Shocking The Conscience Of America


If the events I am about to describe were taking place in a movie, or novel, I would lose my ability to suspend disbelief: Who could conceive of an American President and Vice President demanding that Congress give them authority to torture anyone, under any circumstances?

Yet that is exactly what happened. Until Congress — finally — showed some institutional pride and told Bush and Cheney that it would not tolerate torture.

To place this activity in context, I have been trying to think of a similar “un-American” low point in the American presidency. Possible candidates might include John Adams’s approval of the Alien and Sedition Act of 1798, or Abraham Lincoln’s suspension of habeas corpus during the Civil War.

But neither of these moments strikes me as sufficiently shameful. Indeed, not even Franklin Roosevelt’s horrific internment of Japanese-Americans during World War II is, in my view, as low a point as President Bush and Vice President Cheney’s call for the unrestricted, unreviewable power to torture. It seems the precedent for Bush and Cheney’s thinking resides in the Dark Ages, or Stalin’s Russia.

The Bush/Cheney presidency has been pushing the nation toward an atrocity unmatched in the annals of American infamy and ignominy. Thankfully, a few wiser men and women in Washington have saved us from the national disgrace Bush and Cheney insisted upon imposing on the nation.

If you have not been following this shameful saga, here is a brief recounting of the key events. A sensible resolution appears to be at hand.

McCain’s Torture Amendments

In October and November of 2005, Senator John McCain (R-AZ) offered amendments to the Defense Department’s authorization bill and its appropriations bill. Apparently, McCain sought to avoid having his amendments defeated based upon a parliamentary technicality. And he succeeded, attaching the amendments to both pieces of legislation.

The first McCain-sponsored amendment is titled “Uniform Standards for the Interrogation of Persons Under the Detention of the Department of Defense.” It simply states that persons “in the custody or under the effective control of the Department of Defense” can only be interrogated pursuant to the United States Army Field Manual on Intelligence Interrogation. (The new edition is about to be released; let us hope it does not contain unwelcome surprises for Senator McCain, and that the Army has proceeded, here, in good faith, rather than trying to undermine the Senator’s legislation.)

The second McCain-sponsored amendment is titled “Prohibition On Cruel, Inhuman, or Degrading Treatment or Punishment of Person Under Custody or Control of the United States Government.” This provision requires individuals in the custody of, or under the physical control of, the United States Government, regardless of nationality or physical location, not be subjected “to cruel, inhuman, or degrading treatment or punishment.”

When officials in the White House leaned of these amendments, they tried to block them. Senate Majority Leader Bill Frist tried, but failed, to procedurally prevent Senator McCain from offering the amendments. Then the White House threatened that President Bush, who has not vetoed a single piece of legislation since assuming office, would veto any legislation that contained McCain’s amendments, even if it meant shutting off funds for the Department of Defense (a move that would have posed no small threat to national security).

Senator McCain, joined by former military judge and current Senator Lindsey Graham (R-SC), called the bluff of the White House, and pushed forward. The U.S. Senate voted 90 to 9 in favor of McCain’s amendments. (Senator Corzine (D-NJ), who was running for governor, was absent). The nine Senators who, with their votes, refused to prohibit torture deserve mention, for notwithstanding mealy rationalizations, their votes should haunt their political careers: Senators Allard (R-CL), Bond (R-MO), Coburn (R-OK), Cochran (R-MS), Cornyn (R-TX), Inhofe (R-OK), Roberts (R-KS), Sessions (R-AL), and Stevens (R-AK).

The Reasons For, and Importance of, The McCain Amendments

Bush has repeatedly said, “We do not torture.” Secretary of State Condoleezza Rice has repeatedly claimed the United States does not engage in “cruel, inhuman, or degrading treatment.” And CIA director Porter Goss says his agency “does not do torture. Torture does not work.”

Why, then, was it necessary to clarify the law? Because no one believes the Bush Administration on this issue. Recall the torture memos, in which the White House was defining away torture. As The Economist commented, the words of these officials count “for little when the administration has argued, first, that during time of war, the president can make just about anything legal, and, second, that the UN Convention Against Torture does not apply to interrogations of foreign terrorist suspects outside the United States.”

