Oops, there goes our democracy - it's official: we practise torture and we don't have habeas corpus

1. Republicans Give In To Bush, Betray America -- by Thom Hartmann

Senators John McCain, John Warner, and Lindsey Graham were presented with an opportunity to uphold the fundamental human right known as habeas corpus, or flinch and write a law that would retroactively make sure that George W. Bush could not be prosecuted for violations of habeas corpus in our overseas concentration camps and prisons. It was a contest between protecting the President and protecting the Constitution.

The Republican senators flinched, and in last week's so-called "compromise" chose Bush over the Constitution. In doing so, they turned their backs on a rule of law that stretches back over nearly eight centuries to an epic moment in 1215 on a meadow by the River Thames in the United Kingdom.

The modern institution of civil and human rights, and particularly the writ of habeas corpus, began in June of 1215 when King John was forced by a group of feudal lords to sign the Magna Carta at Runnymede.

Two of the most critical parts of the Magna Carta were articles 38 and 39, which established the foundation for what is now known as "habeas corpus" laws (literally, "produce the body" from the Latin - meaning, broadly, "let this person go free or else give him a trial - you may not hold him forever with charging him with a crime"). The concept of habeas corpus in the Magna Carta led directly to the Fourth through Eighth Amendments of our Constitution, and hundreds of other federal and state due process provisions.

Articles 38 and 39 of the Magna Carta said:
"38 In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it.

"39 No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land."

This was radical stuff, and over the next four hundred years average people increasingly wanted for themselves these same protections from the abuse of governmental power that the feudal lords had gotten at Runnymede. But from 1215 to 1628, outside of the privileges enjoyed by the feudal lords, the average person could be arrested and imprisoned at the whim of the king with no recourse to the courts.

Then, in 1627, King Charles I overstepped, and the people snapped. Charles I threw into jail five knights in a tax disagreement, and the knights sued the King, asserting their habeas corpus right to be free or on bail unless convicted of a crime.

King Charles I, in response, invoked his right to simply imprison anybody he wanted (other than the rich feudal lords), anytime he wanted, as he said, " per speciale Mandatum Domini Regis ."

This is essentially the same argument that George W. Bush makes today for why he has the right to detain people without charges for as much as their entire lives solely on his own say-so: because he's in charge. And it's an argument now supported on the record by these Republicans who have chosen to betray America's founding principles in exchange for peace with the White House.

Legal scholars had expected that George W. Bush's decree to the "renegade" Republicans would meet true resistance.

After all, King Charles' decree wasn't well received. The result of his overt assault on the rights of citizens led to a sort of revolt in the British Parliament, producing the 1628 "Petition of Right" law, an early version of our Fourth through Eighth Amendments, which restated Articles 38 and 39 of the Magna Carta and added that "writs of habeas corpus, [are] there to undergo and receive [only] as the court should order." It was later strengthened with the "Habeas Corpus Act of 1640" and a second "Habeas Corpus Act of 1679."

Thus, the right to suspend habeas corpus no longer was held by the King. It was exercised solely by the people's (elected and hereditary) representatives in the Parliament.

The third George to govern the United Kingdom confronted this in 1815 when he came into possession of Napoleon Bonaparte. But the British laws were so explicit that everybody was entitled to habeas corpus - even people who were not British citizens - that when Napoleon surrendered on the deck of the British flagship Bellerophon after the battle of Waterloo in 1815, the British Parliament had to pass a law ("An Act For The More Effectually Detaining In Custody Napoleon Bonaparte") to suspend habeas corpus so King George III could legally continue to hold him prisoner (and then legally exile him to a British fortification on a distant island).

Now, the third George to govern the United States, 191 years later, isn't even bothering with the civilized step that King George III of England took, of asking Congress for a temporary suspension of habeas corpus for a particular situation. Instead, he's demanding that his Republican colleagues give him the sole power to do away with habeas corpus altogether - and Bill Frist is insisting that they will push it through even over a filibuster.

It's a virtual repeat of Charles I's doctrine that a nation's ruler may do whatever he wants because he's the one in charge - " per speciale Mandatum Domini Regis ."

Article I of the Constitution outlines the powers and limits of the Legislative Branch of government (Article 2 lays out the Executive Branch, and Article 3 defines the Judicial Branch). In Section 9, Clause 2 of Article I, the Constitution says of the Legislative branch's authority: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

Abraham Lincoln was well aware of this during the Civil War, and was the first president to successfully ask Congress (on March 3, 1863) to suspend habeas corpus so he could imprison those he considered a threat until the war was over. Congress invoked this power again during Reconstruction when President Grant requested The Ku Klux Klan Act in 1871 to put down a rebellion in South Carolina.

