Torturous Logic, Media Silence

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The all-encompassing rhetoric surrounding the 'war on terror' has been used by conservatives to sell the American public everything from tax cuts to the expansion of the federal government to the invasion a country that posed no discernable threat. At the same time, these same conservatives have portrayed anyone who points out these contradictions as near treasonous, recalling George Orwell's maxim: "The nationalist not only does not disapprove of atrocities committed by his own side, but he has a remarkable capacity for not even hearing about them." Regarding, for instance, Abu Ghraib, conservatives almost hit for the cycle, with Donald Rumsfeld repeatedly ignoring reports of torture, President Bush insisting that Americans simply do not do such things, and Rush Limbaugh claiming that the abuse was little more than frat boy-style hazing.

Bringing this janus-faced attitude toward what is right and what is reality into high relief are some provisions found in the House of Representatives' version of the "9/11 Recommendations Implementation Act," an intelligence reform bill being floated by that body's leadership. Speaker Dennis Hastert dropped the finished 335-page bill unannounced on the House floor last week, after keeping House Democrats in the dark about its existence. While the bill allegedly marks an attempt to implement the intelligence reforms suggested by the 9/11 Commission, in fact it seeks to water down, eliminate or otherwise evade most of its key provisions. And, while the Senate intelligence reform bill – which House Democrats support – seeks to disclose some of the intelligence budget, the House bill aims to keep spending secret. According to Hastert, "In the past, liberal Democrats have sought to publicize that number in order to increase the pressure to cut intelligence spending….I believe that telling our enemies how much we spent…diminishes our national security." Hastert does not note that such an accounting is explicitly included in the U.S. Constitution, which apparently is merely a pesky liberal pamphlet in his eyes.

Most alarming, however, are sections 3032 and 3033 of the bill, which call for what amounts to the legalization of the outsourcing of torture to foreign countries. As part of this plan, the bill also throws out the concept of judicial review for the arrest and detention of terror suspects (or any foreign national for that matter); essentially giving the director of Homeland Security carte blanche to expel foreign nationals from the United States while denying them almost any form of due process.

Section 3032 withdraws the United States from a key provision of the U.N. Convention Against Torture (signed and ratified under our last two Republican presidents), which outlaws the deportation of a non-citizen "to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." Under Hastert's bill, immigration officials would be able to deport foreign nationals for whatever reason they see fit (again, devoid of judicial review), shipping them back to the country from which they fled, even if they are under the threat of torture or murder. The provision also turns the rule of law on its head by placing the almost impossible burden of proof on the deportee to provide evidence that he or she would be tortured if returned to his or her point of origin.

Section 3033 goes even further, allowing immigration officials to return the foreign national to "any other country whose government will accept the alien," giving the director of Homeland Security the unassailable right to ship a foreign national anywhere in the world he wishes – including countries not so squeamish about torture as the United States, all absent the watchful eye of the law of civilized nations. Normally, persons subject to such arbitrary arrest and relocation would have recourse to the U.N. Convention Against Torture, which outlaws such deportation, but under Hastert's bill, the suspect would be subject only to the discretion of U.S. officials and the authorities of the country to which they were transported. This process, known as "extraordinary rendition," as the American Bar Association says in its public opposition to the bill, "not only violates all basic humanitarian and human rights standards, but violates U.S. treaty obligations which make clear that the U.S. government cannot avoid its obligations under international law by having other nations conduct unlawful interrogations in its stead. This practice not only violates our own cherished principles as a nation but also works to undermine our moral leadership in the eyes of the rest of the world."

Just how did we reach this point? Are Americans really willing to go along with a suspension of all of our beliefs and traditions when a president or a congressman waves a "terrorist" flag in our faces? With this bill, conservatives are asking for an exemption from both the rule of law and the commonly held morality on which it is based. Giving a democratically elected government the license to secretly deport and torture suspects subverts the inherently transparent and humanistic nature of a democratic society, and goes against the very institutions which give the law its meaning.

Michael Ignatieff tackled this complex moral problem earlier this year in his book "The Lesser Evil: Political Ethics in an Age of Terror," finding that although "Agents of a democratic state may find themselves driven by the horrors of terror to torture, to assassinate, to kill innocent civilians, all in the name of rights and democracy," they must take a wider view in the war against the nihilism of terrorism. "Terrorists' he says 'seek to strip off the mask of law to reveal the nihilist heart of coersion within, and we have to show ourselves and the populations whose loyalty we seek that the rule of law is not a mask but the true image of our nature."

As with so much else this election season, the press has by and large taken a pass on this story. Save the Washington Post, which ran a few short "he said, she said" stories about the bill when it was first unveiled, the battle in the House for what we can call the moral soul of the nation has been not made much of an impact on the airwaves or in most of our largest media outlets. Yes, it's complicated. Yes, it may lack good "visuals." But dammit, it's important. This is America we're talking about, and it ought to be more difficult to encourage torture—at least in the light of day.

Eric Alterman is a senior fellow at the Center for American Progress and the author of six books, including the just-published When Presidents Lie: A History of Official Deception and Its Consequences. Paul McLeary is a New York writer.

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Eric Alterman

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