Jesus Christ, it’s weird being alive in America today. I don’t know if I’m living in the most technological advanced, richest country on earth (with 5% of world population, we have 30% of its wealth) … or inside the stinky Darth Vader asshole of Dickhead Cheney.
First, the good news. iPods. Google. eBay. All manner of free expression on the net, like porn (mothers who love to fuck, anyone?). Videogames. Noam Chomsky, the world’s most popular intellectual. And the juicy prospect of having a woman as the main man of the world in 2008.
Now for the bad news.
I won’t go into the Iraq War -- bad idea, bad execution, over a 100,000 dead, including countless women and children, a whole country in an orgy of killing, and for what? Nor will I discuss our humiliating status as the world’s #1 debtor nation, or the fact that we have to suck up to Saudi Arabia for their oil, even though their citizens fucked us big-time on 9/11.
What’s more fundamentally bad, is the state of the soul of our nation. We’ve moved into some dubious moral waters. We’re beginning to look like a poor cousin of Stalinist Russia. Fascism Lite, complete with our own mini-Gulag, is a pretty good description.
A bill is moving through Congress at this moment that will not only excuse the torture we’ve done, but legalize its continuation. Senator McCain registered some protest, but it has now become totally symbolic. You can be sure that somewhere in a secret CIA prison, some suspected terrorist, who may not be one at all, is being water-boarded, or made to stand for 48 hours, or put into a stress position, or frozen naked with water making icicles on him, or getting rubber truncheoned, or being snarled at by a vicious dog. You can be sure the CIA, in what they call extraordinary rendition, has kidnapped some guy with the wrong name and sent him to another torture-happy nation to have his gonads hitched to a generator, as has now happened to a German and a Canadian, both totally innocent. And now it’s all going to become legal -- in the US at least. Maybe one day the International Court at the Hague will decide to do something about Cheney & Co. so that they, like Henry Kissinger, have to be careful which countries they visit, in case they get hauled off to jail to appear in front of a War Crimes tribunal.
Worst of all is our suspension of habeas corpus. This is an absolute foundation of Western jurisprudence. It means this: when you lock me up, you’ve got to charge me or release me. If you don't, I have the right to challenge your detention of me in court. You can’t keep me in jail indefinitely, without putting me in front of a court of law for trial.
Today we’ve got 14,000 people in jail in Guantanamo, Iraq, Afghanistan and secret CIA prisons (probably in one of those Eastern Europe Dictatorstans), whom we keep there without bringing them to justice. Some of them have been in jail for five years without seeing a lawyer, and have no idea what the fuck they’re guilty of.
Cheney/Bush have created a special legal status of human, the so-called “enemy combatant,” who is outside the reach of legal jurisprudence. These guys can be tortured, isolated and locked up for life without seeing the inside of a court, or even talking to their families.
Let’s be clear what “enemy combatant” means. It means a legal non-person. The Italian philosopher Giorgio Agamben likens them to the first humans to be so designated, under Roman law a few millennia ago. They didn’t call them “enemy combatants” then, they called them “homo sacer”. This was a human being who could be killed by anyone, without the killer ever being guilty of homicide.
In our time, another example of being a non-person was being a Jew in Nazi Germany. They were unter-menschen, sub-humans, who could be locked up and exterminated without anyone being guilty of homicide.
Now I don’t know whether we mean to exterminate “enemy combatants,” although keeping them locked up forever is tantamount to some kind of death.
But I do know we’ve suspended a basic law of our Western human tradition, one of the foundations of what makes us a democracy.
Since not many Americans have been declared “enemy combatants,” most of us don’t give a fuck. But we should. As far as I know, the only time habeas corpus was ever suspended in America before this, was when Abraham Lincoln did it during the Civil War, and when Roosevelt locked up Japanese Americans in concentration camps during WW2. But when those wars were over, we went back to democracy as usual. And afterwards, these actions were mightily criticized.
But Dickhead Cheney and Fratfuck Bush have said we’re in a long war, a war without end, the so-called Global War on Terror. That’s their excuse for keeping the special category of non-human “enemy combatant” in jail forever.