Senator McCain’s agenda has been clear. His first amendment is based on the military’s experiences in Afghanistan and Iraq: As he explained, “We placed extraordinary pressure of [American troops] to extract intelligence from detainees, but then threw out the rules that our soldiers had trained on and replaced them with a confusing and constantly changing array of standards. We demanded intelligence without ever clearly telling our troops what was permitted and what was forbidden. And when things went wrong, we blamed them, and we punished them. I believe we have to do better than that.”

McCain’s second amendment offers nothing new – yet is, paradoxically, extremely important nonetheless. The amendment restates what is, in fact, the law under the Universal Declaration of Human Rights, adopted by the United States in 1948; the International Covenant on Civil and Political Rights, to which the United States is a signatory; and the Convention Against Torture, negotiated by the Reagan Administration.

When ratifying the Convention Against Torture, the Senate imposed a reservation: that the implementing laws should define “cruel, inhuman, or degrading treatment” as prohibited by the U.S. Constitution’s Fifth, Eighth and Fourteenth Amendments. The Supreme Court has held that such treatment must “shock the conscience” to be beyond the pale. Strikes me that Bush and Cheney have shocked America’s conscience.

In addition, in 2004, Congress passed a bipartisan amendment to the Defense Authorization bill, reaffirming that detainees in U.S. custody could not be subject to torture or cruel treatment as those terms have been previously defined by the U.S. Government. “But since last year’s DOD bill,” Senator McCain informed his colleagues, “a strange legal determination was made that the prohibition in the Convention Against Torture against cruel, inhuman, or degrading treatment does not legally apply to foreigners held outside the United States.” Or as the Senator put it more bluntly, “They can apparently be treated inhumanely.”

The Bush/Cheney Administration’s reading of the law is malarkey. Judge Abe Sofaer, who negotiated the torture convention, wrote an OpEd explaining that there was never any intention to limit the torture convention to American soil. And this is another reason why McCain’s amendments are needed: The Washington Post’s report of an international network of CIA-run secret prisons raises the fear that the U.S. may, based on this distortion of the law, be torturing its prisoners whenever it finds it expedient to do so.

Common sense tells the world if Bush and Cheney did not want to engage in torture, they would not have been pulling out all the stops to block these amendments.

Stated Reasons For Opposition To McCain’s Amendments

The Administration’s public explanation for its opposition to McCain’s amendments, as made by those willing to carry sewage for them, bordered on pathetic. Senator Ted Stevens (R-AK) claimed during the Senate debate on the amendments that they would have a reverse impact, resulting in more torture.

Stevens reached this conclusion by claiming that the international teams that pursue terrorists, being aware of restrictions on Americans, would not give the United States custody of terrorists that they found. This contention is so full of holes that it is barely necessary to refute it.

Not all groups that sniff out terrorists are international. To the contrary, that is the exception to the rule. And typically, Americans command these undertakings, so the idea that prisoners accused of terrorism would be somehow taken away from America and tortured – against America’s will — by other nations is absurd.

In fact, the current practice is exactly the opposite: Through what is called “rendition,” America now allows its own suspects to be turned over to countries that torture more shamelessly, and that do not honor the kind of rights the U.S. Constitution guarantees.

McCain’s second amendment, by prohibiting torture of anyone, anywhere, who “in the custody of, or under the physical control of, the United States Government” ought to preclude rendition – and surely is intended to do so. (But clever lawyers may try to evade it with sophistry: If the U.S. truly transfers custody of a prisoner to another sovereign, is he still under the U.S.’s physical control? What if another country captures a U.S. suspect, and tortures him before turning him over?)

Reports indicated that Dick Cheney’s favorite argument – the one he makes in trip after trip to closed door meetings on Capitol Hill to get authority, at minimum, for the CIA to be able to torture — is the old “ticking bomb” argument. So frequently has this specious argument been employed to justify torture, it deserves to be shot down with more than a passing reference.

The “Ticking Bomb” Argument For Torture

The argument goes like this: A nuclear bomb has been planted in the heart of a major American city, and authorities have in custody a person who knows where it is located. To save possibly millions of lives, would it not be justified to torture this individual to get the information? Is not this lesser evil justified?

Of course it is. And this argument is a wonderful means to comfort those who have moral problems with torture. The beauty of this argument is that once you concede there are circumstances were torture might be justified, morally and legally (through what criminal law calls the defense of necessity: that an act is justified to save lives), you are on the other side of the line. You’ve joined the torture crowd.