But there is no "Rebellion or Invasion" going on in America right now.

Nonetheless, our President has locked people up, " per speciale Mandatum Domini Regis. " Some of their names are familiar to us - US citizens Jose Padilla and Yaser Hamdi, for example - but there are over ten thousand whose names we are not even allowed to know. It's a state secret, after all. Per speciale Mandatum Domini Regis.

The Founders must be turning in their graves. Clearly they never imagined such a thing in their wildest dreams. As Alexander Hamilton - arguably the most conservative of the Founders - wrote in Federalist 84:
"The establishment of the writ of habeas corpus ... are perhaps greater securities to liberty and republicanism than any it [the Constitution] contains. ...[T]he practice of arbitrary imprisonments have been, in all ages, the favorite and most formidable instruments of tyranny. ...

"'To bereave a man of life,' says he, 'or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore A MORE DANGEROUS ENGINE of arbitrary government.''' [Capitals all Hamilton's from the original.]

The question these tragic Republican senators, ultimately, propose to decide is whether our nation will continue to stand for the values upon which it was founded. And they have chosen timidity and convenience - to trash habeas corpus and the Geneva Conventions and the US War Crimes Act - instead of fulfilling their oaths of office to "defend the Constitution of the United States of America."

President Thomas Jefferson rebuked those who wanted America ruled by an iron-handed presidency that could throw people in jail without constitutional due process.
"I know, indeed," Jefferson said in his first inaugural address on March 4, 1801, "that some honest men fear that a republican government cannot be strong; that this government is not strong enough. ...

"I believe this, on the contrary, the strongest government on earth. I believe it is the only one where every man, at the call of the laws, would fly to the standard of the law, and would meet invasions of the public order as his own personal concern."

The sum of this, Jefferson said, was found in "freedom of person under the protection of the habeas corpus; and trial by juries impartially selected. These principles form the bright constellation which has gone before us, and guided our steps through an age of revolution and reformation."

When I was working in Russia some years ago, a friend in Kaliningrad told me a perhaps apocryphal story about Nikita Khrushchev, who, following Stalin's death, gave a speech to the Politburo denouncing Stalin's policies of imprisoning people without trial. A few minutes into Khrushchev's diatribe, somebody shouted out, "Why didn't you challenge him then, the way you are now?"

The room fell silent, as Khrushchev swept the audience with his eyes. "Who said that?" he asked in a reasoned voice. Silence.

"Who said that?" Khrushchev demanded angrily, leaning forward. Silence.

Pounding his fist on the podium to accent each word, he thundered, "Who - said - that?" Still no answer.

Finally, after a long and strained silence, the elected politicians in the room fearful to even cough, a corner of Khrushchev's mouth lifted into a smile.

"Now you know," he said with a chuckle, "why I did not speak up against Stalin when I sat where you now sit."

Apparently Senators Graham, Warner, and McCain have about as much spine as did the members of Khrushchev's Politburo. One wonders what sort of Stalin-like threats Bush made to get them to so completely compromise their principles and betray the trust of their country.

(Thom Hartmann is a Project Censored Award-winning best-selling author, and host of a nationally syndicated daily progressive talk show carried on the Air America Radio network and Sirius .www.thomhartmann.com His 17 published books include " The Last Hours of Ancient Sunlight ," " Unequal Protection ," " We The People: A Call To Take Back America ," " What Would Jefferson Do? " and " Ultimate Sacrifice ." His most recent book is " Screwed: The Undeclared War on the Middle Class and What We Can Do About It .")


2. Bush and Torture (Le Monde Editorial

The pressure George Bush has exerted the last several weeks to obtain a law from Congress validating the decisions he has taken in the name of his "war against terror" is about to bear fruit. The Republican senators who resisted the White House assert that they have imposed a compromise on it that respects human rights. The truth is that this apparent victory hides a capitulation on an essential point: the president of the United States sees recognized the right to authorize the CIA (Central Intelligence Agency) to employ methods of interrogation that respect neither American legislation nor international law as codified by the Geneva Conventions. Clearly stated, the agency will be able to resort to torture, as it very probably has already for four or five years in the secret detention sites situated outside the United States.