Let's also be clear who these "enemy combatants" are. A great many of them were produced by bounty hunters in Afghanistan, because we were offering $5,000 a pop for suspected terrorists. Heck, it was a good way for a warlord to make some quick dough. That brother-in-law I never liked, I'll sell the motherfucker to the stupid Americans as a terrorist. An "enemy combatant" can be anybody. The best guess is that maybe a hundred dudes out of the 14,000 we've got in jail actually belong there, and maybe 20 of them are real terrorists. The other guys are just twiddling their thumbs in jail and reading the Koran in between being waterboarded or rubber-truncheoned. The luckiest "enemy combatants" have been those who were British citizens; they've been released after some obligatory torture because Blair is Bush's poodle and Bush is nice enough to stop short of shitting on Blair's head by keeping innocent UK citizens in jail. Some of their hair-raising stories have been told. Four of them were in a documentary. Other guys, like the poor German and the Canadian, spent a year being tortured before they were released. The Canadian is suing Canada and America.
Who knows when this loose category of "enemy combatant" gets extended to, say, illegal immigrants, or some other demonized human form? We voted for Bush -- who says we can’t vote for someone worse than him, who’d lock up protesters, dissidents, activists, pot smokers, abortion doctors, feminists, gays, lesbians, libertarians, pinkos, Republicans or Democrats, without benefit of a trial?
The famous words of Pastor Martin Niemöller, about creeping Nazi persecution, springs to mind:
“First they came for the Jews
and I did not speak out
because I was not a Jew.
Then they came for the Communists
and I did not speak out
because I was not a Communist.
Then they came for the trade unionists
and I did not speak out
because I was not a trade unionist.
Then they came for me
and there was no one left
to speak out for me.” 2. Rushing Off a Cliff (NY Times editorial)
Here’s what happens when this irresponsible Congress railroads a profoundly important bill to serve the mindless politics of a midterm election: The Bush administration uses Republicans’ fear of losing their majority to push through ghastly ideas about antiterrorism that will make American troops less safe and do lasting damage to our 217-year-old nation of laws — while actually doing nothing to protect the nation from terrorists. Democrats betray their principles to avoid last-minute attack ads. Our democracy is the big loser.
Republicans say Congress must act right now to create procedures for charging and trying terrorists — because the men accused of plotting the 9/11 attacks are available for trial. That’s pure propaganda. Those men could have been tried and convicted long ago, but President Bush chose not to. He held them in illegal detention, had them questioned in ways that will make real trials very hard, and invented a transparently illegal system of kangaroo courts to convict them.
It was only after the Supreme Court issued the inevitable ruling striking down Mr. Bush’s shadow penal system that he adopted his tone of urgency. It serves a cynical goal: Republican strategists think they can win this fall, not by passing a good law but by forcing Democrats to vote against a bad one so they could be made to look soft on terrorism.
Last week, the White House and three Republican senators announced a terrible deal on this legislation that gave Mr. Bush most of what he wanted, including a blanket waiver for crimes Americans may have committed in the service of his antiterrorism policies. Then Vice President Dick Cheney and his willing lawmakers rewrote the rest of the measure so that it would give Mr. Bush the power to jail pretty much anyone he wants for as long as he wants without charging them, to unilaterally reinterpret the Geneva Conventions, to authorize what normal people consider torture, and to deny justice to hundreds of men captured in error.
These are some of the bill’s biggest flaws:
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 U.S. military prisons would lose the basic right to challenge their imprisonment. These cases do not clog the courts, nor coddle terrorists. They simply give wrongly imprisoned people a chance to prove their innocence.
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. Coercion is defined in a way that exempts anything done before the passage of the 2005 Detainee Treatment Act, and anything else Mr. Bush chooses.
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 as redrafted by Mr. Cheney 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.
•There is not enough time to fix these bills, especially since the few Republicans who call themselves moderates have been whipped into line, and the Democratic leadership in the Senate seems to have misplaced its spine. If there was ever a moment for a filibuster, this was it.
We don’t blame the Democrats for being frightened. The Republicans have made it clear that they’ll use any opportunity to brand anyone who votes against this bill as a terrorist enabler. But Americans of the future won’t remember the pragmatic arguments for caving in to the administration.
y to brand anyone who votes against this bill as a terrorist enabler. But Americans of the future won’t remember the pragmatic arguments for caving in to the administration.
They’ll know that in 2006, Congress passed a tyrannical law that will be ranked with the low points in American democracy, our generation’s version of the Alien and Sedition Acts. 3. Habeas Corpus, R.I.P. (1215 - 2006)
With a smug stroke of his pen, President Bush is set to wipe out a safeguard against illegal imprisonment that has endured as a cornerstone of legal justice since the Magna Carta.
