More comments on our Torturer-In-Chief and his fearless habeas corpus killers

1. Let's Hear It for the "Mavericks!" -- by William Fisher

Ever since the Supreme Court ruled in Hamdan v. Rumsfeld that the president of the United States is not a king, our media has been obsessed with the "rebellion" of three "maverick" Republican senators who said they refused to accept the White House version of a new law governing how we treat and detain alleged terrorists.

Journalists had a ball, writing endlessly about these three brave guys who had the courage to break with the president and push back against the White House to "preserve the moral high ground" for the United States. Common Article 3 of the Geneva Conventions would be sacrosanct. People held in US detention would not be tortured. They would be afforded fair trials and the right to appeal if convicted. They would be able to go to a real court to challenge the basis of their detention. They would have the right to see the evidence the government had against them. Evidence obtained by coercion would be inadmissible. The president would no longer be able to act unilaterally to consign the accused to a never-ending legal limbo by declaring them enemy combatants who would never be charged or tried, just held until the end of this "long war" on terror.

Following Hamdan, these and many similar issues would require Congressional authorization. So the administration sent a bill to The Hill that gave our legislators the extraordinary opportunity to pass a law authorizing virtually everything the Supreme Court said the president couldn't do on his own.

The "mavericks" said they weren't buying it. This was big news, considering who wasn't buying. First there was Mr. Establishment himself, the courtly chairman of the Senate Armed Services Committee, Senator John Warner of Virginia. Then there was the "fiercely independent" Senator John McCain of Arizona, a leading presidential hopeful whose resume, including years as a P.O.W. in the Vietnam War, makes him the quintessential American hero. Finally, there was Senator Lindsey Graham of South Carolina, an Air Force Colonel who has spent some 20 years as a military lawyer and judge, a JAG.

Their negotiations with the White House were bolstered by such luminaries as soldier-statesman Colin Powell, who wrote that he feared American treatment of detainees threatened to undermine America's position of moral leadership. The commentariat bit its fingernails. The media continued to scribble and vent.

So what happened? On Thursday, September 28, 2006, we found out. The "mavericks" caved. They crafted a bill that gave the president virtually everything he asked for. And a large majority of House and Senate members, including some Democrats, caved in lockstep, their eyes transfixed with fear on the upcoming mid-term elections and the threat of being labeled "soft on terror." As summarized by the Washington Post, these are a few items contained in the bill the president will likely sign into law next week:

Enemy Combatants: A dangerously broad definition of "illegal enemy combatant" in the bill could subject legal residents of the United States, as well as foreign citizens living in their own countries, to summary arrest and indefinite detention with no hope of appeal. The president could give the power to apply this label to anyone he wanted.

The Geneva Conventions: The bill would repudiate a half-century of international precedent by allowing Mr. Bush to decide on his own what abusive interrogation methods he considered permissible. And his decision could stay secret - there's no requirement that this list be published.

Habeas Corpus: Detainees in US military prisons would lose the basic right to challenge their imprisonment.

Judicial Review: The courts would have no power to review any aspect of this new system, except verdicts by military tribunals. The bill would limit appeals and bar legal actions based on the Geneva Conventions, directly or indirectly. All Mr. Bush would have to do to lock anyone up forever is to declare him an illegal combatant and not have a trial.

Coerced Evidence: Coerced evidence would be permissible if a judge considered it reliable - already a contradiction in terms - and relevant.

Secret Evidence: American standards of justice prohibit evidence and testimony that is kept secret from the defendant, whether the accused is a corporate executive or a mass murderer. But the bill ... seems to weaken protections against such evidence.

Offenses: The definition of torture is unacceptably narrow, a virtual reprise of the deeply cynical memos the administration produced after 9/11. Rape and sexual assault are defined in a retrograde way that covers only forced or coerced activity, and not other forms of nonconsensual sex. The bill would effectively eliminate the idea of rape as torture.

But here's arguably the most cynical provision of the bill. While it would bar military commissions from considering testimony obtained through interrogation techniques that involve "cruel, unusual or inhumane treatment or punishment," this bar would be retroactive only to December 30, 2005 - when Congress adopted the Detainee Treatment Act - to protect CIA operatives from possible prosecution over interrogation tactics used before that date.

So much for the "rebels" pushing back against the White House. Messrs. Warner, Graham, and McCain deserve the nation's thanks. Thanks, Mavericks!