Certainly, the affair is not over, since the vigilance of the American press has touched off a controversy that obliges the senators to re-examine their position. Their leader, John McCain, former prisoner of war in Vietnam and until now unquestioned defender of international law, asserted on Sunday, September 24, on the CBS television station that Congress would have the power to reject any presidential directive it deemed not to be in conformity with the spirit of the law. On top of that, another part of the text, which eliminates the right of habeas corpus for "war against terror" detainees - mainly the prisoners at Guantanamo Bay naval base - is disputed by Senate Judiciary Committee Chairman Arlen Specter, a Republican attached to human rights' defense.

Nonetheless, there is little chance that the disposition that allows the president of the United States to enact rules that constitute an outrage to common law will be challenged during the vote that is to take place soon in the Senate and the House of Representatives. The Democrats are timorous - six weeks away from the mid-term elections that could allow them to regain the majority in the House, lost by them in 1994. For his part, Mr. McCain, potential Republican presidential candidate in 2008, is concerned not to alienate the party's right wing, which made him lose the 2000 primaries.

At the moment when a report from the "intelligence community," divulged by the New York Times, deems that the occupation of Iraq has not weakened the terrorist threat, but rather, on the contrary, aggravated it, Mr. Bush plays his customary card: to push fear of terrorism at the expense of any reflection about the means of combating it. If the United States inscribes a law authorizing the use of torture into its legislation, its enemies will have chalked up a victory.

3. The Myth of the Ticking Time Bomb -- by Alfred W. McCoy

Ask not for whom the bomb ticks, Mr. and Ms. America. Right now, across Los Angeles, timers on dozens of toxic nerve-gas canisters are set to detonate in just hours and send some two million Americans to their deaths in writhing agony.

But take hope. We have one chance, just one, to avert this atrocity and save the lives of millions. Agent Jack Bauer of the Counter Terrorist Unit has his hunting knife poised over the eye of a trembling traitor who may know the identity of those who set these bombs. As a clock ticks menacingly and the camera focuses on knife point poised to plunge into eyeball, the traitor breaks and identifies the Muslim terrorists, giving Agent Bauer the lead he needs to crack this case wide open.

As happens with mind-numbing regularity every week on Fox Television’s hit show 24, torture has once again worked to save us all from the terror of a ticking bomb, affirming for millions of loyal viewers that torture is a necessary weapon in George Bush’s war on terror.
"Major success from limited, surgical torture is a fable, a fiction. . . . As we slide down the slippery slope to torture in general, we should also realize that there is a chasm at the bottom called extrajudicial execution."

Just days before the fifth anniversary of 9/11, President Bush himself appeared live from the East Room before an audience of handpicked 9/11 families for a dramatic announcement that mimed, with eerie precision, the ticking-bomb logic of 24, which is wildly popular among Washington’s neoconservatives. With clipped, secret-agent diction reminiscent of the show’s Emmy Award-winning star, Kiefer Sutherland, Bush said he was transferring fourteen top Al Qaeda captives, including the alleged 9/11 mastermind, Khalid Sheik Mohammed, from long-secret CIA prisons to Guantánamo Bay. At once both repudiating and legitimating past abuses, Bush denied that he had ever authorized “torture.” Simultaneously, he defended the CIA’s effort to coerce “vital information” from these “dangerous” captives with what the President called an “alternative set of procedures”—a euphemism transparent to any viewer of 24.

In defense of the CIA’s past and future use of this “alternative set of procedures,” Bush told his national television audience a thrilling tale of covert action derring-do almost plucked from the pages of a script for 24. After “they risked their lives to capture some of the most brutal terrorists on Earth,” courageous American agents “worked day and night” to track down “a trusted associate of Osama bin Laden” named Abu Zubaydah. But once in custody, he was “defiant and evasive.” Knowing that “captured terrorists have . . . intelligence that cannot be found any other place,” the CIA, with White House approval, applied that “alternative set of procedures” and thereby extracted timely information that “helped in the planning . . . of the operation that captured Khalid Sheik Mohammed.” Then, “KSM was questioned by the CIA using these procedures,” producing intelligence that stopped a succession of lethal ticking bombs.

The mind-boggling catalogue of these plots, the President told us, included “Al Qaeda’s efforts to produce anthrax,” a terror assault on U.S. Marines in Djibouti with “an explosive-laden water tanker,” “a planned attack on the U.S. consulate in Karachi using car bombs,” “a plot to hijack passenger planes and fly them into Heathrow,” and “planned attacks on buildings in the United States” with bombs planted “to prevent the people trapped above from escaping out the windows.”