By Molly Ivins
AUSTIN, Texas—Oh dear. I’m sure he didn’t mean it. In Illinois’ Sixth Congressional District, long represented by Henry Hyde, Republican candidate Peter Roskam accused his Democratic opponent, Tammy Duckworth, of planning to “cut and run” on Iraq.
Duckworth is a former Army major and chopper pilot who lost both legs in Iraq after her helicopter got hit by an RPG. “I just could not believe he would say that to me,” said Duckworth, who walks on artificial legs and uses a cane. Every election cycle produces some wincers, but how do you apologize for that one?
The legislative equivalent of that remark is the detainee bill now being passed by Congress. Beloveds, this is so much worse than even that pathetic deal reached last Thursday between the White House and Republican Sens. John Warner, John McCain and Lindsey Graham. The White House has since reinserted a number of “technical fixes” that were the point of the putative “compromise.” It leaves the president with the power to decide who is an enemy combatant.
This bill is not a national security issue—this is about torturing helpless human beings without any proof they are our enemies. Perhaps this could be considered if we knew the administration would use the power with enormous care and thoughtfulness. But of the over 700 prisoners sent to Gitmo, only 10 have ever been formally charged with anything. Among other things, this bill is a CYA for torture of the innocent that has already taken place.
Death by torture by Americans was first reported in 2003 in a New York Times article by Carlotta Gall. The military had announced the prisoner died of a heart attack, but when Gall saw the death certificate, written in English and issued by the military, it said the cause of death was homicide. The “heart attack” came after he had been beaten so often on this legs that they had “basically been pulpified,” according to the coroner.
The story of why and how it took the Times so long to print this information is in the current edition of the Columbia Journalism Review. The press in general has been late and slow in reporting torture, so very few Americans have any idea how far it has spread. As is often true in hierarchical, top-down institutions, the orders get passed on in what I call the downward communications exaggeration spiral.
For example, on a newspaper, a top editor may remark casually, “Let’s give the new mayor a chance to see what he can do before we start attacking him.”
This gets passed on as “Don’t touch the mayor unless he really screws up.”
And it ultimately arrives at the reporter level as “We can’t say anything negative about the mayor.”
The version of the detainee bill now in the Senate not only undoes much of the McCain-Warner-Graham work, but it is actually much worse than the administration’s first proposal. In one change, the original compromise language said a suspect had the right to “examine and respond to” all evidence used against him. The three senators said the clause was necessary to avoid secret trials. The bill has now dropped the word “examine” and left only “respond to.”
In another change, a clause said that evidence obtained outside the United States could be admitted in court even if it had been gathered without a search warrant. But the bill now drops the words “outside the United States,” which means prosecutors can ignore American legal standards on warrants.
The bill also expands the definition of an unlawful enemy combatant to cover anyone who has “has purposefully and materially supported hostilities against the United States.” Quick, define “purposefully and materially.” One person has already been charged with aiding terrorists because he sold a satellite TV package that includes the Hezbollah network.
The bill simply removes a suspect’s right to challenge his detention in court. This is a rule of law that goes back to the Magna Carta in 1215. That pretty much leaves the barn door open.
As Vladimir Bukovsky, the Soviet dissident, wrote, an intelligence service free to torture soon “degenerates into a playground for sadists.” But not unbridled sadism—you will be relieved that the compromise took out the words permitting interrogation involving “severe pain” and substituted “serious pain,” which is defined as “bodily injury that involves extreme physical pain.”
In July 2003, George Bush said in a speech: “The United States is committed to worldwide elimination of torture, and we are leading this fight by example. Freedom from torture is an inalienable human right. Yet torture continues to be practiced around the world by rogue regimes, whose cruel methods match their determination to crush the human spirit.”
Fellow citizens, this bill throws out legal and moral restraints as the president deems it necessary—these are fundamental principles of basic decency, as well as law.
I’d like those supporting this evil bill to spare me one affliction: Do not, please, pretend to be shocked by the consequences of this legislation. And do not pretend to be shocked when the world begins comparing us to the Nazis.
(To find out more about Molly Ivins and see works by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.)4. Forget Nuremberg
How Bush's new torture bill eviscerates the promise of Nuremberg.
By David J. Luban (from Slate.com)
The burning question is: What did the Bush administration do to break John McCain when a North Vietnamese prison camp couldn't do it?
