c. 2006 Religion News Service

(UNDATED) Disturbing evidence in recent weeks gives every indication that the Bush administration is essentially planning to ignore the McCain amendment, approved overwhelmingly (90-9 in the Senate, 308-122 in the House) by the Republican-led Congress last month. This amendment banned all U.S. personnel from inflicting “cruel, inhuman or degrading” treatment on any prisoner held by our country here or abroad. If honored, it would stop torture or behavior in the neighborhood of torture, both of which have occurred since the war on terror began.

I watched the joint appearance by Bush and McCain in the White House in December. It sure looked like President Bush understood that his administration’s position on this issue had been overwhelmingly rejected by the Republican-led Congress and that he was giving way to the will of the Legislature.

But since that event, administration lawyers have argued that the McCain amendment does not, for example, mean that the especially terrifying act of waterboarding (simulated drowning) is ruled out. Nor are other techniques that fall just short of torture, such as mock execution, painful shackling, sleep deprivation and religious humiliation, necessarily ruled out.

Meanwhile, the presidential signing statement for the bill included a huge loophole. The administration would interpret the new law “in a manner consistent with the constitutional authority of the president to supervise the unitary executive branch … and consistent with the constitutional limitations on the judicial power.”

The president has already argued that this expansive executive power includes (in wartime) the right to ignore certain laws passed by Congress, and the supposed limits on judicial authority include the claim that foreign prisoners have no right to make any appeals to American courts related to claims of cruel treatment (or their detention itself).

I want to step back from this particular problem to reflect on the deeper challenge posed to our democracy.

The structures of our democracy have been established to rely as little as possible on trust. The framers knew that human beings are self-interested, subject to error and attracted to power. They separated the powers of government, instituted various processes of review, ensured a free press, guaranteed the right of citizens to dissent without government harassment, and set up timely elections so that power would be transferred routinely from one person to the next. They also set up procedures for the removal of government officials from power and for their criminal prosecution if appropriate. These measures demonstrated hard-eyed realism about human nature and have rescued us from disaster many times through the centuries.

Still, the great powers that are entrusted to the various arms of government are terrifying in their scope unless leaders in all three branches can be counted on to undertake their work with goodwill, a commitment to obey the law and honor the Constitution, and a straightforward submission to the lawful limits and corrections imposed by the other branches of government. If such commitments and practices are not present, then all that remains is sheer power.

Government officials do what they can get away with and no one can stop them. In the end, democracy itself is threatened. At the very least, abuses of power continue until the cumbersome process of accountability finally stops such abuses or removes their practitioners.

I am beginning to wonder whether we are nearing that kind of crisis point with this administration.

The torture issue makes for a very good test case. Here we have a kind of behavior very clearly ruled out by the Congress. The president could have vetoed this bill, but instead he publicly agreed to its provisions. Therefore, it was reasonable to trust that he would instruct his people to make sure that it was honored. Instead he and his lawyers began finding ways around the legislation before the ink was dry.

This is wrong at every level. It is wrong as a matter of substance. But even if you somehow believe that torture is fine, it’s still wrong, because it is a matter of the rule of law in a constitutional democracy.

MO/PH END RNS

(David P. Gushee is the Graves Professor of Moral Philosophy at Union University in Jackson, Tenn.)

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