Of course, the President could not, he said with a knowing wink to his audience, describe “the specific methods used in these CIA interrogations” because “it would help the terrorists learn how to resist questioning.” Although these “procedures were tough,” they had proved vital, the President assured us, in extracting “information about terrorist plans we could not get anywhere else” and thus prevented Al Qaeda from “launching another attack against the American homeland.” If Congress and the Supreme Court would simply set aside their constitutional qualms about these “tough” methods, Bush concluded, then the “brave men and women” who work in this CIA program can continue “to obtain information that will save innocent lives.”

As in so many of these ticking-bomb tales, Bush’s supposed successes crumble on closer examination. Just four days later, The New York Times reported that the FBI claimed it got the key information from Abu Zubaydah with its noncoercive methods and that other agencies already had much of his supposedly “vital” intelligence.

Like President Bush, influential pro-pain pundits have long cited the ticking-bomb scenario to defend torture as a necessary evil in the war on terror. Indeed, in this most pragmatic of modern societies, we are witnessing a rare triumph of academic philosophy in the realm of national security.

More than thirty years ago, the philosopher Michael Walzer, writing about the ancient problem of “dirty hands” for an obscure academic journal, Philosophy and Public Affairs , speculated about the morality of a politician “asked to authorize the torture of a captured rebel leader who knows the locality of a number of bombs hidden in apartment buildings around the city, set to go off within the next twenty-four hours. ” [Emphasis added.] Even though he believes torture is “wrong, indeed abominable,” this moral politician orders the man tortured, “convinced that he must do so for the sake of the people who might otherwise die in the explosions.”

In all likelihood, Walzer’s writing would have remained unnoticed on page 167 of an unread journal if not for the tireless efforts of an academic acolyte, Alan Dershowitz of Harvard Law School. In newspaper op-eds and television appearances since 9/11, Dershowitz has transformed this fragmentary philosophical rumination into a full-blown case for torture by recounting a similar scenario which, often set in Times Square, “involves a captured terrorist who refuses to divulge information about the imminent use of weapons of mass destruction, such as a nuclear, chemical, or biological device, that are capable of killing and injuring thousands of civilians.”

From this hypothetical, Professor Dershowitz segues to the realm of reality: “If torture is, in fact, being used and/or would, in fact, be used in an actual ticking bomb terrorist case, would it be normatively better or worse to have such torture regulated by some kind of warrant?” Such a warrant, he tells us, would authorize interrogators to shove steel needles under Arab fingernails. Dershowitz assumes that his putative torture warrants “would reduce the incidence of abuses,” since high officials, operating on the record, would never authorize “methods of the kind shown in the Abu Ghraib photographs.”

With torture now a key weapon in the war on terror, the time has come to interrogate the logic of the ticking time bomb with a six-point critique. For this scenario embodies our deepest fears and makes most of us quietly—unwittingly—complicit in the Bush Administration’s recourse to torture.

Number one: In the real world, the probability that a terrorist might be captured after concealing a ticking nuclear bomb in Times Square and that his captors would somehow recognize his significance is phenomenally slender. The scenario assumes a highly improbable array of variables that runs something like this:

—First, FBI or CIA agents apprehend a terrorist at the precise moment between timer’s first tick and bomb’s burst.

—Second, the interrogators somehow have sufficiently detailed foreknowledge of the plot to know they must interrogate this very person and do it right now.

—Third, these same officers, for some unexplained reason, are missing just a few critical details that only this captive can divulge.

—Fourth, the biggest leap of all, these officers with just one shot to get the information that only this captive can divulge are best advised to try torture, as if beating him is the way to assure his wholehearted cooperation.

Take the case of Zacarias Moussaoui, who sat in a Minneapolis cell in the weeks before 9/11 under desultory investigation as a possible “suicide hijacker” because the FBI did not have precise foreknowledge of Al Qaeda’s plot or his possible role. In pressing for a search warrant before 9/11, the bureau’s Minneapolis field supervisor even warned Washington he was “trying to keep someone from taking a plane and crashing into the World Trade Center.” But FBI headquarters in Washington replied there was no evidence Moussaoui was a terrorist—providing us with yet another reminder of how difficult it is to grasp the significance of even such stunningly accurate insight or intelligence in the absence of foreknowledge.

“After the event,” Roberta Wohlstetter wrote in her classic study of that other great U.S. intelligence failure, Pearl Harbor, “a signal is always crystal clear; we can now see what disaster it was signaling since the disaster has occurred. But before the event, it is obscure and pregnant with conflicting meanings.”

