Conservatives Without Conscience

by John W. Dean

  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.[75] Addington is a paradigm authoritarian, instrumental i
n gathering the team of lawyers who prepared legal opinions for the Department of Justice authorizing American interrogators to engage in torture. Addington teamed up with John Yoo, a law professor who clerked for the most far-right members of the federal judiciary—first Judge Laurence Silberman of the D.C. Circuit Court of Appeals, and then U.S. Supreme Court Justice Clarence Thomas—and who had never met a presidential power that Article II of the Constitution excluded. Together they worked on figuring out how to get around criminal laws that prohibit torture and electronic surveillances of Americans. In doing so they have offered highly specious arguments that start with the end result they seek and twist the law to fit the conclusion they want to reach. Not surprisingly, they have horrified the intellectually honest legal minds of other conservative Bush lawyers, like former deputy attorney general James Comey, who got out of the Justice Department, it appears, as quickly as he could. And former assistant attorney general Jack Goldsmith left Justice when he had had enough of Addington’s power tantrums.[76]

  Addington, who was in his early teens during Vietnam and Watergate, reportedly shares the view of his boss that “the executive branch was pitifully weakened by the backlash” to these events.[77] One has to wonder about Cheney and Addington’s motives in seeking to restore the presidency to what they believe to be its pre–Vietnam and Watergate backlash days. Are these men unaware of why Congress clamped down on presidents’ spying on Americans? Have they not read the transcripts of Richard Nixon pounding on his desk to demand a break-in at the Brookings Institution because he wanted documents he believed to be in their vault? Could they be unaware of the record of J. Edgar Hoover’s FBI when it had unfettered powers? Why, if the powers of the presidency are wanting, do they not go to Congress and lay out what they need, rather than violating the law to see if they can get away with it? Do they not realize they are calling for—and are busy implementing—an authoritarian presidency, unchecked by the Congress or the courts? Have they forgotten that the underlying ideal of our democracy is the rule of law—not rule by presidential whim? It is still not clear how far these men want to take their authoritarianism, but I cannot find any examples of authoritarians leading any government where the governed wanted to go.

  Legitimizing Authoritarian Conservatism: The Ugly Politics of Fear

  If George Bush had not selected Dick Cheney as his running mate in 2000, and if the terrorist attacks on New York and Washington had not occurred in 2001, authoritarian conservatism could not have surfaced in the executive branch with its current ferocious sense of purpose. When a president embraces a concept, though, it gains legitimacy throughout the federal establishment, as political appointees—those several thousand men and women who serve at the pleasure of the president, head up various departments and agencies, or work on the White House staff—follow their leader. Depending on the president (or, in the case of the current administration, the vice president), varying degrees of dissent are tolerated in the decision-making process, but once policy is set, political appointees are expected to carry it out or leave. This is what happens within an authoritarian government. For example, when Jack Goldsmith (now on the faculty of Harvard Law School) disagreed with the authoritarian policies being issued by the White House—policies calling for the use of torture and directing the National Security Agency to violate the Foreign Intelligence Surveillance Act by not seeking warrants for electronic surveillance of Americans—he became a marked man. Goldsmith left the Justice Department, as have other high-level attorneys who wanted no part of the administration’s disregard for the rule of law.[78]

  As Bush proceeds with his second term, we have had some six years to observe him. It is abundantly clear that he is a mental lightweight with a strong right-wing authoritarian personality, with some social dominance tendencies as well. Bush’s leading authorities are “his gut,” his God, and his vice president. Cheney, it appears, knows how to manipulate the president like a puppet, and handles his oversized ego by making him believe ideas or decisions are his own when, in fact, they are Cheney’s. While Bush does not appear to be a Double High, the vice president is a classic Double High, including—among other things—by his “go fuck yourself” dismissal of those with whom he disagrees.[79] Cheney is the mind of this presidency, with Bush its salesman. Bush simply does not have the mental facility or inclination for serious critical analysis of the policies he is being pushed to adopt.

  Bush and Cheney saw 9/11 as an excuse to indulge their natural authoritarian and conservative instincts. In so doing, they have brought out the worst in conservatism: They have justified and rationalized their increasing use of authoritarian tactics in the name of fighting terrorism. Without terrorism, George W. Bush would have likely been a one-term president; with terrorism as a raison d’être, Bush and Cheney’s authoritarianism has not been questioned seriously enough.

