In the wake the Senate Intelligence Committee’s report on the CIA’s use of torture, we are all being asked to think historically. Many have seen this moment as an opportunity to set the historical record straight with California Senator Diane Feinstein calling the use of torture by the CIA “a stain on our values and our history.” “History,” the Senator said, “will judge us by our commitment to a just society governed by law and the willingness to face an ugly truth and say ‘never again.”
But viewing the legally sanctioned use of torture in the early 21st century as a blip on the historical record of the United States is to ignore its longer history of the state using law to justify violence. This is the ugly truth we are unwilling to face. Because to do so would require Americans to recognize the historical connection between the history of legally justified violence towards Indigenous people in the 19th century with our Global War on Terror in the twenty-first. Let me explain.
In the summer of 2008, I was working on a book about a conflict known as Modoc War, 1872-1873, California’s so-called last Indian war. One of the most significant events in the history of U.S.-Indian violence in the nineteenth century, is largely forgotten today. Shortly after I began researching the book, I received an email informing me that the Modoc War had come up in conjunction with the use of enhanced interrogation techniques in the U.S. Global War on Terror. What was this all about? Was there an actual connection here, or was this just some random happenstance of the Internet? I was surprised by what I found.
Following the attacks of September 11, 2001, the George W. Bush administration began constructing its legal response to the perceived terrorist threat. This response consisted of a series of legal opinions from the Department of Justice, many of them written by John C. Yoo, a University of California law professor who was then serving as a deputy assistant attorney general. The memorandums provided legal arguments to support the administration’s claim that detainees from the war in Afghanistan did not enjoy the protections of either the U.S. Constitution or the Geneva Convention and that the War Crimes Act of 1996 also did not apply. Despite considerable disagreement from Secretary of State Colin Powell and others, the administration went ahead, and by December 2002, the Defense Department had drafted detailed policies for interrogation techniques. Then, in early March 2003, Yoo authored one of his most sweeping legal briefs in what came to be known as the infamous Torture Memos. In it, he set out not only a legal justification but also a historical connection between unlawful combatants in the current conflict and Indigenous peoples in the nineteenth century.
Reading the eighty-one-page memorandum after it became available to the public in April 2008, I was surprised to discover that at a crucial point in his memorandum Yoo relied on U.S. attorney general George H. Williams’s 1873 opinion regarding the legality of denying Indian P.O.Ws fifth amendment due process rights. The opinion provided a legal justification for circumventing civilian jurisdiction to try the Modocs for murder by a military tribunal. “It cannot be pretended that a United States soldier is guilty of murder if he kills a public enemy in battle,” Williams wrote in 1873, “which would be the case if the municipal law was in force and applicable to an act committed under such circumstances.” The Modocs, Williams had argued, could be legally prosecuted and executed by the U.S. military as long as they were first declared criminals; the U.S. Army, in other words, could kill Indians who were deemed murderers without themselves becoming murderers.
One hundred thirty years later, Yoo resurrected this legal theory to support his expansive articulation of executive power and to maintain American innocence in the Global War on Terror. “The strictures that bind the Executive in its role as a magistrate enforcing the civil laws have no place in constraining the President in waging war,” Yoo argued. Enhanced interrogation techniques, including waterboarding, could be used on enemy combatants because federal criminal laws prohibiting assault and battery simply do not apply to such criminals. Within the eyes of American law, the enemy combatant was a criminal because the Modocs were criminals; the use of torture in the Global War on Terror was justified because hanging the Modoc was justified.
What does this all mean? Why is it important to recognize the historic roots of our current conversation about torture? Because history matters. Setting the record straight matters. In reckoning with the legacy of the September 11, 2001 and its aftermath Americans must confront the violence of the past and say “never again.” But in doing so we must not think that these sort of judicially expedient accommodations are unprecedented. Too often we forget that the colonization and subjugation of the powerless are often carried out under the guise of the law. Williams constructed a legal opinion in 1873 to justify ends, which most Americans at the time would have viewed as necessary and justified. But in doing so, he created a means for others. A true accounting for the history of the use of torture in the war on terror will have to look far beyond the last decade to understand our longer use of the law to justify the unjust.
The Intelligence committee’s report is an important step towards a national reckoning with our history of violence. But until Americans are willing to question our use of the law to justify our wars of empire, both historically in the American West and today in the Middle East, we shouldn’t believe this shameful episode was a singular event. Only then can we face the ugly truth and say “never again.”
Boyd Cothran is assistant professor of U.S. Indigenous and Cultural History at York University in Toronto, Ontario. He is the author most recently of Remembering the Modoc War: Redemptive Violence and the Making of American Innocence published by the University of North Carolina Press this year.