Number two: This scenario still rests on the critical, utterly unexamined assumption that torture can get useful intelligence quickly from this or any hardened terrorist.

Advocates of the ticking bomb often cite the brutal torture of Abdul Hakim Murad in Manila in 1995, which they say stopped a plot to blow up a dozen trans-Pacific aircraft and kill 4,000 innocent passengers. Except, of course, for the simple fact that Murad’s torture did nothing of the sort. As The Washington Post has reported, Manila police got all their important information from Murad in the first few minutes when they seized his laptop with the entire bomb plot. All the supposed details gained from the sixty-seven days of incessant beatings, spiced by techniques like cigarettes to the genitals, were, as one Filipino officer testified in a New York court, fabrications fed to Murad by Philippine police.

Even if the terrorist begins to talk under torture, interrogators have a hard time figuring out whether he is telling the truth or not. Testing has found that professional interrogators perform within the 45 to 60 percent range in separating truth from lies—little better than flipping a coin. Thus, as intelligence data moves through three basic stages—acquisition, analysis, and action—the chances that good intelligence will be ignored are high.

After fifty years of fighting enemies, communist and terrorist, with torture, we now have sufficient evidence to conclude that torture of the few yields little useful information. As the ancient Roman jurist Ulpian noted 1,800 years ago, when tortured the strong will resist and the weak will say anything to end the pain.

History is replete with examples of the strong who resisted even the most savage tortures. After the July 20, 1944, bomb plot against Hitler, the Gestapo subjected Fabian von Schlabrendorff to four weeks of torture by metal spikes and beatings so severe he suffered a heart attack. But with a stoicism typical of these conspirators, he broke his silence only to give the Gestapo a few scraps of vague information when he feared involuntarily blurting out serious intelligence.

Then there are the weak. Ibn al-Shaykh al-Libi, a senior Al Qaeda leader, under torture told his captors that Iraq trained Al Qaeda in chemical and biological weapons. This raises the possibility that he, like Murad, had been tortured into giving fabricated intelligence. Colin Powell relied on this false information in his now-disavowed speech to the United Nations before the Iraq War.

As Yale legal historian John Langbein puts it, “History’s most important lesson is that it has not been possible to make coercion compatible with truth.”

Proponents of torture present a false choice between tortured intelligence and no intelligence at all. There is, in fact, a well-established American alternative to torture that we might call empathetic interrogation. U.S. Marines first used this technique during World War II to extract accurate intelligence from fanatical Japanese captives on Saipan and Tinian within forty-eight hours of landing, and the FBI has practiced it with great success in the decades since. After the East Africa bombings of U.S. embassies, the bureau employed this method to gain some of our best intelligence on Al Qaeda and win U.S. court convictions of all of the accused.

One of the bureau agents who worked on that case, Dan Coleman, has since been appalled by the CIA’s coercive methods after 9/11. “Have any of these guys ever tried to talk to anyone who’s been deprived of his clothes?” Coleman asked. “He’s going to be ashamed and humiliated and cold. He’ll tell you anything you want to hear to get his clothes back. There’s no value in it.” By contrast, FBI reliance on due process and empathy proved effective in terror cases by building rapport with detainees.

Bush’s example of Zubaydah actually supports Coleman’s point. FBI agents say they were getting more out of him before the CIA came in with gloves off.

“Brutalization doesn’t work,” Coleman concluded from his years in FBI counterterrorism. “We know that. Besides, you lose your soul.”

Number three: Once we agree to torture the one terrorist with his hypothetical ticking bomb, then we admit a possibility, even an imperative, for torturing hundreds who might have ticking bombs or thousands who just might have some knowledge about those bombs. “You can’t know whether a person knows where the bomb is,” explains Georgetown University Law Professor David Cole, “or even if they’re telling the truth. Because of this, you end up going down a slippery slope and sanctioning torture in general.”

Most of those rounded up by military sweeps in Iraq and Afghanistan for imprisonment at Abu Ghraib and Guantánamo had nothing to do with terrorism. A recent analysis of the Pentagon listing of Guantánamo’s 517 detainees reveals that 86 percent were arrested not by U.S. forces but by Northern Alliance and Pakistani warlords eager to collect a $5,000 bounty for every “terrorist” captured.

Ironically, though, torture of the many can produce results, albeit at a surprisingly high political price.

