The administration had always asserted that the C.I.A.’s pressure tactics did not amount to torture, which is banned by federal law and international treaty. But officials had privately decided the agency did not have to comply with another provision in the Convention Against Torture — the prohibition on “cruel, inhuman, or degrading” treatment.
Now that loophole was about to be closed. First Senator Richard J. Durbin, Democrat of Illinois, and then Senator John McCain, the Arizona Republican who had been tortured as a prisoner in North Vietnam, proposed legislation to ban such treatment.
At the administration’s request, Mr. Bradbury [head of the Office of Legal Counsel at the Justice Department] assessed whether the proposed legislation would outlaw any C.I.A. methods, a legal question that had never before been answered by the Justice Department.
At least a few administration officials argued that no reasonable interpretation of “cruel, inhuman or degrading” would permit the most extreme C.I.A. methods, like waterboarding. Mr. Bradbury was placed in a tough spot, said Mr. Zelikow, the State Department counselor, who was working at the time to rein in interrogation policy.
“If Justice says some practices are in violation of the C.I.D. standard,” Mr. Zelikow said, referring to cruel, inhuman or degrading, “then they are now saying that officials broke current law.”
In the end, Mr. Bradbury’s opinion delivered what the White House wanted: a statement that the standard imposed by Mr. McCain’s Detainee Treatment Act would not force any change in the C.I.A.’s practices, according to officials familiar with the memo.
Relying on a Supreme Court finding that only conduct that “shocks the conscience” was unconstitutional, the opinion found that in some circumstances not even waterboarding was necessarily cruel, inhuman or degrading, if, for example, a suspect was believed to possess crucial intelligence about a planned terrorist attack, the officials familiar with the legal finding said. [complete article]
Editor’s Comment — The sociopathic nature of the Bush administration has always been evident in its shameless use of language as the means through which it can conceal its actions and obscure its intentions. The long-discarded signature phrase used to deflect criticism, doubt, and misgivings, was moral clarity. The president could be trusted because he and those around him were empowered by the strength of their moral convictions, or so we were meant to believe.
Thus, when Bush and Cheney were accused of having instituted an interrogation system that clearly sanctioned the use of torture, Bush was adamant that the United States does not permit nor condone the use of torture. And how could we know that? Because no treatment of a detainee would be permitted that “shocks the conscience.”
In parallel, yet in complete contradiction with this assertion, was the idea that everything possible would be done to protect American lives. Why is this a contradiction?
Because, if what is deemed acceptable or unacceptable treatment of a detainee is going to be determined by a factor other than the condition of the detainee — specifically, by whether or not the lives of others can be protected — then the condition of the detainee becomes irrelevant. “We pulled the detainee’s finger nails out because we knew that by so doing we would be able to locate and diffuse the bomb and save thousands of lives.” This is the spurious line of reasoning that gives the ticking time-bomb scenario its popular appeal.
The administration, however, has always wanted to be on both sides of the fence. It wants to assert that it applies a form of moral pragmatism that allows it to do whatever is necessary, yet it also wants to assert that it is morally absolute in prohibiting torture.
What it refuses to acknowledge is that there can be no meaningful definition of torture that allows for mitigating circumstances — a definition that would in effect claim that something which might otherwise be described as torture, ceases to be torture because a greater good is being served.
The decoy it came up with to obscure this contradiction, is the term, “shocks the conscience.” Skeptics would instantly question the use of such a notion since it is obvious that what might shock one person’s conscience might not shock another’s. Yet as a piece of political propaganda, the phrase is clearly intended to resonate well in the minds of those Americans who actually believe that this is a presidency that upholds moral principles. In other words, this is intended to reassure the faithful — not ward off the critics.
That said, if we deconstruct the language, we can quickly expose the lie.
The dictates of conscience are infinite, yet in every instance conscience reveals the directions of an internal moral compass. What would truly shock the conscience would do so, irrespective of the terms of a Justice Department legal opinion. What would shock the conscience would be any type of action that denied the humanity of the victim while diminishing the humanity of the perpetrator.
When we consider the various actors in the Bush-Cheney torture tragedy, it is significant that the advocates and enablers of this policy have by and large been people who display neither an interest nor ability to follow the dictates of their own moral compass — these are the servants of obedience and loyalty whose allegiance to presidential power is the very stuff upon which fascism thrives. In contrast, those who displayed real moral clarity knew that not even the president of the United States could be allowed to sway their conscience.