c. 2004 Religion News Service

(UNDATED) President Bush’s nomination of White House counsel Alberto R. Gonzales to succeed John Ashcroft as attorney general _ now fueled by reports of more Red Cross complaints about U.S. treatment of detainees at Guantanamo _ will almost certainly raise the way the shadow of torture falls across U.S. policy in the war on terror and the war against Iraq.

But whether the confirmation hearings on Gonzales will generate anything more than superficial probing by the Senate and circumspect dancing around the ethical questions by the nation’s public intellectuals remains an open question.

Gonzales’ confirmation hearing is likely to spark a renewed debate because he is the author of a controversial memorandum to Bush labeling some provisions of the Geneva Convention on the treatment of prisoners of war “obsolete” and others “quaint.” In his view, the Sept. 11 attacks and Bush’s declaration of “a new kind of war _ the “war on terrorism” _ created “a new paradigm” requiring the government be given carte blanche authority to pursue the nation’s enemies.

Almost certain to deepen the controversy are the new reports (Nov. 30) that the International Committee of the Red Cross has told the U.S. government interrogation techniques used on the more than 500 detainees at the Guantanamo prison in Cuba are “tantamount to torture.”

Additionally, the more aggressive U.S. military operations in Iraq over recent weeks have generated a new surge in detainees, nearly doubling the number previously held to some 8,300.

The 2002 Gonzales memo sought to resolve for Bush a dispute between the State Department, which said determination of Geneva Convention status for Taliban and al-Qaida prisoners should be made on a case-by-case basis, and Ashcroft’s Department of Justice, which argued no such protections existed. Gonzales came down on Justice’s side.

On Feb. 7, 2002, Bush, in what scholar and journalist Mark Danner has called the Original Sin of the administration’s approval of torture, decided to withhold Geneva Convention protection from al-Qaida and Taliban prisoners.

“… it made legally possible,” Danner writes in “Torture and Truth” (New York Review Books) “the adoption of the various `enhanced interrogation techniques’ that have been used at CIA secret prisons and at the U.S. military’s prison at Guantanamo Bay.”

According to Danner, decisions made by Bush and the administration in the wake of Sept. 11 _ the decision to imprison indefinitely those seized in Afghanistan and elsewhere, the decision to designate those prisoners as `unlawful combatants’ and to withhold from them the protections of the Geneva Convention, and the decision to use “high pressure” interrogation methods _ were “officially to transform the United States from a nation that did not torture to one that did.”

The Geneva Convention against torture of prisoners, which went into force in 1987 and has been ratified by some 130 countries, does not allow the kind of distinction Gonzales made in his memo to Bush and that the administration invoked to defend torturing terrorist suspects at Guantanamo.

In fact, a key article in the convention, as Sanford Levinson of the University of Texas Law School has pointed out, says that “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture.” Presumably that would include a “war on terror.”

But as the “war on terror” evolved into the war on the sovereign nation of Iraq there has been little or no public discussion of the ethical or moral implications of the decisions taken at the highest reaches of the administration.

Instead, the administration has either declared that _ as in the case of the Gonzales memo _ international law is “obsolete” or “quaint” and therefore does not apply to it or, in the case of the Abu Ghraib prisoner abuse scandal, where even the administration acknowledges international law does apply, that it was “a few bad apples” who were responsible for the abuse.

Neither argument is either factually persuasive or morally compelling.

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Significantly, nearly absent from the three major administration reports on the abuse at Abu Ghraib is any discussion of the ethical issues involved. The Schlesinger report, named after former Secretary of Defense James R. Schlesinger, who headed the investigation, contains a cursory 21/3 pages appendix on ethical issues urging more and better ethics education programs.

The military’s current “core-values” programs, it concludes, “are grounded in organizational efficacy rather than the moral good.

“They do not address humane treatment of the enemy and noncombatants, leaving military leaders and educators an incomplete tool box with which to deal with `real-world’ ethical problems.”

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Although most people instinctively reject any effort to morally defend or justify torture as offensive that does not mean that a reluctant and ethically nuanced case for the rare use of torture cannot be attempted.

Indeed, the eminent ethicist Michael Walzer, in a now-classic essay, “Political Action: The Problem of Dirty Hands,” reprinted in the very useful “Torture, A Collection” (Oxford University Press), edited by Sanford Levinson, builds just such a case.

Walzer argues for the necessity of having political leaders who in extreme circumstances are willing to “dirty their hands” by engaging in actions that go beyond the moral rules.

But, as Levinson notes, the “saving grace” for Walzer, if that is an appropriate phrase, is in the leader’s willingness to accept responsibility and feeling suitably guilty about what most people would wish were an “absolute” prohibition.

There is no indication among top Bush administration officials, including the president himself, that there are either suitable feelings of guilt or a willingness to assume responsibility for the acts.

It seems likely, therefore, that even with the new revelations of mistreatment of detainees at Guantanamo, the ethics and politics of U.S. involvement in torture will remain off the agenda of public discussion of America’s moral values.

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(David Anderson is senior editor of Religion News Service)