The CIA tortured tens of thousands in Vietnam and the French tortured hundreds of thousands in Algeria. During the Battle of Algiers in 1957, French soldiers arrested 30 percent to 40 percent of all males in the city’s Casbah and subjected most of these to what one French officer called “beatings, electric shocks, and, in particular, water torture, which was always the most dangerous technique for the prisoner.” Though many resisted to the point of death, mass torture gained sufficient intelligence to break the rebel underground. The CIA’s Phoenix program no doubt damaged the Viet Cong’s communist infrastructure by torture-interrogation of countless South Vietnamese civilians.

So the choices are clear. Major success from limited, surgical torture is a fable, a fiction. But mass torture of thousands of suspects, some guilty, most innocent, can produce some useful intelligence.

Number four: Useful intelligence perhaps, but at what cost? The price of torture is unacceptably high because it disgraces and then undermines the country that countenances it. For the French in Algeria, for the Americans in Vietnam, and now for the Americans in Iraq, the costs have been astronomical and have outweighed any gains gathered by torture.

Official sources are nearly unanimous that the yield from the massive Phoenix program, with more than forty prisons across South Vietnam systematically torturing thousands of suspected communists, was surprisingly low. One Pentagon contract study found that, in 1970-71, only 3 percent of the Viet Cong “killed, captured, or rallied were full or probationary Party members above the district level.” Not surprisingly, such a brutal pacification effort failed either to crush the Viet Cong or win the support of Vietnamese villagers, contributing to the ultimate U.S. defeat in the Vietnam War.

Similarly, the French army won the Battle of Algiers but soon lost the war for Algeria, in part because their systematic torture delegitimated the larger war effort in the eyes of most Algerians and many French. “You might say that the Battle of Algiers was won through the use of torture,” observed British journalist Sir Alistair Horne, “but that the war, the Algerian war, was lost.”

Even the comparatively limited torture at Abu Ghraib has done incalculable damage to America’s international prestige.

In short, the intelligence gains are soon overwhelmed by political costs as friends and enemies recoil in revulsion at such calculated savagery.

Indeed, the U.S. Army’s current field manual, FM: Intelligence Interrogation 34-52 , contains an implicit warning about these high political costs: “Revelation of use of torture by U.S. personnel,” it warns, “will bring discredit upon the U.S. and its armed forces while undermining domestic and international support for the war effort.”

Number five: These dismal conclusions lead to a last, uncomfortable question: If torture produces limited gains at such high political cost, why does any rational American leader condone interrogation practices “tantamount to torture”?

One answer to this question seems to lie with a prescient CIA Cold War observation about Soviet leaders in times of stress. “When feelings of insecurity develop within those holding power,” reads an agency analysis of Kremlin leadership applicable to the post-9/11 White House, “they become increasingly suspicious and put great pressures upon the secret police to obtain arrests and confessions. At such times, police officials are inclined to condone anything which produces a speedy ‘confession,’ and brutality may become widespread.” In sum, the powerful often turn to torture in times of crisis, not because it works but because it salves their fears and insecurities with the psychic balm of empowerment.

As we slide down the slippery slope to torture in general, we should also realize that there is a chasm at the bottom called extrajudicial execution. With the agency’s multinational gulag full of dozens, even hundreds, of detainees of dwindling utility, CIA agents, active and retired, have been vocal in their complaints about the costs and inconvenience of limitless, even lifetime, incarceration for these tortured terrorists. The ideal solution to this conundrum from an agency perspective is pump and dump, as in Vietnam—pump the terrorists for information, and then dump the bodies. After all, the systematic French torture of thousands from the Casbah of Algiers in 1957 also entailed more than 3,000 “summary executions” as “an inseparable part” of this campaign, largely, as one French general put it, to ensure that “the machine of justice” not be “clogged with cases.” For similar reasons, the CIA’s Phoenix program produced, by the agency’s own count, over 20,000 extrajudicial killings.

Number six: The use of torture to stop ticking bombs leads ultimately to a cruel choice—either legalize this brutality, à la Dershowitz and Bush, or accept that the logical corollary to state-sanctioned torture is state-sponsored murder, à la Vietnam.

(Alfred W. McCoy, the J.R.W. Smail Professor of History at the University of Wisconsin-Madison, is the author most recently of “ A Question of Torture: CIA Interrogation, from the Cold War to the War on Terror .”)