Could it have been " ego up "? I'm told ego up is not possible with a U.S. senator. That probably also rules out ego down. Fear up harsh? McCain doesn't have the reputation of someone who scares easily. False flag? Did he think they were sending him to the vice president's office? No, he already knew he was in the vice president's office. Wait, I think I know the answer: futility— which the Army's old field manual on interrogation defined as explaining rationally to the prisoner why holding out is hopeless . Yes, the explanation must be that the Bush lawyers would have successfully loopholed any law McCain might write, so why bother? Futility might have done the trick.
How else can we explain McCain's surrender this week on the torture issue, one on which he has been as passionate in the past as Lindsey Graham was on secret evidence?
Marty Lederman at Balkinization explains here and here some of the worst bits of the proposed " compromise legislation " on detainee treatment. But the fact is, virtually every word of the proposed bill is a capitulation, including "and" and "the." And yesterday's draft is even worse than last week's. It unexpectedly broadens the already broad definition of "unlawful enemy combatant" to include those who fight against the United States as well as those who give them "material support"—a legal term of art that appears to include anyone who has ever provided lodging or given a cell phone to a Taliban foot soldier out of sympathy with his cause. Now, not only the foot soldier but also his mom can be detained indefinitely at Guantanamo.
But the real tragedy of the so-called compromise is what it does to the legacy of Nuremberg—a legacy we would have been celebrating next week at the 60 th anniversary of the judgment.
What does the bill do to Nuremberg? Section 8(a)(2) holds that when it comes to applying the War Crimes Act, "No foreign or international sources of law shall supply a basis for a rule of decision in the courts of the United States in interpreting the prohibitions enumerated in subsection 2441(d)." That means the customary international law of war is henceforth expelled from U.S. war-crime law—ironic, to say the least, because it was the U.S. Army's Lieber Code that formed the basis for the Law of Armed Conflict and that launched the entire worldwide enterprise of codifying genuinely international humanitarian law.
Ironic also because our own military takes customary LOAC as its guide and uses it to train officers and interrogators. Apparently there is no need to do that anymore, at least when it comes to war crimes. That means goodbye, International Committee of the Red Cross; the Swiss can go back to their fondue and cuckoo clocks. It also means goodbye, jurisprudence of the Yugoslav tribunal, which the United States was instrumental in forming.
And also goodbye, Nuremberg.
Sept. 30 and Oct. 1 mark the 60 th anniversary of the tribunal's judgment . If the opening chapters of Telford Taylor's superb The Anatomy of the Nuremberg Trials make one thing crystal clear, it's the burning desire of the United States to create international law using those trials. Great Britain initially opposed the Nuremberg trials and urged simply shooting top Nazis, out of fear they would use the trials for propaganda. Stalin favored conducting trials, but only to establish punishments, not guilt. Like Great Britain, he thought punishing the top Nazis should be a political, and not a legal, decision. The trials happened as they did only because the United States insisted on them for purposes of establishing future law—a task that summary justice at executive say-so could never have done.
At the London conference that wrote the Nuremberg Charter, France and Russia both objected to criminalizing aggressive war for anybody but the Axis countries. But Supreme Court Justice Robert Jackson, the American representative, insisted that creating universally binding international law was the prime purpose of the tribunal.
A compromise left the international status of Nuremberg law ambiguous—the tribunal's jurisdiction covered only the Axis countries, but nowhere does the charter suggest that the crimes it was trying were only crimes if committed by the Axis powers. Because of this ambiguity, the status of the Nuremberg principles as international law was not established until 1950, when the U.N. General Assembly proclaimed seven Nuremberg Principles to be international law. The American agenda had finally prevailed.
Well, forget all that as well. The Nuremberg Principles, like the entire body of international humanitarian law, will now have no purchase in the war-crimes law of the United States. Who cares whether they were our idea in the first place? Principle VI of the Nuremberg seven defines war crimes as "violations of the laws or customs of war, which include, but are not limited to ... ill-treatment of prisoners of war." Forget "customs of war"—that sounds like customary international law, which has no place in our courts anymore. Forget "ill-treatment"—it's too vague. Take this one: Principle II, "The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law." Section 8(a)(2) sneers at responsibility under international law. Or Principle IV: "The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him." Moral, shmoral. The question is, do you want the program or don't you?
