Conservatives Without Conscience

White House had managed to get the Justice Department to virtually define away torture. As the Economist commented, the words of the Bush administration officials on torture 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.” Similarly, Senator John McCain, who was tortured as a POW in Vietnam and took pride in the belief that his country would never resort to using such measures, did not believe the Bush administration. 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 was pure expediency. Judge Abe Sofaer, who negotiated the torture convention, wrote an op-ed explaining that there was never any intention to limit the torture agreement to American soil. McCain had a powerful case for why his amendments were needed.

In October and November of 2005, Senator McCain offered his amendments to the Defense Department’s authorization bill and its appropriations bill to prohibit the United States from engaging in torture. This was legislation that could not be vetoed without halting the war in Iraq. The first McCain-sponsored amendment was titled “Uniform Standards for the Interrogation of Persons Under the Detention of the Department of Defense.” It simply stated 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 (which prohibits torture). The second McCain-sponsored amendment was titled “Prohibition On Cruel, Inhuman, or Degrading Treatment or Punishment of Persons Under Custody or Control of the United States Government.” This provision required that 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.”

Amazingly, when Cheney learned of these amendments, he tried to block them. Who could conceive of an American vice president demanding that Congress give the president the authority to torture anyone, under any circumstances? Yet that is exactly what Cheney wanted. Fortunately, Congress—finally—showed some institutional pride and told Cheney that it would not countenance torture, under any circumstances. It was also remarkable that Senate majority leader Bill Frist set aside his Hippocratic Oath and unsuccessfully attempted to use procedures to prevent Senator McCain from offering the amendments. Finally, the White House threatened that President Bush, who had not vetoed a single piece of legislation since assuming office, would do so for any bill 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). This threat announced, in effect, that the authorization to torture was more important than the well-being of the nation.

The administration’s public explanation for its opposition to McCain’s amendments, as made by those few willing to promote these actions, 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 search for terrorists are international, and in fact, that is the exception to the rule. And typically, Americans command these undertakings, so the contention that prisoners accused of terrorism would somehow be 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 with impunity, and that do not honor the kinds of rights the U.S. Constitution guarantees. This practice is also contrary to international law.

Reports indicated that Dick Cheney’s favorite argument—the one he made 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” gambit. So frequently has this specious argument been employed to justify torture that it deserves to be shot down with more than a passing reference. The argument runs 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 necessary information to stop it? Absolutely. 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. Its beauty is that once you concede there are circumstances in which 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. To paraphrase Bush, you have joined the evildoers.

A number of great minds and moral authorities rely on this logic, so Cheney is not alone. Nonetheless, it is a bogus argument, a rhetorical device. It is seductively simple, and compellingly logical. But it is also pure fantasy. The conditions of ticking bomb scenarios are in the same remote category as a meteor or asteroid hitting earth. No one has more effectively probed the fallacies of this line of thinking than Georgetown University School of Law professor David Luban. Writing in the Washington Post, Luban explains why, while it makes good television melodrama, this scenario does not produce critical thinking.[72] Luban surgically dissects this argument at greater length in the October 2005 Virginia Law Review in his essay “Liberalism, Torture, and the Ticking Bomb.” Citing moral philosopher Bernard Williams, Luban wrote 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.” As Professor Luban noted, “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.”[73]

Senator McCain, joined by former military judge and current senator Lindsey Graham (R-SC), called the bluff of the White House, and pushed forward with his amendments. The U.S. Senate approved them overwhelmingly with a vote of 90 to 9 in favor.[*] (Senator Corzine [D-NJ], who was running for governor, was absent.) Not surprisingly, the House of Representatives, as far as the Republican leadership was concerned, was not willing to accept the McCain amendments. A year earlier Speaker of the House Dennis Hastert had tried to slip a provision into a law authorizing the CIA to torture. But he was caught, and the effort died. Senator McCain was negotiating with the House, and with the White House, when Congressman John P. Murtha (D-PA) forced the issue to the House floor, calling for a motion to instruct the House conferees 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 against Murtha’s 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. That argument was absurd; terrorists already have that protection, and McCain’s amendments do not change the existing law. Young’s contention went nowhere, and the subsequent vote sent a clear message to Bush and Cheney: The motion carried by 308 yeas and a remarkable 122 nays (all authoritarian).

Bush later invited McCain to the White House and at a photo-opportunity session in the Oval Office appeared to concede and back down. Cheney was not to be seen, for he was no doubt busy making sure the signing statement Bush would issue would make clear that the White House did not believe the Congress could tell the president (read: Cheney) whether he could or could not use torture. The artfully worded statement said, “The executive branch shall construe [the McCain amendment law] in a manner consistent with the constitutional authority of the President…as Commander in Chief,” adding, that by doing so it “will assist in achieving the shared objective of the Congress and the President…of protecting the American people from further attacks.” As the Boston Globe reported, a number of legal scholars read this, as I did, as Bush and Cheney saying, We will do whatever we want, notwithstanding the law prohibiting torture.[74]

Cheney sent a clear signal of his plans for the ongoing efforts to further enhance presidential powers by elevating David Addington, his former counsel, to replace his indicted former chief of staff, Scooter Libby. Addington is a low-profile, high-powered, table-pounding, sarcastic when-not-shouting-in-your-face attorney.