4. A World Beyond The Law -- by hilzoy (from Obsidian Wings)

In my last post, I asked the question: why are Lindsey Graham and the administration so eager to strip detainees of their legal rights? I considered various arguments that they have advanced, and as far as I can tell, they don't really hold up. Detainee cases are not clogging the courts, and while they might interfere with interrogations by, for example, breaking detainees' isolation and giving them a ray of hope, they do not in any way make it impossible for those interrogations to continue.

So why are they doing this? Everyone has probably figured this out long before I did, but: I was thinking of the habeas-stripping provisions from the point of view of a detainee, who might wonder: what legal recourse do I have if this bill goes through? How can I protest my detention if, for instance, I have been found innocent but not released, or if I have been tortured? The answer to that question is, as far as I can tell, 'you have no recourse'; and that horrified me.

But then it occurred to me to think of it from a different angle: from the perspective of the system of extraterritorial prisons that we seem to be setting up. From that point of view, the main question raised by the "compromise" bill (pdf) is a different one, namely: who has the right to question, in a court of law, any aspect of our treatment of alien combatants held outside the US? As far as I can tell, with very limited exceptions, the answer to this question is: no one but the very same government that set the system up in the first place.

This means, basically, that this bill will remove the entire system of detention , with the exception of its military commissions and combatant status review tribunals, from any judicial oversight at all .

Courts do not get to decide for themselves to investigate some activity that they suspect might violate the law. In order for a court to consider the question whether something is lawful, someone has to bring them a case that raises that question. By preventing anyone but the government from bringing any such case, this bill ensures that unless the government decides to bring one itself, no case that would give the courts a reason to consider anything that goes on during a prisoner's detention and interrogation can ever be brought. Which is to say: it removes the entire system of detention , except for its military commissions and CSRTs, from any judicial review. Literally anything could be going on during interrogation and detention, and the courts would have no way to pronounce on its legality, or to require anything to change.

To see why, consider some sections of the "compromise bill". First, it would add to the statute governing habeas corpus the following provision:
"(c)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who --
(A) is currently in United States custody; and

(B) has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

(2) Except as provided in paragraphs (2) and (3) of section 1005(c) of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien detained by the United States who --
(A) is currently in United States custody; and

(B) has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination." (p. 82)

(Note: paragraphs (2) and (3) of section 1005(c) of the Detainee Treatment Act of 2005 basically say that courts can hear cases brought by alien detainees only if those cases allege that their civilian status review board or military tribunal did not follow their own rules, or that those rules are not themselves consistent with the laws or the Constitution.)

This applies to all cases pending when the bill becomes law, and of course to any that are filed thereafter. What it means is: no alien detained by the US can file any civil suit about anything other than: whether his tribunal or commission followed its own rules, and whether those rules are legal or constitutional. Specifically, they cannot file suits alleging that they have been tortured during detention, that war crimes have been committed against them, that their rights are being interfered with outside their commission or tribunal, or anything else of the kind. Nor, if their commission or tribunal has found them innocent but the government does not release them, can they protest their continued detention in court.

Basically: no civil suits relating to the conditions in which detainees are detained or interrogated are allowed by this law. Civil suits can be brought by private individuals. Criminal charges, on the other hand, can be brought only by the government. By preventing detainees from bringing civil cases based on the conditions of their detention and interrogation, this bill prevents anyone other than the government from bringing those conditions to the attention of the courts. In so doing, it leaves the question whether the courts will ever have occasion to consider the conditions and practices in extraterritorial detention facilities entirely up to the very same government that instituted those conditions in the first place.

Specifically: the "compromise bill" bans certain forms of torture. As Marty Lederman and others have argued, it defines torture much too narrowly. However, even if its definition of torture were absolutely impeccable, ask yourself this question: how, exactly, would it be enforced? How could the Courts even take cognizance of any torture that might be going on , given that any habeas claim, and "any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien detained by the United States" is prohibited?

As far as I can see, the answer is: unless the government brings criminal charges against someone, it couldn't. We could be waterboarding every single detainee every single day; we could be pulling out their toenails with pliers; we could be beating every one of them to a pulp, or asphyxiating them, or sending serious electric currents through their genitalia, or keeping them awake for weeks on end until they became psychotic, or running them over with trucks, and the courts would have no way to stop it .

In any other context, creating such a system would strike us as ludicrous. It would be crazy to set things up in such a way that the question whether the court could take cognizance of an act of recklessness or negligence, or a crime like bank robbery, were left up to the person who had committed it. "Hmm", one imagines someone whose reckless indifference to human life lead to thousands of deaths thinking to herself, "should I allow the courts to look into my conduct, and possibly sanction me? Gosh: what a tough question!" "Heavens," a rapist might add, "I am equally baffled by the question: should I allow the courts to take cognizance of my forcing people to have sex with me? What a conundrum!" And while they were sitting around scratching their heads, their actions would remain entirely beyond the law.

