U.S. torture debate underscores shifting view on personal liberties

Torture, police excesses, 'felony creep.' For a country built around personal liberty and the rule of law, some things are surely changing, Neil Macdonald writes.

Torture, police excesses, 'felony creep,' all part of a trend

Lawyer Anuj Gupta holds a sign while participating in a "die-In" with fellow lawyers, law students, legal staff and victims of police brutality at the Stanley Mosk Courthouse in Los Angeles, in mid-December. (Reuters)

In America, you get a fair shake, or you're supposed to. Here, you're governed by law, not the whim of some swinish satrap.

America is not a place where peaceful dissent should cost you your freedom, or even your life. Americans don't live in terror of their security police.

All of this is arguably less true today than it was 20 years ago; it's certainly less true since Sept. 11, 2001.

Strangely, it is America's conservatives, the people to whom personal liberty is a supreme value, who seem most willing to give it away.

"If you aren't doing anything wrong, then you don't have anything to worry about," they say, while pushing new powers for law enforcement and the growing surveillance-industrial establishment.

That, of course, is the cheapjack police-state justification; the sort you hear in countries that are said to be "not ready for democracy." It is most un-American in spirit, but the law-and-order bunch doesn't see it that way.

Egged on by mostly Republican politicians, governments in this country have over-criminalized and over-incarcerated to an extent you would only expect to see in places like today's Egypt.

Minorities, without question, are disproportionate targets.

It should be no surprise, then, that the U.S. justice system is losing the consent of the governed.

Just look at the tens of thousands of people who have marched recently in the streets of major cities, protesting against police violence that even the normally pitiless federal justice department has described as out of control.

'Felony creep'

A staggering statistic is worth repeating here: America has five per cent of the world's population, but 25 per cent of its prisoners, according to the American Civil Liberties Union.

Most of those inmates' crimes were non-violent, and they were almost always pressured into accepting a deal by prosecutors who enjoy a conviction record of close to 100 per cent.

Tens of thousands of protesters, like this group marching in Midtown Manhattan, have taken to the streets of large U.S. cities to protest against the killings of unarmed black men by police officers and the absence of a judicial response. (REUTERS)

Trifling offences are now aggressively punished under the so-called "broken windows" doctrine of policing. Resisting, as recent events in Missouri and New York have demonstrated, can be suicidal.

At the same time, minor transgressions are increasingly being reclassified as serious crimes, creating the phenomenon known as "felony creep."

Lawmakers have also restricted the traditional discretion of judges.

American magistrates often have no choice but to send the wretches standing before them to prison; judges have wept in court as they passed sentence.

The civil libertarian Harvey Silverglate, among others, makes a convincing case that because of over-criminalization, most Americans regularly commit felonies, usually unwittingly, on a regular basis.

He cites, among several examples, the parent who finds and disposes of his child's marijuana stash (obstruction of justice); the employee who decides to take a phony "mental health day" and call in sick (honest services fraud).

Think about that: if for some reason some official takes a notion to target you, and deploys all the weapons available to law enforcement, you could end up behind bars.

This is a country that has sentenced children as young as 13 as adults, and put them away for life.

Guiding grand juries

America is also the only country in the free world that still routinely executes (disproportionately black and Latino) people, despite the overwhelming probability that some of them are innocent.

Sometimes those executions are more like butchery.

In a recent Oklahoma case, the presiding doctor missed a vein, injecting the poison into muscle and fat rather than the bloodstream.

When the prisoner began moaning and struggling, the warden ordered curtains drawn, rendering the witnesses unable to witness the ensuing piercing of an artery, a shower of blood, and finally, the condemned man expiring grotesquely of a heart attack.

But most frightening of all is that a crime in America seems to be becoming more what authorities say it is, rather than what the law says.

The most obvious example is the prosecutors who appear to have guided grand juries away from indicting police who killed unarmed citizens, even when there was no obvious need to deploy that kind of force.

Another would be the senior justice department officials who decided not to lay charges against the Wall Street bankers whose greed and corruption nearly wrecked the economy.

These execs, the government judged on its own, were too big to jail; doing so might have caused business failures and job losses.

Torture logic

And, most famously, the American presidents — one of whom authorized torture of captured enemies in secret offshore prisons, and his successor, who immediately broke his election promise to bring the torturers to justice.

After all, Barack Obama argued, the people who did the torturing and killing had been given official permission, and besides, he wanted "to look forward, not backward."

Obama also knew conservatives would not stand for any punishment of CIA agents who "kept America safe."

A new poll, in fact, suggests an overwhelming proportion of Republicans not only approve of the torture, but think it was a worthwhile intelligence-gathering device.

The psychologists who designed the torture program now live like the wealthy men they are, serene in the knowledge that the government has their back in the event of lawsuits.

Washington simply won't allow torture victims, even innocent ones, to sue.

Former Republican vice president Dick Cheney made a strong defence of the CIA use of torture in the wake of the Senate report. He even said at one point he was not concerned if some innocent people were mistakenly caught up in it. (The Associated Press)

One of those was Canadian citizen Maher Arar, falsely denounced and scooped up at a New York airport, then shipped by the CIA to Syria for some proxy torture.

Another was Khaled al-Masri, a German citizen who was beaten and sodomized in a CIA "black" prison until his captors realized they had the wrong Khaled al-Masri.

The U.S. justice department cited national security concerns to prevent both men from suing. To this day, Washington has refused to apologize or even officially acknowledge the abuse.

Freedom is the most important word in the American political vocabulary. It appears in foundational documents, history books, anthems and even on licence plates. Like New Hampshire's "Live Free or Die."

You have to wonder whether the people sporting those plates ever give any thought to what that slogan even means anymore.


Neil Macdonald is a former foreign correspondent and columnist for CBC News who has also worked in newspapers. He speaks English and French fluently, as well as some Arabic.


To encourage thoughtful and respectful conversations, first and last names will appear with each submission to CBC/Radio-Canada's online communities (except in children and youth-oriented communities). Pseudonyms will no longer be permitted.

By submitting a comment, you accept that CBC has the right to reproduce and publish that comment in whole or in part, in any manner CBC chooses. Please note that CBC does not endorse the opinions expressed in comments. Comments on this story are moderated according to our Submission Guidelines. Comments are welcome while open. We reserve the right to close comments at any time.

Become a CBC Member

Join the conversationCreate account

Already have an account?