thinking. In all likelihood he was appointed precisely because of what he believes. Barr is symptomatic of a wider problem: the “Dirty Harrification” of criminal justice is becoming increasingly normalized.

In early 2017, during his first interview after his inauguration, Donald Trump told ABC News anchor David Muir: “I have spoken as recently as 24 hours ago with people at the highest level of intelligence, and I asked them the question, ‘Does it work? Does torture work?’ And the answer was ‘Yes, absolutely.’”

Trump clarified his position during the same interview. Speaking about the Islamic State in Iraq and Syria (ISIS), he stated: “When they’re chopping off the heads of our people ... because they happen to be a Christian in the Middle East ... would I feel strongly about waterboarding? As far as I’m concerned we have to fight fire with fire.”

Trump’s statements on torture may strike us as banal given the sheer exhaustion of the twenty-four-hour news cycle. We have become so accustomed to this president making one racist, Islamophobic, and otherwise xenophobic statement after another that his comments on torture may barely even register. But it is important to realize that the idea of torture as a necessary evil in an increasingly dangerous world is consistent with CIA torture program under George W. Bush, and with the way the Obama administration targeted Muslims for detention at black sites like Guantánamo Bay.

The recent history of torture during the War on Terror tells us a great deal about what this country views as threatening and how much our society is willing to compromise its ideals to defend itself against threats. Since becoming president, Trump has not only appointed Barr as attorney general, but he also installed Gina Haspel as CIA director. Haspel formerly served as the chief of a CIA black site in Thailand where prisoners were subjected to “enhanced interrogation techniques” that resulted in a host of human rights violations. Her role in torturing terrorism suspects and then destroying evidence of torture did not rule her out for her current position. This speaks to how acceptable torture in our country actually is.

Trump’s appointments of like-minded bureaucrats to further erode due process within the US legal system betray the belief that torture is a necessary evil. The Trump administration’s presumption of guilt justifies extrajudicial force. The president promises to refill detention facilities like Guantánamo Bay and that he will create even more black sites. His rhetoric differs from previous administrations because he has stripped away the veneer of progress and pushed for torture to seem acceptable — even good. But aside from his rhetoric, how much have the policies on torture in the United States actually changed? The answer to the question is, not all that much, especially when it comes to punishing torturers.

Trump should not take all the blame for the US government’s current embrace of torture. As president, Trump can reinstate torture without fear of repercussion, in part because the US government has successfully blocked the release of information in the past that would place law enforcement personnel who engage in torture at risk of prosecution. Both the Bush and Obama administrations used claims of secrecy to dismiss lawsuits by survivors of torture, arguing that such information needed to be kept secret as a matter of national security.

Thus, even after various lawsuits against the “architects and perpetrators of the CIA torture program” during the time Bush and Obama held office, US courts did not consider the claims of a single torture victim, as Dror Ladin, attorney for the ACLU National Security Project recently noted. The US government has repeatedly argued that the litigation itself would undermine national security. Instead of prosecuting torturers, the Obama administration attempted to mollify critics by using executive orders to shut down black sites or releasing detainees from places like Guantánamo Bay.

The problem with this approach is that it does nothing to prevent future administrations from reopening black sites or extolling the merits of torture. Had President Obama sought to hold high-level Bush officials accountable, for example, legal precedent for the kind of punishment a torturer could expect to face would at least exist. Unfortunately, it now does not. Therefore, we have no reason to expect that government officials who perpetuate torture will not continue to do so.

This is a crucial mistake. By failing to hold torturers accountable, this country is effectively auditioning US law enforcement officials for the role of Dirty Harry. For those of us living in the United States who are invested in seeing change, we cannot normalize revenge fantasies or excuse extrajudicial violence in the name of the greater good. We must instead speak with greater courage and conviction about injustices within the US and beyond. We must stand in solidarity with the struggle to hold law enforcement accountable for breaking the law. Against the systematic attack against due process, our collective conscience must be our guide.

About the Author

Laurence Ralph is a Professor Anthropology at Princeton University. He is the author of Renegade Dreams: Living Through Injury in Gangland Chicago (University of Chicago Press, 2014). The book received the C. Wright Mills Award from the Society for the Study of Social Problems (SSSP) in 2015. His latest book, The Torture Letters: Reckoning with Police Violence (University of Chicago Press, 2019) chronicles the history of torture in Chicago, the burgeoning activist movement against police violence, and the American public’s complicity in perpetuating torture at home and abroad.