The Torture Test

The next several days will show whether our Congress has slipped its moral moorings. Seldom have moral lines been so clearly drawn. The issue is whether American armed forces and intelligence personnel should be permitted or forbidden to torture detainees. Lawmakers on Capitol Hill are expected to decide whether to ban torture against all prisoners held by the United States, to merely ban torture for some of those prisoners, or to reject outright any attempt to legislate a new ban on torture. The White House and the CIAare lobbying to exempt detainees held by the CIA from an amendment-- sponsored by John McCain and endorsed by nearly all senators--that would ban "cruel, inhuman and degrading" treatment for all detainees held by the United States.

The context for the White House position is key. After the publication of the Abu Ghraib photos in 2004, the administration released a raft of documents claiming these documents showed that there was no policy allowing the abuse of prisoners. It was surreal; the documents showed just the opposite. It was as though the White House thought we couldn't read.

Most striking was a memorandum of February 7, 2002, signed by President George W. Bush, on the treatment of Al Qaeda and Taliban detainees. That memorandum records the president's unilateral determination that the Geneva Convention on prisoners of war "does not apply to either al Qaeda or Taliban detainees." This decision is of dubious validity because there is no provision in the Geneva conventions that would countenance a unilateral decision to exempt prisoners from Geneva protections.

I will spare you most of the torturous language offered by the president's lawyers. Suffice it to say that paragraph 3 of his February 7 memorandum contains a gaping loophole that, in effect, authorizes torture:

As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva. (emphasis added)

How Did We Stoop So Low?

President Bush and Vice President Cheney set the tone. According to counterterrorism chief Richard Clarke, it began on the evening of 9/11.Immediately after the president's 8:30p.m. TV address to the nation, he met with Defense Secretary Donald Rumsfeld and Clarke in a bunker under the East Wing of the White House. In his book, Against All Enemies, Clarke describes the president as "confident, determined, and forceful":

I want you all to understand that we are at war...any barriers in your way, they're gone. Any money you need, you have it...I don't care what the international lawyers say, we are going to kick some ass.

At a joint hearing of the House and Senate intelligence committees on September 26, 2002, Cofer Black, then-head of the Counterterrorism Center at CIA, emphasized the need for "operational flexibility," adding that intelligence operatives cannot be held to the "old" standards. Addressing torture, Black said, "This is a highly classified area, but I have to say that all you need to know: There was a before-9/11 and an after-9/11. After 9/11 the gloves came off."

On Wednesday, the Washington Post delivered fresh evidence that, within days of 9/11, Bush and Cheney told then-CIA director George Tenet to set CIA interrogators free from the customary restrictions. In her article on the mini-gulag system of secret CIA-operated prisons overseas, Post reporter Dana Priest reported that on September 17, 2001, Bush signed a secret "finding" giving the CIA broad authorization to disrupt terrorist activity, including permission to kill, capture and detain Al Qaeda members anywhere in the world.

Authorization for "rendering" detainees to other countries for interrogation, as well as the establishment of secret prisons abroad, were probably subsumed under such a broad presidential "finding." Still, one can assume that Tenet and, indeed, the president himself would seek reassurance that they would be legally protected from prosecution in the future. And this would account for the flurry of lawyerly activity in early 2002.

Why were then-White House counsel Alberto Gonzalez and David Addington, then counsel to Vice President Cheney (and recently appointed to replace I. Lewis Libby as chief of staff) and their counterpart attorneys at Justice and Defense at such pains to square the circle to make torture "legal?"

Addington reportedly took the lead in drafting the famous memorandum sent by Gonzales to the president on January 25, 2002, which described as "quaint" and "obsolete" some of the Geneva provisions, and reassured the president that there was "a reasonable basis in law" that--if he exempted Taliban and Al Qaeda detainees from Geneva protections--he could still avoid possible future prosecution for war crimes. And so, Bush signed the February 7 memorandum, and Tenet's hired thugs could feel more at ease employing so-called "Enhanced Interrogation Techniques"--including "water-boarding," during which a detainee is repeatedly brought to the point of drowning.

In her report, Priest made it clear that only the chair and ranking members of the House and Senate intelligence committees were briefed on the secret prisons, and this is probably what happened with respect to other quasi-legal activities as well. But there is a problem. Members of Congress, however much they may enjoy being privy to real secrets and as prone as many are to give intelligence activities a wink and a nod, they cannot make illegal activities legal. And that's the rub.

Enter The Straight Man

Earlier this month, Sen. John McCain, R-Ariz., who knows torture up close and personal, was joined by 89 other senators in voting for legislation that makes unlawful "cruel, inhuman, or degrading treatment or punishment of persons under custody or control of the United States government." The McCain initiative took the form of an amendment to this year's $440-billion defense authorization bill, which includes about $50 billion needed for operations in Iraq.

It will come as no surprise that Cheney is leading the fight against the amendment. It is an unseemly spectacle. Here we have a parvenu regarding things military--with multiple draft deferments to escape the war in Vietnam--importuning the highly decorated officer and torture survivor McCain to allow torture to continue in Iraq and elsewhere. No matter. Cheney descended on McCain and other senators last July and tried to twist their arms to put the amendment aside. Cheney was rebuffed, as he apparently was once again last week, when he and CIA chief Porter Goss made another attempt to dissuade McCain.

A few CIA professionals were angry enough to protest, but were assured by Goss' Office of Congressional Affairs that Goss is on record as forbidding the use of torture by CIA officers. This disingenuous reply came even as Goss joined Cheney in lobbying on the Hill to modify the McCain amendment so there would be no legal problems for CIA personnel engaging in torture--or for the CIA director who condoned it.

Yesterday, the president's own United Methodist Church's Board of Church and Society, in an almost unanimous vote, protested against the "unjust war in Iraq" and appealed for return of our troops. The Board also issued a strong statement against torture, urging Congress to create an independent, bipartisan commission to investigate detention and interrogation practices at Guantanamo, Iraq and Afghanistan. The Methodist bishops may issue a similarly strong statement next week.

Until now, the lukewarm mainstream churches have not been able to find their voice--a throwback to the unconscionably passive stance adopted by the Catholic and Lutheran churches that were co-opted by Hitler in the 1930s. Let us hope that other churches start paying attention to what is going on and follow the good example of the Methodists.

Otherwise, our government's view will prevail. As described by one former CIA lawyer that is "the law of the jungle. And right now we happen to be the strongest animal."

House and Senate conferees are to meet this week to reconcile the two versions of the defense bill. The fate of the McCain amendment, which is included only in the Senate bill, hangs in the balance. Three of the nine Republican senators who voted against the amendment are on the Senate/House conference committee. What emerges will be a moral barometer. It will be interesting to see if the barometer keeps falling.