The Torture Report and the Indian Wars

Steve Russell

Some of my friends are celebrating that 2014 was the year the “Torture Report” finally came out, allowing the world to see that the United States is big enough to admit its shortcomings for all to see. This is why the U.S. deserves to be a leader on the side of morality. The truth trumps even perceived self-interest.

American Indians, of course, are not convinced the United States has ever owned up to its human rights shortcomings in separating the inhabitants of the Americas from their property, their spirituality, their children. All this over and above merely taking Indian lives.

It’s important to acknowledge the periodic lurches of policy toward doing the right thing. The Indian Claims Commission. The Meriam Report. We’ve had friends inside the government whose work lives after they walked on. Felix S. Cohen comes to mind.

It’s not that the United States does not have a persistent righteous streak in public policy. The problem is that the righteous impulses are seldom translated to policies and, when they are, the goodwill is not evenly distributed.

Felix Cohen, during the same career when he did his level best to empower Indians within the framework cobbled out of nothing by Chief Justice John Marshall, had the bright idea to settle as many European Jews as possible in Alaska before Hitler had the chance to do what he plainly told the world he intended to do.

Cohen’s idea went nowhere and the results were dramatized in Voyage of the Damned. The U.S. turned refugees away to face certain death, contributing to a load of deserved guilt that plays out in mindless support of Israel in all it does when the side of decency today would be as an honest broker among the Middle Eastern parties. Anyway, it’s hard not to notice that Cohen was Jewish and had better luck standing up for Indians than he had standing up for Jews.

Then there was John Collier, who had the same streak of paternalism our “friends” have always had and rammed though the Indian Reorganization Act. The IRA was an imperfect vehicle, but it did replace termination and relocation and it even allowed some tribes to reconstitute land bases decimated by allotment.

My point is not that our friends were perfect but just that we’ve not been completely friendless. So what should we make of the Torture Report? Is it another imperfect example of the U.S. government, as Winston Churchill famously remarked, doing the right thing after exhausting all other possibilities?

Well, no. The Torture Report is not public. A heavily expurgated executive summary is public, and that contains enough stomach churning detail to make you wonder what terrible deeds were too much to admit publicly.

There is ample documentation of crimes, but no one is going to be prosecuted. The argument goes that it’s not fair to prosecute the torturers because they were just following orders under the influence of the temporary insanity induced by the events of September 11, 2001.

This sounds a lot like the defense spoken by Nazi war criminals at Nuremberg, just before the Allies put nooses around their necks.

At the other end, the argument goes that we don’t want to make criminals of heads of state. While that is consistent with the George W. Bush administration’s removing the U.S. signature (placed by Bill Clinton) on the Rome Statute of the International Criminal Court, it is not consistent with what happened to some guys named Saddam Hussein and Muammar Gaddafi, both executed by U.S. surrogates.

It’s hard to say whether Indians are better off or worse off because of the refusal of the U.S. Government to take responsibility in some kind of final apologetic reckoning for several hundred years of ebbing and flowing evil.

The evil is common enough knowledge that we get an advantage in the opinion of that part of the public that dares to mix morality with policy. And some evils are of a size and duration that any reckoning is bound to be incomplete and leave many people on both sides unsatisfied.

Those arguments can be made about Indian policy, but it’s hard to credit them in the matter of condoning and even ordering torture in the aftermath of 9-11. The people who did it and those who ordered it are few and can be identified in spite of the tapes destroyed by the CIA.

Maybe there’s an argument to be made for pardon, but what is happening is not pardon. It’s ignoring behavior for which we hanged people after World War II and that’s hypocrisy of the highest order.

We are told we should cool our jets about torture because no other country has aired as much dirty laundry as we are wanting hung up for all to see.


Foreign Policy recently suggested that argument fails with a look at South Africa’s Commission of Truth and Reconciliation (1995-2002); the Netherlands’ report — Dossier Srebrenica (2002) — on the role of the Dutch army in the 1995 genocide in Bosnia-Herzegovina; Brazil’s National Truth Commission report (2014); Germany’s two truth commissions in 1992 and1995; Sweden’s investigation into the treatment of the Roma population (2010); Guatemala’s Commission for Historical Clarification (1997-1999); Bolivia’s National Commission for Investigation for Forced Disappearances(1982-1984); or Ecuador’s Truth Commission to Impede Impunity (2007-2009).

No, the United States is not out in front of the world in admitting the evil it has done.

No, a report on ethnic cleansing of American Indians, bounties on R**skin scalps and hides, confiscation of Indian property, and brainwashing Indian children would not be without historical precedent. There are reasons not to do it, but the novelty of the idea is not one.

What was released of the Torture Report was hardly enough to qualify as window dressing in the glass house of human rights violations where the United States lives.

The U.S. government had best quit throwing stones.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.

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