Despite the overwhelmingly depressing outcome of the debate on the Senate floor Thursday, there were a few heroes, albeit unsuccessful heroes. One of them was the Republican chairman of the Senate Judiciary Committee, Arlen Specter of Pennsylvania, whose civil yet impassioned plea to strip the bill of its anti-habeas corpus provision may one day join Calhoun, Clay and Webster on the list of the Senate's greatest orations.

Specter, perhaps best known for presiding over hearings for Supreme Court nominees, was joined by the equally impassioned Vermont Democrat, Senator Patrick Leahy - whose speech was more predictable but no less eloquent. Lamentably, they both lost.

Our once-rockstar Secretary of Defense, Donald Rumsfeld, keeps referring to the detainees at Guantanamo Bay as "the worst of the worst." But five years after 9/11, none of these worst has been tried, and the Bush administration appears to have little interest in trying them. Except for the 14 recently moved to Gitmo from the CIA's secret prisons. And it remains unclear whether these 14 could ever be tried, given the CIA's "aggressive" interrogation methods.

The Bush administration's disinterest in trying the other 400-500 prisoners at Gitmo shouldn't surprise us. A substantial number of them were captured because they were in the wrong place at the wrong time, or were sold to us for bounties by Afghan warlords, or have been classified by the Pentagon as innocent of any terror-related crime, but continue to be held nevertheless.

I have yet to meet - either in the US or abroad - a single person who doesn't want the perpetrators of 9/11 and other terrorist crimes brought to justice. But I have heard from lots of Americans who don't seem to care much about the fairness of the process for trying and punishing them.

That's not surprising. We have every right to be angry with those who kill our people. But too many Americans are also historically challenged. They know nothing about our Alien and Sedition Acts, Lincoln's suspension of habeas corpus, Woodrow Wilson's espionage acts, the "red raids" of Attorney General Mitchell Palmer, Franklin Roosevelt's internment of Japanese-Americans, the rantings of Senator Joe McCarthy, or any of the other sadder chapters in our country's administration of justice.

For most of these egregious lapses, it has been our Supreme Court that eventually righted the ship of state. Today is no different.

If there is a light at the end of President Bush's tunnel, it will be the Supreme Court that flips the switch. Sooner or later, the law the president signs next week will turn up on the doorstep of the Supremes.

Given the ideological makeup of the current court, the light may be faint. But it's all we have.

(William Fisher has managed economic development programs in the Middle East and in many other parts of the world for the US State Department and USAID for the past thirty years. He began his work life as a journalist for newspapers and for the Associated Press in Florida. Go to The World According to Bill Fisher for more.)


2. Fatal Vision: The Deeper Evil Behind the Detainee Bill -- by Chris Floyd (truthout.org UK Correspondent)

”There is no week nor day nor hour when tyranny may not enter upon this country -- if the people lose their confidence in themselves -- and lose their roughness and spirit of defiance.” -- Walt Whitman

1.
It was a dark hour indeed on Thursday when the United States Senate voted to end the constitutional republic and transform the country into a "Leader-State," giving the president and his agents the power to capture, torture and imprison forever anyone - American citizens included - whom they arbitrarily decide is an "enemy combatant." This also includes those who merely give "terrorism" some kind of "support," defined so vaguely that many experts say it could encompass legal advice, innocent gifts to charities or even political opposition to US government policy within its draconian strictures.

All of this is bad enough - a sickening and cowardly surrender of liberty not seen in a major Western democracy since the Enabling Act passed by the German Reichstag in March 1933. But it is by no means the full extent of our degradation. In reality, the darkness is deeper, and more foul, than most people imagine. For in addition to the dictatorial powers of seizure and torment given by Congress on Thursday to George W. Bush - powers he had already seized and exercised for five years anyway, even without this fig leaf of sham legality - there is a far more sinister imperial right that Bush has claimed - and used - openly, without any demur or debate from Congress at all: ordering the "extrajudicial killing" of anyone on earth that he and his deputies decide - arbitrarily, without charges, court hearing, formal evidence, or appeal - is an "enemy combatant."

That's right; from the earliest days of the Terror War - September 17, 2001, to be exact - Bush has claimed the peremptory power of life and death over the entire world. If he says you're an enemy of America, you are. If he wants to imprison you and torture you, he can. And if he decides you should die, he'll kill you. This is not hyperbole, liberal paranoia, or "conspiracy theory": it's simply a fact, reported by the mainstream media, attested by senior administration figures, recorded in official government documents - and boasted about by the president himself, in front of Congress and a national television audience.

