The war in Iraq has given birth to an issue that may one day be seen as more important than the war, the question of torture. Just as H.J. Res. 114, by which Congress authorized the war, was the key vote for that conflict, so now the vote whether to confirm White House Counsel Alberto Gonzales as Attorney General will very likely be the key vote in regard to torture. At the recent Senate Judiciary Committee hearings on the nomination, the senators seemed almost as interested in flattering one another as in examining the nominee. The former committee chair, Senator Orrin Hatch, did not thrust a lighted cigarette into the ear of Senator Patrick Leahy. Senator Joseph Biden did not “waterboard” Senator John Cornyn — that is, he did not strap Senator Cornyn to a board and thrust his head under water, holding him there until he believed he was being drowned. Senator Arlen Specter did not force Senator Russ Feingold to eat his lunch from a toilet. Senator Biden did not strip Senator Mike DeWine naked, attach a leash to his neck and force him to crawl around the hearing-room floor. Senator Specter did not kill Senator Edward Kennedy and then pose for a photograph next to his corpse, making a thumbs-up sign.

On the contrary, the senators showered one another with compliments. Senator Hatch held up Senator Specter, the new chairman of the Judiciary Committee, as “one of the best lawyers we’ve had serve in the United States Senate.” Senator Biden agreed, calling Senator Specter “the finest constitutional lawyer in the country — maybe not the country, but in the Senate (laughter).” Senator Leahy called Senator Hatch “one of the most experienced lawyers ever to serve.” The senators praised Gonzales, too. His “beautiful family” (Specter), including his mother-in-law, was introduced and feted.

And yet the acts mentioned above, all performed by U.S. forces upon prisoners in Iraq or elsewhere, were the actual substance of the hearing. Under the President served by Gonzales, torture has become endemic, and the lines of connection between the nominee’s advice and those acts were clear and undeniable. In a memo to the President, Gonzales advised that the Geneva Conventions did not apply either to Al Qaeda or Taliban soldiers in Afghanistan. He opined that if the conventions were set aside by the President, any soldiers accused under the US War Crimes Act might defend themselves against the charges of having committed war crimes under US Code Section 2441 of American law. He wrote the President, “Your determination [that the Conventions didn’t apply] would create a reasonable basis in law that Section 2441 does not apply, which would provide a solid defense to any future prosecution.”

In other words, his advice was to throw out international law so that torturers could escape the consequences of U.S. law. He solicited and participated in the preparation of a memo in the Justice Department that redefined torture only as the kind that might destroy bodily organs or kill the victim. That same memo stated that the President alone has the power to make rules for the treatment of prisoners, although the Constitution declares that “Congress shall have power to make rules concerning captures on land and water.” He oversaw an interdepartmental discussion in which waterboarding and other forms of torture were condoned.

The senators’ language regarding torture reflected, with exceptions, the horror of the matter as dimly as their flowery praise of one another. None, it is true, went as far as to suggest that restrictions on the abuse of prisoners were “unilateral disarmament,” as a recent Wall Street Journal editorial did. Most of the senatorial defenders of Gonzales’s record concentrated on denying his responsibility for one or another of the damning memos. More striking were the arguments against torture by those skeptical of the nomination. Two dominated. One was that torture hurts the image of the United States in the world. In the words of Senator Lindsey Graham, “I can tell you that it is a club that our enemies use, and we need to take that club out of their hand.” Or in the words of Senator Herb Kohl, “winning the hearts and minds of the Arab world is vital to our success in the war on terror,” and “Photographs that have come out of Abu Ghraib have undoubtedly hurt those efforts.” The second argument was that enemy forces would torture U.S. forces in retaliation. In Biden’s words, “This is about the safety and security of American forces.” Even Gonzales, who declined at every opportunity to repudiate the policies that had led to the torture, was ready to agree that Abu Ghraib had harmed the image of the United States.

But are these the fundamental reasons that torture is unacceptable? Can this nation now understand pain only if it is experienced by Americans or, through some chain of consequences, it rebounds upon the United States? Have all the people in the world but Americans become invisible to Americans?

Torture is not wrong because someone else thinks it is wrong or because others, in retaliation for torture by Americans, may torture Americans. It is the torture that is wrong. Torture is wrong because it inflicts unspeakable pain upon the body of a fellow human being who is entirely at our mercy. The tortured person is bound and helpless. The torturer stands over him with his instruments. There is no question of “unilateral disarmament,” because the victim bears no arms, lacking even the use of the two arms he was born with. The inequality is total. To abuse or kill a person in such a circumstance is as radical a denial of common humanity as is possible. It is repugnant to learn that one’s country’s military forces are engaging in torture. It is worse to learn that the torture is widespread. It is worse still to learn that the torture was rationalized and sanctioned in long memorandums written by people at the highest level of the government. But worst of all would be ratification of this record by a vote to confirm one of its chief authors to the highest legal office in the executive branch of the government.

Torture destroys the soul of the torturer even as it destroys the body of his victim. The boundary between humane treatment of prisoners and torture is perhaps the clearest boundary in existence between civilization and barbarism. Whether the elected representatives of the people of the United States are now ready to cross that line is the deepest question before the Senate as it votes on the nomination of Alberto Gonzales.

Jonathan Schell is the Harold Willens Peace Fellow at the Nation Institute. His most recent book is The Unconquerable World.

Copyright C2004 Jonathan Schell

[This article will appear in the upcoming issue of The Nation magazine. It appeared online at Tomdispatch.com, a weblog of the Nation Institute, which offers a steady flow of alternate sources, news, and opinion from Tom Engelhardt, long time editor in publishing and author of The End of Victory Culture and The Last Days of Publishing.]

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