After the Senate passed McCain's torture ban by a resounding 90-9 vote, ending any hope of a presidential veto, the administration tried to further neutralize its impact by backing an amendment authored by Republican Senator Lindsey Graham of South Carolina. As originally drafted, this amendment would have allowed the courts to consider all evidence collected under any but the most outrageous uses of "undue coercion." No less startlingly, it denied detainees in places like Guantanamo -- those "unlawful combatants" - any right to challenge their detention by filing writs of habeas corpus in U.S. courts. Complaining that "Non-Citizen Terrorists" at Guantanamo were filing cases over "the quality of their food," Graham urged passage of his amendment to spare "our troops fighting in the War on Terror" from being "sued in every court in the land by our enemies." For a mess of partisan pottage, the senator was bartering away this nation's constitutional birthright of habeas corpus, a foundational legal protection born of Parliament's long struggle to ban royal torture writs by the infamous Court of Star Chamber.

After the Senate approved Graham's amendment by a 49-42 vote on November 10, reformers led by Democratic Senator Carl Levin fought an uphill battle to moderate these extreme proposals -- replacing the bill's blanket acceptance of "coerced" evidence with ground rules for its evaluation by the courts and trying to limit the ban on habeas corpus appeals from Guantanamo to future cases, allowing those already filed to proceed.

But in the final legislation, titled "The Detainee Treatment Act of 2005," McCain's now-compromised ban on cruel treatment of detainees was effectively eviscerated by Graham's denial of legal redress. To nullify the landmark Supreme Court ruling that Guantanamo is, in fact, American territory and so falls under the purview of U.S. courts, Graham also stipulated in the final legislation that "the term 'United States,' when used in a geographic sense, does not include the United States Naval Station, Guantanamo Bay." In this way, he tried once again to deny detainees any legal basis for access to the courts. In effect, McCain's motion more or less bans torture, but Graham's removes any real mechanism for enforcing such a ban.

The Media Mirage of a Torture Ban

Last December 15, all these tensions seemed to dissolve in a dramatic Oval Office handshake between Senator McCain and President Bush who announced that the landmark legislation made it "clear to the world that this government does not torture."

That White House photo-op was, however, a complete media mirage. Within hours, the administration began moving deftly to pull any teeth left in this legislation. Speaking to CNN, Attorney General Antonio Gonzales quickly dismissed McCain's reform as insignificant, insisting that existing legislation only banned the infliction of "severe" physical or psychological pain in interrogations -- the same linguistic legerdemain that had allowed the administration to start torturing back in 2002. The attorney general seemed to be echoing the opinions of his subordinates who, according to the Washington Post, were already arguing that the McCain amendment would, "under certain circumstances," still allow "waterboarding" -- the same method that the French Inquisition had once called the "question de l'eau" (water question) or "torturae Gallicae ordinariae" (standard Gallic torture) -- and other harsh techniques.

On December 30, right after signing a defense bill that included the McCain amendment at his Crawford ranch, President Bush issued a "signing statement" -- carefully released at the extremely unnewsworthy hour of 8:00 pm that Friday night -- insisting that his powers as commander-in-chief and head of the "unitary executive branch" still allowed him to do whatever was necessary to defend America. So much for McCain's efforts as the year ended.

Just four days into 2006, Senator McCain, though claiming confidence that the "President understands Congress's intent" in passing the torture ban, promised "strict oversight to monitor the Administration's implementation of the new law." Faced with nullification by the presidential signing statement, Senator Edward Kennedy warned, during Judge Alito's confirmation hearings, that President Bush was insisting "whatever the law of the land might be, whatever Congress might have written, the executive branch has the right to authorize torture without fear of judicial review."

As if to confirm this pessimistic view, the administration quickly deployed the new Detainee Treatment Act to quash any judicial oversight of its actions -- particularly the dubious designation of detainees as "unlawful enemy combatants" unworthy of any protection by the Geneva Conventions or the U.S. Constitution.