And although the Republic snuffing act just passed by Congress does not directly address Bush's royal prerogative of murder, it nonetheless strengthens it and enshrines it in law. For the measure sets forth clearly that the designation of an "enemy combatant" is left solely to the executive branch; neither Congress nor the courts have any say in the matter. When this new law is coupled with the existing "Executive Orders" authorizing "lethal force" against arbitrarily designated "enemy combatants," it becomes, quite literally, a license to kill - with the seal of Congressional approval.

How arbitrary is this process by which all our lives and liberties are now governed? Dave Niewert at Orcinus has unearthed a remarkable admission of its totally capricious nature. In an December 2002 story in the Washington Post, then-Solicitor General Ted Olson described the anarchy at the heart of the process with admirable frankness:

"[There is no] requirement that the executive branch spell out its criteria for determining who qualifies as an enemy combatant," Olson argues.

"'There won't be 10 rules that trigger this or 10 rules that end this,' Olson said in the interview. 'There will be judgments and instincts and evaluations and implementations that have to be made by the executive that are probably going to be different from day to day, depending on the circumstances.'"

In other words, what is safe to do or say today might imperil your freedom or your life tomorrow. You can never know if you are on the right side of the law, because the "law" is merely the whim of the Leader and his minions: their "instincts" determine your guilt or innocence, and these flutterings in the gut can change from day to day. This radical uncertainty is the very essence of despotism - and it is now, formally and officially, the guiding principle of the United States government.

And underlying this edifice of tyranny is the prerogative of presidential murder. Perhaps the enormity of this monstrous perversion of law and morality has kept it from being fully comprehended. It sounds unbelievable to most people: a president ordering hits like a Mafia don? But that is our reality, and has been for five years. To overcome what seems to be a widespread cognitive dissonance over this concept, we need only examine the record - a record, by the way, taken entirely from publicly available sources in the mass media. There's nothing secret or contentious about it, nothing that any ordinary citizen could not know - if they choose to know it.

2.
Six days after the 9/11 attacks, George W. Bush signed a "presidential finding" authorizing the CIA to kill those individuals whom he had marked for death as terrorists. This in itself was not an entirely radical innovation; Bill Clinton's White House legal team had drawn up memos asserting the president's right to issue "an order to kill an individual enemy of the United States in self-defense," despite the legal prohibitions against assassination, the Washington Post reported in October 2001. The Clinton team based this ruling on the "inherent powers" of the "Commander in Chief" - that mythical, ever-elastic construct that Bush has evoked over and over to defend his own unconstitutional usurpations.

The practice of "targeted killing" was apparently never used by Clinton, however; despite the pro-assassination memos, Clinton followed the traditional presidential practice of bombing the hell out of a bunch of civilians whenever he wanted to lash out at some recalcitrant leader or international outlaw - as in his bombing of the Sudanese pharmaceutical factory in 1998, or the two massive strikes he launched against Iraq in 1993 and 1998, or indeed the death and ruin that was deliberately inflicted on civilian infrastructure in Serbia during that nation's collective punishment for the crimes of Slobodan Milosevic. Here, Clinton was following the example set by George H.W. Bush, who killed hundreds, perhaps thousands, of Panamanian civilians in his illegal arrest of Manuel Noriega in 1988, and Ronald Reagan, who killed Moamar Gadafy's adopted 2-year-old daughter and 100 other civilians in a punitive strike on Libya in 1986.

Junior Bush, of course, was about to outdo all those blunderbuss strokes with his massive air attacks on Afghanistan, which killed thousands of civilians, and the later orgy of death and destruction in Iraq. But he also wanted the power to kill individuals at will. At first, the assassination program was restricted to direct orders from the president aimed at specific targets, as suggested by the Clinton memos. But soon the arbitrary power of life and death was delegated to agents in the field, after Bush signed orders allowing CIA assassins to kill targets without seeking presidential approval for each attack, the Washington Post reported in December 2002. Nor was it necessary any longer for the president to approve each new name added to the target list; the "security organs" could designate "enemy combatants" and kill them as they saw fit. However, Bush was always keen to get the details about the agency's wetwork, administration officials assured the Post.

The first officially confirmed use of this power was the killing of an American citizen, along with several foreign nationals, by a CIA drone missile in Yemen on November 3, 2002. A similar strike occurred on December 4, 2005, when a CIA missile destroyed a house and purportedly killed Abu Hamza Rabia, a suspected al-Qaeda figure. But the only bodies found at the site were those of two children, the houseowner's son and nephew, Reuters reports. The grieving father denied any connection to terrorism. An earlier CIA strike on another house missed Rabia but killed his wife and children, Pakistani officials reported.