Those who’ve invoked the argument range from Alan Dershowitz, to the Israeli Supreme Court, to the Schlesinger Report on Abu Ghraib, to the Robb/Silberman Pre-Iraq War Intelligence Report.

Most recently, and eloquently, the argument was set forth in the pages of The Weekly Standard, by Charles Krauthammer. His powerful essay, “The Truth about Torture: It’s time to be honest about doing terrible things,” received wide circulation on the internet.

With all these great minds, and moral authorities, relying on this argument, it is with some trepidation that I point out that it is phony. I do so for a number of very real reasons.

Fallacies In The “Ticking Bomb” Argument — The Clock Does Not Work

It is a rhetorical device. It is seductively simplistic, and compellingly logical. It is also pure fantasy. The conditions of ticking bomb scenarios are seldom real.

No one has more effectively probed the fallacies of this argument than Georgetown University School of Law professor David Luban. Writing in the Washington Post, in a piece entitled “Torture, American-Style,” Luban explains why, while it makes good television melodrama, this scenario does not produce critical thinking.

Professor Luban surgically dissects this argument at greater length in the October 2005 Virginia Law Review. His essay “Liberalism, Torture, and the Ticking Bomb” is very much worth the read. Citing moral philosopher Bernard Williams, Luban writes that “there are certain situations so monstrous that the idea that the processes of moral rationality could yield an answer in them is insane,” and “to spend time thinking what one would decide if one were in such a situation is also insane, if not merely frivolous.”

Indeed, shouldn’t the President, the Vice President, and those members of the Senate and House embracing the power to torture without justification, without court oversight, and without limits, look, instead, at what they are doing to us as a society? As professor Luban notes, “McCain has said that ultimately the debate is over who we are. We will never figure that out until we stop talking about ticking bombs, and stop playing games with words.”

Which brings us to the present situation.

Resolution Of The McCain Amendments

The House of Representatives, as far as the Republican leadership was concerned, was not willing to accept the McCain Amendments. No surprise there. Last year, Speaker of the House Dennis Hastert tried to slip a provision into a law authorizing the CIA to torture. But he got caught, and the effort died.

The House GOP leaders wanted to avoid letting this matter come to a recorded vote in the House. How many members would dare to vote for torture? Even though public opinion polls are all over the lot, as Maggie Gallagher found, when Gallup asked more specific questions, Americans recoiled.

For example, Gallup asked, “Would you be willing, or not willing, to have the U.S. Government torture known terrorists if they know details about future terrorist attacks in the U.S.?” Fifty-nine percent were not willing.

The poll asked if the following activities were right or wrong: forcing prisoners to remain naked and chained in uncomfortable positions in cold rooms for several hours: (79 percent said this was wrong); having female interrogator make physical contact with Muslim men during religious observances that prohibit such contact (85 percent said this was wrong); threatening to transfer a prisoner to a country known to use torture: (62 percent said this was wrong); threatening prisoners with dogs (69 percent said this was wrong); using the technique of waterboarding, which simulates drowning (82 percent said this was wrong). The only 50/50 split came on sleep deprivation.

Senator McCain has been in negotiations with the House, and with the White House. Then Congressman John P. Murtha (D-Pa.) forced the issue in the House, calling for a motion to instruct the House conferee to accept the language of the McCain Amendments. “No circumstance whatsoever justifies torture. No emergencies, no state of war, no level of political instability,” Murtha, a heavily decorated and much respected veteran, said.

Only one lonely voice dared to speak on the House floor against this motion. Congressman C.W. Bill Young of Florida opposed the McCain amendments because he did not believe terrorists should have the protection of our Constitution. The argument was absurd. They already have that protection, and McCain’s amendments do not change the existing law. Young’s contention went nowhere. The vote sent a clear message to Bush and Cheney. The motion carried by 308 yeas and 122 nays. Those are 122 members of the House who have shamed themselves.

The Congress has given the Bush/Cheney White House no choice: Back down. Both the Senate and the House have told the President, if you veto, we will cram this down your throat. As Mr. Murtha put it: “No torture and no exceptions.”

Since Dick Cheney is so keen on torture, maybe he will give the nation a demonstration of waterboarding, which he does not seem to believe is cruel, inhumane, or degrading. No doubt he could be given a ticking clock to keep with him under water as well.

John W. Dean, a FindLaw columnist, is a former counsel to the president. 

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