There's no reason I can think of why this should be different. Even if we knew that the present government scrupulously obeyed the law, it would be a terrible mistake to give the government, for the foreseeable future, the power to decide whether the courts could ever consider the conditions in which thousands of people were detained. In the case of this administration, however, it would be insane.

We know that this administration has consistently interpreted the laws governing detention to permit as much as possible. We also know that it takes the position that it has the right to break laws at will. (Article 2 powers, doncha know.) We know that it has a record of abusing detainees, and that in some cases they have tortured people to death . Why on earth would we want to let them completely remove their detention program from any judicial oversight?

***

Sandy Levinson writes :
"One of the first things contemporary law students learn is that one cannot separate "rights" from "remedies." This basically goes back to Oliver Wendell Holmes' argument, made most concisely in "The Path of the Law" (1897) that a "bad man" interested in knowing what "the law" is will be concerned not with "the law on the books" (Roscoe Pound's term), but, rather "the law in action" (ditto), which means, practically speaking, a "prediction" that the iron fist of the state, usually operating through courts, will be brought to bear if the "bad man" violates the law. If there is in fact no iron fist, then, for the "bad man" at least, there is no law, for there is no cost at all to violating it and the "bad man," by Holmesian definition, is a pure Chicago-type economist concerned only with calculation of costs (the "payment" exacted by the state) and benefits (the gains for one's actions)."

The "compromise bill" defines torture much too narrowly, and it inexcusably allows the President to decide what many of its prohibitions actually mean. But those rights it does create are virtually meaningless, since it not only fails to provide any remedy to those whose rights are violated; it goes to great lengths to ensure that no remedy is available to them. Especially in the hands of the Bush administration, its "protections" are not worth the paper they are printed on.

Levinson goes on to ask:
"So are we on our way toward an American version of what Ernst Fraenkel termed "The Dual State" (1941), in which a fairly ordinary legal-state co-existed with a lawless one that felt free to do just whatever it wanted vis-a-vis its ideological opponents, secure in the knowledge that there would never be a legal remedy (at least not until Nuremberg) for anything the regime did?"

He then considers whether it's appropriate to compare the Bush administration to the Nazis. He answers 'no', as I would. But that concerns the question: would we be likely to use the sort of structure Fraenkel describes in ways that are comparably awful? Would we, for instance, embark on genocide? Presumably not.

But if we restrict ourselves to the much more straightforward question: are we, in fact, on our way to creating the sort of structure Fraenkel describes?, we don't need to get into those questions. We can say that we, like the Weimar Republic, have a legislature, without having to get into the question whether we and they have used our legislatures in the same ways. Likewise, we can ask whether we are on the way to creating a dual state, "in which a fairly ordinary legal-state co-existed with a lawless one that felt free to do just whatever it wanted vis-a-vis its ideological opponents, secure in the knowledge that there would never be a legal remedy", without implying anything about whether, if so, we are likely to use it the ways the Nazis did. This is a simple question of legal structure*.

As far as I can tell, the answer to the question whether we are on the way to creating a dual state is: yes, and if the "compromise bill" passes, we will actually have arrived. We will, in fact, have two legal worlds: our world, in which people have legally enforceable rights, and the shadow world of the detainees, in which literally anything can be done with impunity, and there are no courts to appeal to.

A country that contains such a shadow world is not the country I love. And this bill is unworthy of my country.

You can find your Senators' contact information here , and your Representative's information here (enter zip code at top left.) Call them and let them know how you feel. This is not partisan; it's about whether or not we live under the rule of law, in a country that cares about basic justice.

***

* In saying that the question whether we have a dual state is a simple question of legal structure, I don't mean to imply that having such a structure wouldn't, in all likelihood, lead very bad things to happen. I only mean to distinguish the question: do we have that structure? from the quite different question: are we as bad as the Nazis? so that I can say 'no' to the second, and get back to the first.

Having a legal structure that's a standing invitation to torture is quite bad enough. Getting into questions about whether we're as bad as Nazis just makes it easier to overlook this while we congratulate ourselves on the dubious achievement of not being as bad as one of the worst countries in history. I am not interested in stupid comparisons; I care a lot more about trying to figure out how we can be the best country we can possibly be, and what I can to do help us get there.