  Many of the activities carried out as a result of Bush and Cheney’s authoritarianism have been labeled “radical.”[*] A partial list of synonyms for “radical” includes “extremist,” “fanatical,” “far-out,” “immoderate,” “intransigent,” “militant,” “nihilistic,” “revolutionary,” “uncompromising,” and even “lawless.”[80] Radicals are those “favoring or effecting extreme or revolutionary changes”; those “favoring drastic political, economic, or social reforms”; persons “who hold or follow strong convictions or extreme principles; extremists”; and persons “who advocate fundamental political, economic, and social reforms by direct and often uncompromising methods.”[81] The mainstream foreign press was the first to take note of the fact that the Bush administration was not in the least following a conservative agenda. For example, the Australian (November 2, 2004) observed that American “conservatives have become radicals”; the Financial Times of London (November 22, 2004) referred to “Republican radicals” being eager for more tax cuts; and the Guardian (January 23, 2005) described the Bush and Cheney administration as “one of the most radical Republican governments in recent American history.” American newspapers soon took the same viewpoint. A Boston Globe editorial (May 21, 2005) called Utah’s senator Orrin Hatch “a well-known Republican radical,” and the San Francisco Chronicle (May 20, 2005) referred to “radical Republicans.” There have been many such descriptions of today’s Republicans, but the source of their radicalism has been ignored. All of the terms used to define radicalism also accurately describe the actions of authoritarians. Just as the mainstream American news media was slow to attach the term “radical” to describe the current Republican administration and Congress, the media seems disinclined to describe the conduct underlying this radicalism as authoritarian.

  However, journalist-turned-blogger Joshua Marshall has a remarkable ability to be among the first to spot developments in Washington, as he did in identifying the authoritarianism of the Bush administration. In analyzing a speech by Al Gore on January 16, 2006,[82] addressing the Bush administration’s remarkable abuses of power, Marshall wrote, “The point Gore makes in his speech that I think is most key is the connection between authoritarianism, official secrecy and incompetence. The president’s critics are always accusing him of law-breaking or unconstitutional acts and then also berating the incompetence of his governance. And it’s often treated as, well…he’s power-hungry and incompetent to boot! Imagine that! The point though is that they are directly connected. Authoritarianism and secrecy breed incompetence; the two feed on each other. It’s a vicious cycle. Governments with authoritarian tendencies point to what is in fact their own incompetence as the rationale for giving them yet more power”[83] (italics Marshall’s).

  Among the most troubling of the authoritarian and radical tactics being employed by Bush and Cheney are their politics of fear. A favorite gambit of Latin American dictators who run sham democracies, fearmongering has generally been frowned upon in American politics.[*] Think of the modern presidents who have governed our nation—Roosevelt, Truman, Eisenhower, Kennedy, Johnson, Ford, Carter, Reagan, Bush I, and Clinton—a
nd the various crises they confronted—the Great Depression, World War II, the Korean war, the cold war, the Cuban missile crisis, the war in Vietnam, Iran’s taking of American hostages, the danger to American students in Grenada, Saddam’s invasion of Kuwait, the terrorist bombings at the World Trade Center in 1993, and Timothy McVeigh’s 1995 bombing of the federal building in Oklahoma. None of these presidents resorted to fear in dealing with these situations. None of these presidents made the use of fear a standard procedure or a means of governing (or pursuing office or political goals). To the contrary, all of these presidents sought to avoid preying on the fears of Americans. (It will be noted that Nixon is not included in this list because he did use fear in both his 1968 and 1972 presidential campaigns, and he continued to use this tactic once in office.)

  Frightening Americans, nonetheless, has become a standard ploy for Bush, Cheney, and their surrogates. They add a fear factor to every course of action they pursue, whether it is their radical foreign policy of preemptive war, their call for tax cuts, their desire to privatize social security, or their implementation of a radical new health care scheme. This fearmongering began with the administration’s political exploitation of the 9/11 tragedy, when it made the fight against terrorists the centerpiece of its presidency. Bush and Cheney launched America’s first preemptive war by claiming it necessary to the fight against terrorism. Yet it is almost universally agreed that the war has actually created an incubator in Iraq for a new generation of terrorists who will seek to harm the United States far into the future. Even well-informed friends of the Bush administration have adopted this view. Senator John McCain, in a 2004 speech to the Council on Foreign Relations, expressed his concern that we had “energized the extremists and created a breeding ground for terrorists, dooming the Arab world” in Iraq,[84] and former National Security Adviser (to Bush I) Brent Scowcroft bluntly said of the war in Iraq, “This was said to be part of the war on terror, but Iraq feeds terrorism.”[85]