When The Department of Justice Office of Legal Counsel's Steven Bradbury appeared before Congress on Valentine's Day, he came bearing the present of comforting clarifications.
In truth, what he gave was more of the continual clouding of our relation between state power and illicit violence.
Bradbury was there, it seemed, to assuage the "reasonable" fears about America's policy of interrogation that many, in Bradbury's eyes, misconstrue as torture. It was meant to affirm how carefully the U.S. operates during its enhanced interrogation so as to measure its application of "pressure" in the search for intelligence. "The program [of interrogation,]" Bradbury told the House Subcommittee on the Constitution, Civil Rights, and Civil Liberties, "is operated in a professional manner, and all the methods of interrogation authorized for the program are subject to strict limitations and safeguards."
According to Bradbury, while water-boarding is no longer being used -- though he spoke of it in the present tense -- if it were to be used in the future:
"First, the Director of the CIA, together with the Director of National Intelligence, would have to determine that the new method is necessary to obtain information on terrorist attack planning or the location of senior al Qaeda leadership; second, the Attorney General would have to conclude that the use of the method, subject to all conditions, limitations, and safeguards proposed for its use, would be lawful under current law (and that includes the requirements of the Detainee Treatment Act, the Military Commissions Act, and Common Article 3); and, three, even if the Attorney General concludes that the method’s use is lawful, the President would have to personally authorize its use. In addition, Congress would be appropriately notified—including, per the commitment from the Attorney General, specific notification to the Judiciary Committees if there were a plan to add waterboarding to the program. Let me be clear, though: There has been no determination by the Justice Department that the use of waterboarding, under any circumstances, would be lawful under current law."In other words, while water-boarding has not been determined lawful "under any circumstances," it remains lawful under certain circumstances, as determined by the Intelligence Directors and the Attorney General. Furthermore, the OLC simply does not consider the technique to be torture. The standard that "shocks the conscience" is not met because for those making the decision there may not be a conscience vulnerable to shock. The standard of extreme mental and physical suffering is rejected by the OLC because the CIA method is regulated, regimented, and much closer to to modern variants of the Khmer Rouge and French in Algeria than the medieval excesses of the Spanish Inquisition.
On the one hand, there should be nothing surprising in this. As Talal Asad outlines in his essay, "Reflections on Cruelty and Torture," the codification of pain has long been a means for modern liberal-democracies to integrate the very processes of power they denounce as antithetical to their "values." His prime example is Israel, which forbids the use of torture, but allows "pressure" to extract confessions and garner evidence. How many turns of the screw are allowed? The answer to this question of how much is given by a "classified annex . . . defining [what is] permissible." What is permissible is that which is not deemed gratuitous to the objective ends. In the U.S., defenders of the administration -- like members of the House Subcommittee or Supreme Court Justice Scalia or Bradbury and John Yoo -- use the objective ends, the circumstances, to eliminate the consideration of means. For Asad, this is just one example in a culturally complex relation of "pain" and permission.
On the other, the grotesque rhetorical gestures of Mr. Bradbury and his many ideological defenders call to mind another complex relation of violence and law, now unavoidable:
"Fascist movements seek the monopoly of non-legitimate violence: that is why they require the rule of law, which they undermine. They seek to overturn the age-old impulse and wisdom of politics: that to guarantee my self-preservation and the protection of my individually usurped property, I must grant the same guarantees to the persons and property of others. Fascist movements want universal law to apply so that they may have no rivals in their use of non-legitimate violence." (Gillian Rose, Mourning Becomes the Law)