However, there is simply no way of knowing at this point how many people have been killed by American agents operating outside all judicial process. Most of the assassinations are carried out in secret: quietly, professionally. As a Pentagon document uncovered by the New Yorker in December 2002 revealed, the death squads must be "small and agile," and "able to operate clandestinely, using a full range of official and non-official cover arrangements to ... enter countries surreptitiously."

What's more, there are strong indications that the Bush administration has outsourced some of the contracts to outside operators. In the original Post story about the assassinations - in those first heady weeks after 9/11, when administration officials were much more open about "going to the dark side," as Cheney boasted on national television - Bush insiders told the paper that "it is also possible that the instrument of targeted killings will be foreign agents, the CIA's term for nonemployees who act on its behalf.

Here we find a deadly echo of the "rendition" program that has sent so many captives to torture pits in Syria, Egypt and elsewhere - including many whose innocence has been officially established, such as the Canadian businessman Maher Arar, German national Khalid El-Masri, UK native Mozzam Begg and many others. They had been subjected to imprisonment and torture despite their innocence, because of intelligence "mistakes." How many have fallen victim to Bush's hit squads on similar shaky grounds?

So here we are. Congress has just entrenched the principle of Bush's "unitary executive" dictatorship into law; and it is this principle that undergirds the assassination program. As I wrote in December, it's hard to believe that any genuine democracy would accept a claim by its leader that he could have anyone killed simply by labeling them an "enemy." It's hard to believe that any adult with even the slightest knowledge of history or human nature could countenance such unlimited, arbitrary power, knowing the evil it is bound to produce. Yet this is exactly what the great and good in America have done.

But this should come as no surprise. They have known about it all along, and have not only countenanced Bush's death squad, but even celebrated it. I'll end with one more passage from that December article, which sadly is even more apt for our degraded reality today. It was a depiction of the one of the most revolting scenes in recent American history: Bush's state of the Union address in January 2003, delivered live to the nation during the final warmongering frenzy before the rape of Iraq:

Trumpeting his successes in the Terror War, Bush claimed that "more than 3,000 suspected terrorists" had been arrested worldwide - "and many others have met a different fate." His face then took on the characteristic leer, the strange, sickly half-smile it acquires whenever he speaks of killing people: "Let's put it this way. They are no longer a problem."

In other words, the suspects - and even Bush acknowledged they were only suspects - had been murdered. Lynched. Killed by agents operating unsupervised in that shadow world where intelligence, terrorism, politics, finance and organized crime meld together in one amorphous, impenetrable mass. Killed on the word of a dubious informer, perhaps: a tortured captive willing to say anything to end his torment, a business rival, a personal foe, a bureaucrat looking to impress his superiors, a paid snitch in need of cash, a zealous crank pursuing ethnic, tribal or religious hatreds - or any other purveyor of the garbage data that is coin of the realm in the shadow world.

Bush proudly held up this hideous system as an example of what he called "the meaning of American justice." And the assembled legislators ... applauded. Oh, how they applauded! They roared with glee at the leering little man's bloodthirsty, B-movie machismo. They shared his sneering contempt for law - our only shield, however imperfect, against the blind, brute, ignorant, ape-like force of raw power. Not a single voice among them was raised in protest against this tyrannical machtpolitik: not that night, not the next day, not ever.

And now, in September 2006, we know they will never raise that protest. Oh, a few Democrats stood up at the last minute on Thursday to posture nobly about the dangers of the detainee bill - but only when they knew the it was certain to pass, when they had already given up their one weapon against it, the filibuster, in exchange for permission from their Republican masters to offer amendments that they also knew would fail. Had they been offering such speeches since October 2001, when the lineaments of Bush's presidential tyranny were already clear - or at any other point during the systematic dismantling of America's liberties over the past five years - these fine words might have had some effect.

Now the killing will go on. The tyranny that has entered upon the country will grow stronger, more brazen; the darkness will deepen. Whitman, thou should'st be living at this hour; America has need of thee.

(Chris Floyd is an American journalist. His work has appeared in print and online in venues all over the world, including The Nation, Counterpunch, Columbia Journalism Review, the Christian Science Monitor, Il Manifesto, the Moscow Times and many others. He is the author of Empire Burlesque: High Crimes and Low Comedy in the Bush Imperium, and is co-founder and editor of the "Empire Burlesque" political blog. He can be reached at cfloyd72@gmail.com)


3. Why Churchill Opposed Torture
The British leader understood what President Bush does not: When it comes to prisoners of war, what goes around comes around.
By Niall Ferguson

LAST WEEK, both houses of Congress approved a bill — the Military Commissions Act — that would permit the indefinite, extrajudicial incarceration of terrorist suspects and their interrogation using torture in all but name. Does that sound shocking? What's really shocking is that this was a compromise measure.