On January 3, the Justice Department, citing this new law, notified federal judges that it would soon seek the immediate dismissal of all 160 habeas corpus cases already filed for 300 Guantanamo detainees. On January 12, the Solicitor General, again citing the new law, told the Supreme Court it no longer had jurisdiction over Guantanamo and asked the justices to dismiss another potential landmark "unlawful combatant" case, Hamdan v. Rumsfeld. Then, putting the cherry atop the administration's many-layered legal confection, on January 24 the Army changed its standing orders to allow military executions at Guantanamo, thus keeping the U.S. courts from intervening in any drum-head death sentences for detainees.

All these maneuvers were part of a White House campaign essentially aimed at formalizing those three dubious legal doctrines that had long underpinned its torture policy. Recoiling from the prospect of an "Imperial Presidency" implicit in these moves, the New York Times of January 15 called on Congress "to curtail Mr. Bush's expansion of power" and his "unilateral rewriting of more than 200 years of tradition and law."

Looking through a glass darkly into the future, the possible implications of these trends for the quality of American justice are troubling indeed. The military tribunals at Guantanamo are not required to reveal the sources of their evidence against the 500 detainees on trial, even though significant parts of it undoubtedly come from torture and abuse of either the accused or other detainees. Moreover, under the Detainee Treatment Act, federal courts will be able to consider the use of this same coerced information in hearing any appeals from Guantanamo. In a sharp, sad contrast with Britain's law lords, our congressional legislation allows the courts to weigh the probative value of tortured testimony, potentially introducing coerced evidence into the federal courts for the first time in our nation's history.

One question seldom asked is: Why has the public response to issues that cut to the very core of America's national identity been so muted? The short answer: The administration's increasingly unapologetic advocacy of torture has echoed subtly but effectively with the trauma of 9/11.

With the horrific reality of the Twin Towers attack still resonating and endless nuclear-bomb-in-Times-Square/ticking-bomb interrogation scenarios ricocheting around the media and pop culture, torture seems to have gained an eerie emotional traction. Polls taken over the last three years have confirmed this. With a complex reality reduced to a few terrifyingly simple, fantasy-ridden scenarios, torture in defense of the "homeland" has gained surprisingly wide acceptance, while the torture debate has been reframed -- to the administration's great advantage -- as a choice between public safety and the lives of millions or private morality and bleeding-heart qualms over a few slaps up the side of the head. In this way, old-fashioned morality has been made to seem little short of immoral.

Through the invisible tendrils that tie a state to its society, the media has often reflected aspects of administration policy on such subjects. Television, in particular, has had a powerful effect in its repeated portrayals of harsh, even abusive interrogations as effective and morally justified acts --when, in fact, they are neither. After years of watching television shows such as "NYPD Blue" and "24" with plots that mimic the ticking-bomb scenario, millions of ordinary Americans seem to believe that we have entered an era when abuse, or even torture, is necessary to save lives.

Each week, for instance, up to 20 million Americans have watched the fictional detectives of "NYPD Blue" use harsh methods to "tune up" suspects in the "pokey,'" or interrogation room, risking their careers to extract information that regularly saved lives and made the city safer. Accepting the need to torture just one criminal in this week's episode, or just one terrorist with a ticking bomb in Fox Television's popular CIA drama "24," opens ordinary Americans to consider whether the torture of real terrorists is not only justifiable but imperative. It seems likely that these televised scenarios have lent a hand in creating a public climate tolerant of governmental torture.

Does Bush administration policy really reflect a fundamental shift in moral choices by the American public? Have we really developed a taste for torture?

As a people, we are now faced with a decision that will influence the character of our nation and its reputation in the eyes of the world. We can agree with the Bush administration's decision to make torture a permanent weapon in the American arsenal -- or we can reject this policy and join the international community by honoring our commitments under the UN convention, as well as under U.S. law, and banning torture unconditionally.

Alfred W. McCoy is the author of A Question of Torture: CIA Interrogation, from the Cold War to the War on Terror (Metropolitan Books, The American Empire Project, 2006) and a professor of history at the University of Wisconsin-Madison.

Copyright 2006 Alfred W. McCoy

Read other columns by Tom Engelhardt  

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