The Similarity of Russian and American Torture

In the context of Russia’s arrest of Wall Street Journal reporter Evan Gershkovich, I wrote about the similarities between Russia’s criminal-justice system and the Pentagon’s criminal-justice system in Cuba. I also pointed out that as the Russian prosecution of Gershkovich unfolds, it will provide valuable lessons for Americans about what the Pentagon has done to pervert long-established principles of criminal justice in American law. 

After I posted my article, the Journal published an article about the jail in which Gershkovich is being held. It is an infamous and sinister prison called LeFortovo, which has been used since at least the Stalinist era.

According to former prisoners of the jail who were interviewed by the Journal, the treatment of prisoners revolves around the concept of isolation. The official prison policy is to subject prisoners to the maximum isolation possible. For example, when a prisoner is being transferred from his cell to an interrogation room, the guards ensure that he will not see anyone on the way to the interrogation room.

As mental-health experts have long attested, isolation is a form of torture that produces severe and permanent mental damage. But the advantage of this type of torture from the standpoint of the torturer is that it leaves no physical marks. It’s what can be called “touchless” torture.

Guess what! The Pentagon wields the same power to inflict touchless torture that the Russian authorities wield. Moreover, the Pentagon’s power to torture extends not just to foreign citizens but also to American citizens. 

That was what the Jose Padilla case was all about. Padilla was an American citizen. The Pentagon subjected him to the same isolation-type torture to which Evan Gershkovich is being subjected. Padilla sued the Pentagon in federal court, claiming that the U.S. Constitution prohibited the Pentagon from inflicting cruel and unusual punishments on him, including isolation. 

The federal Court of Appeals upheld the power of the Pentagon to torture American citizens. It was truly a phenomenal development in the history of American criminal-justice jurisprudence. Since the founding of the United States until that judicial decision, the federal government was precluded from torturing people, both citizens and non-citizens alike. With the Padilla ruling, the Pentagon, as well as the CIA, now wield the same power that Russian officials wield to torture citizens and non-citizens alike.

Why did the federal Court of Appeals buckle to the demands of the Pentagon? It buckled for the same reason the federal judiciary has always deferred to the national-security establishment from the time that the conversion of the federal government to a national-security state occurred. The federal judiciary fully understands the omnipotent power that the national-security branch of the federal government wields. The judiciary knows that if the Pentagon, the CIA, or the NSA were to disobey a court order, there is nothing the court could do to enforce its order. Therefore, rather than expose the impotence of the federal judiciary in the face of omnipotent power, the judiciary has long chosen to simply defer to whatever the national-security establishment wants and to come up with judicial rationalizations for its deference.

That’s why, for example, the federal judiciary has deferred to the omnipotent power of the Pentagon and the CIA to assassinate people. The judiciary is fully aware that the Fifth Amendment expressly prohibits federal officials, including the Pentagon and the CIA, from killing anyone without due process of law. But they also know that the Pentagon and the CIA would never comply with a ruling declaring state-sponsored assassinations illegal under our form of constitutional government. So, the judiciary has chosen to simply defer to the omnipotent power of Pentagon and the CIA and, in the process, come up with ridiculous rationalizations to justify its deference to such power.

There is something important to note about the power to torture and, for that matter, the power to assassinate. Simply because such powers are not being currently exercised in a major way doesn’t mean that the American people are now living in a free society. A free society turns on the lack of power to do such things, not on the “benevolent” nature of how such power is being exercised. If the right “emergency” arises, make no mistake about it: the Pentagon and the CIA will remove their torture and assassination swords from their sheaths and show no hesitation or mercy in using them. 

Isn’t it ironic that the Russian treatment of Evan Gershkovich is showing us what has happened to our nation?

This originally appeared on Hornberger’s Explore Freedom blog.

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation.