THINKING FOR OURSELVES

“Significant damage”

By Shea Howell

Michigan Citizen, Mar.2-8, 2008

Almost lost in mind-numbing media coverage of the presidential campaign was a new drama unfolding in Washington, the disclosure by the Justice Department that its internal ethics office is investigating the lawyers who gave legal approval to waterboarding.

The disclosure by H. Marshall Jarret, the head of the Department’s Office of Professional Responsibility, was the first official acknowledgement of a serious review of the legal justifications of this practice given by the Department in 2002.

This report, and its promised public version, will look at the justifications created by the Bush administration to give the CIA the authority to use torture in its secret interrogations progam. This comes shortly after the admission by CIA director, General Michael Hayden, that the CIA used waterboarding in interrogating three suspected al Qaeda members. Attorney General Michael Mukasey has refused Congressional demands for an investigation, saying that CIA officers could not be prosecuted for actions the Justice Department said were legal.

Now those members of the Justice Department who offered these legal opinions will be scrutinized. The investigation will focus on the lawyers who wrote the memoranda granting this authority. It will probe “the circumstances surround the drafting” of a memorandum dated August 1, 2002 that declared interrogation methods were not torture unless they produced pain equivalent to that causing organ failure or death.

The investigation will also address still secret legal opinions written in 2005 by Steven G.Bradbury, then and now the acting head of the Office of Legal Counsel, which gave approval for waterboarding and other tough methods, even when used in combination.

These investigations follow Congressional action last week to again ban coercive interrogations. President Bush has pledged to veto this latest effort.

This is nothing new. The Bush administration has long asserted that the president, during wartime, has extraordinarily broad powers. But this claim has deeper roots than the attacks of 9-11 and the so-called new world order that Bush, Cheney and all claim justify doing anything they want to in the name of national security and the war on terror.

The roots of this kind of brutality are twisted into a way of thinking that is endemic to the rightwing forces that have taken over our government. Sixteen years ago this week in the case of Hudson v. McMillian, the U.S. Supreme Court rejected arguments claiming the abuse of prisoners was fine, as long as it left no “significant damage..” Writing for the majority, Justice Sandra Day O’Connor held that excessive use of force by prison guards may constitute cruel and unusual punishment even though prisoners did not suffer serious injury.

Dissenting was none other than Justice Clarence Thomas. In one of his first written arguments, Thomas claimed, “A use of force that causes only insignificant harm to a prisoner may be immoral, it may be tortuous, it may be criminal and it may even be remedial under other provisions of the Federal Constitution, but it is not cruel and unusual punishment.”

In this case the prisoner, Keith Hudson, was handcuffed, shackled, hit in the mouth, eyes, chest and stomach, hard enough to loosen his teeth and crack his dental plate. All of this happened while a supervisor stood by and told the officers “not to have too much fun.”

O’Connor flatly rejected Thomas’s claim that only organ failure or death concerned the Court. She said such narrow thinking ignored “the concepts of dignity, civilized standards, humanity, and decency that animate the Eight Amendment.”

Let’s hope this new investigation opens a serious discussion on the significant damage to our souls created by such monstrous thinking.

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