When President Bush signs this bill into law, a category of detainees will come into existence: "unlawful enemy combatants" who, regardless of their nationality, will be liable to summary arrest.

Those detained will not have the right to challenge their imprisonment by filing an application for a writ of habeas corpus. When — or rather if — they are tried, it will be by military tribunals. Classified evidence may be withheld from the accused if the tribunal judges see fit.

My old friend Andrew Sullivan — who used to think he was a conservative until President Bush came along — calls it a bill to "legalize tyranny."

At the very least, it has the potential to extend the scope of American martial law far beyond the cellblocks of Guantanamo Bay.

Leave aside for now the question of habeas corpus; after all, prisoners of war have traditionally been denied this ancient protection. Much more sinister is Section 8 ("Implementation of Treaty Obligations"), under which "the president has the authority … to interpret the meaning and application of the Geneva Conventions and to promulgate … administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions."

To see what this means, you need to know what the "grave breaches" are. According to Geneva Convention III, Article 130, they include "willful killing, torture or inhuman treatment, including biological experiments" and "willfully causing great suffering or serious injury to body or health."

Insidiously, therefore, the Military Commissions Act empowers the president to authorize all lesser forms of physical and mental intimidation of prisoners. Suffering and injury are fine, in other words, as long as they aren't "great" or "serious."

It is easy enough to understand why most members of Congress assented to this. Five years after 9/11, Americans remain intensely hostile toward anyone who might even be suspected of involvement in terrorism. Not for the first time, war fever is encouraging Americans to set aside the fundamental principles of individual liberty on which the United States was founded. Predictably, Democrats who opposed the bill were accused by Republicans of "coddling" terrorists — a line of attack that Karl Rove hopes will win November's midterm elections.

History, however, provides a powerful counter-argument. It is that any dilution of the Geneva Convention could end up having the very reverse effect of what the administration intends. Far from protecting Americans from terror, it could end up exposing them to it.

THE FIRST Geneva Convention governing the humane treatment of prisoners of war was adopted in 1929. It is not too much to say that it saved the lives of millions. In World War II, about 96 million people served in the armed forces of all the belligerent states, of whom more than a third spent at least some time in enemy hands. The majority of these were Axis soldiers who became prisoners when Germany and Japan surrendered. Luckily for them, the Allies upheld the Geneva Convention, despite the fact that the Axis powers had systematically failed to do so.

Official Japanese policy encouraged brutality toward prisoners of war by applying the Geneva Convention only mutatis mutandis (literally, "with those things having been changed which need to be changed"), which the Japanese translated as "with any necessary amendments."

The amendments in question amounted to this: Enemy prisoners had so disgraced themselves by laying down their arms that their lives were forfeit. Indeed, some Allied prisoners were made to wear armbands bearing the inscription "One who has been captured in battle and is to be beheaded or castrated at the will of the emperor." Physical assaults were a daily occurrence in some Japanese POW camps. Executions without due process were frequent. Thousands of American prisoners died during the infamous Bataan Death March in 1942.

Elsewhere, British POWs were used as slave labor, most famously on the Burma-Thailand railway line. Attempting to escape was treated by the Japanese as a capital offense, though the majority of prisoners who died were in fact victims of malnutrition and disease exacerbated by physical overwork and abuse. In all, 42% of Americans taken prisoner by the Japanese did not survive. Such were the consequences of "amending" the Geneva Convention.

Red-state Republicans may still shrug their shoulders. After all, George W. Bush is no Tojo. Well, maybe not. But even if you don't see any resemblance between Bush's "administrative regulations" and Imperial Japan's "necessary amendments" of the Geneva Convention, consider this purely practical argument: As Winston Churchill insisted throughout the war, treating POWs well is wise, if only to increase the chances that your own men will be well treated if they too are captured. Even in World War II, there was in fact a high degree of reciprocity. The British treated Germans POWs well and were well treated by the Germans in return; the Germans treated Russian POWs abysmally and got their bloody deserts when the tables were turned.

Few, if any, American soldiers currently find themselves in enemy hands. But in the long war on which Bush has embarked, that may not always be the case. The bottom line about mistreating captive foes is simple: It is that what goes around comes around. And you don't have to be a closet liberal to understand that.

(nferguson@latimescolumnists.com)