The Nuremberg trials presupposed something about the human conscience: that moral choice doesn't take its cues solely from narrow legalisms and technicalities. The new detainee bill takes precisely the opposite stance: Technicality now triumphs over conscience, and even over common sense. The bill introduces the possibility for a new cottage industry: the jurisprudence of pain . It systematically distinguishes "severe pain"—the hallmark of torture—from (mere) "serious" pain—the hallmark of cruel and degrading treatment, usually thought to denote mistreatment short of torture. But then it defines serious physical pain as "bodily injury that involves ... extreme physical pain." To untutored ears, "extreme" sounds very similar to "severe"; indeed, it sounds even worse than "severe." But in any case, it certainly sounds worse than "serious." Administration lawyers can have a field day rating painful interrogation tactics on the Three Adjective Scale, leaving the rest of us to shake our heads at the essential lunacy of the enterprise.
And then there is section 8(3), which says that "the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions." Section (B) makes it clear that his interpretation "shall be authoritative (as to non-grave breach provisions)."
On Aug. 1, 2006, The Onion ran a story headlined " Bush Grants Self Permission To Grant More Power to Self ." It began: "In a decisive 1-0 decision Monday, President Bush voted to grant the president the constitutional power to grant himself additional powers." It ended thusly: "Republicans fearful that the president's new power undermines their ability to grant him power have proposed a new law that would allow senators to permit him to grant himself power." How life imitates art! In the end, the three courageous Republican holdouts didn't want the president unilaterally trashing Geneva. Now it turns out that the principle they were fighting for was simply Congress' prerogative to grant him the unreviewable power to do so.
(This article is based on an earlier posting at Balkinization.)5. The Blind Leading the Willing
A compromise between those who don't care and those who don't want to know.
By Dahlia Lithwick (from Slate.com)
Is it still called a compromise when the president gets everything he wanted?
Amajor detainee bill hurtling down the HOV lane in Congress today would determine the extent to which the president can define and authorize torture. The urgency to pass this legislation has nothing to do with a new need to interrogate alleged enemy combatants. The urgency is about an election.
Last time Congress rubber-stamped a major terrorism-related law no one had bothered to read in the first place, we got the Patriot Act . That alone should lead us to wonder whether there shouldn't be a mandatory three-month cooling-off period whenever Congress enacts broad laws that rewrite the Constitution.
The White House version of the detainee bill met with some resistance among ranking GOP members of Congress last week, but not enough to matter . And now, with a "compromise" at hand, nobody seems to agree on the meaning of the bargain we've struck. Sen. John McCain still believes that he's won on the bedrock principle of U.S. adherence to the Geneva Conventions. The Bush administration sees it as granting the president the authority to decide what Geneva really means.
That led to all the confusion last Sunday, when, appearing on Face the Nation , McCain claimed that the current bill "could mean that … extreme measures such as extreme deprivation—sleep deprivation, hypothermia, and others would be not allowed." This, on the same weekend that the editors at the Wall Street Journal crowed: "It's a fair bet that waterboarding—or simulated drowning, the most controversial of the CIA's reported interrogation techniques—will not be allowed under the new White House rules. But sleep deprivation and temperature variations, to name two other methods, will likely pass muster." So, what did we agree to? Is hypothermia in or out? What about sexual degradation or forcing prisoners to bark like dogs? Stress positions?
I'd wager that any tie goes to the White House. One hardly needs a law degree to understand that in a controversy over detainee treatment between the executive and legislative branches, the trump will go to the guy who's holding the unnamed detainees in secret prisons.
That brings us to a second stunning aspect of the so-called compromise: Not only do our elected officials have no idea what deal they've just struck, but they also have no idea what they were even bargaining about . In his Face the Nation interview, McCain revealed that he was in fact quite clueless as to what these "alternative interrogation measures"—the ones the president insists the CIA must use—actually include. "It's hard for me to get into these techniques," McCain said. "First of all, I'm not privy to them, but I only know what I've seen in public reporting."
Asked whether he had "access to more information about this than any of us because you've been in the negotiations," the senator was not reassuring. He knows "only what the president talked about in his speech." To clarify: McCain, the Geneva Conventions' great defender, is signing off on interrogation limits he knows nothing about. And so, it appears, will the most of the rest of Congress.
But that's not all. Congress doesn't want to know what it's bargaining away this week. In the Boston Globe this weekend, Rick Klein revealed that only "10 percent of the members of Congress have been told which interrogation techniques have been used in the past, and none of them know which ones would be permissible under proposed changes to the War Crimes Act." More troubling still, this congressional ignorance seems to be by choice. Klein quotes Sen. Jeff Sessions, the Alabama Republican, as saying, "I don't know what the CIA has been doing, nor should I know." Evidently, "widely distributing such information could result in leaks."
We've reached a defining moment in our democracy when our elected officials are celebrating their own blind ignorance as a means of keeping the rest of us blindly ignorant as well.
Over at the National Review Online they exult that the CIA torture program isn't just the president's project anymore. "Now it is just as much the program of Congress and of John McCain." Not quite right. Now it's the president's program that John McCain chooses not to know about.
And just to be completely certain, Congress is taking the courts down with it. No serious reader of the detainee-compromise bill can dispute that the whole point here is to sideline the courts . This bill immunizes some forms of detainee abuse and ignores others. It strips courts of habeas-corpus jurisdiction and denies so-called unlawful enemy combatants (a term that sweeps in citizens and noncitizens, Swiss grandmothers and Don Rumsfeld's neighbor if-that-bastard-doesn't-trim-his-hedge) the right to assert Geneva Convention claims in courts. Many detainees may never stand trial on the most basic question of whether they have done anything wrong. And courts will apparently now be powerless to do anything about any of this.
For the five years since 9/11, we have been in the dark in this country. This president has held detainees in secret prisons and had them secretly tortured using secret legal justifications . Those held in secret at Guantanamo Bay include innocent men , as do those who have been secretly shipped off to foreign countries and brutally tortured there. That was a shame on this president.
But passage of the new detainee legislation will be a different sort of watershed. Now we are affirmatively asking to be left in the dark. Instead of torture we were unaware of, we are sanctioning torture we'll never hear about. Instead of detainees we didn't care about, we are authorizing detentions we'll never know about. Instead of being misled by the president, we will be blind and powerless by our own choice. And that is a shame on us all. 6. Gray Is Beautiful
Why Congress shouldn't write interrogation rules.
By Emily Bazelon (from Slate.com)
Last week, President Bush said that the country would be at risk unless the CIA can continue using certain harsh interrogation methods. Waterboarding has apparently fallen off the list, but on it are seven methods that include hypothermia, sleep deprivation, and stress positions such as prolonged periods of standing (40-plus hours' worth). Whether you consider these methods torture or torture-lite or just an "alternative set of procedures," they're out of bounds according to international understanding of the Geneva Conventions, in particular the provision known as Common Article Three. So, to keep the CIA interrogation program going, Bush wants to define away our Geneva obligations—either Common Article Three goes, or the interrogators close up shop.
But how real is his threat? Bush keeps saying that he's seeking clarity on the CIA's behalf. His version of clarity, however, would encourage the executive branch to stretch its powers. Leaving room for a grey area is better policy and more morally sound.
Maybe I've watched too many episodes of 24 , but it's hard for me to believe that in the event that Bush's interrogation bill fails to pass, no interrogator can be found who would turn up the music, turn down the heat, and take the risk if such methods were deemed most likely to wring information out of a high-value suspect (always a questionable assumption). True, in Hamdan v. Rumsfeld the Supreme Court did reaffirm the United States' obligation, under Common Article Three, to bar "outrages upon personal dignity, in particular, humiliating and degrading treatment." But that doesn't necessarily mean that all harsh interrogation will cease unless Congress dodges that ruling by giving the CIA a free pass ahead of time. It just means that interrogators would have to take a chance and hope the courts will see it their way afterward. If that's good enough—and it must have been on some past occasions—then there's no reason to rush through Bush's bill on interrogation and the legal rights of the detainees. Or any other bill, for that matter.
Granted, this after-the-fact solution—lawyers call it the "necessity defense"—sounds weasely. It asks a few interrogators to take a risk on behalf of the rest of us. And it doesn't exactly strengthen the rule of law. (The one heartening thing about Bush's position is that it takes the Supreme Court so seriously.) But the benefits of the necessity defense are worth its unseemliness. Making use of it would allow us to reaffirm our commitment to the Geneva Conventions and help ensure that harsh methods of interrogation become the exception rather than the rule.
Nor does the potential risk to CIA interrogators seem unsupportable. According to the administration, in the five years since 9/11 only 14 detainees have been subjected to harsh interrogation treatment. That's a small number. Nor is there a lot of reason to think the interrogator who takes on the next 14 would be prosecuted. Nothing in the Supreme Court's decision in Hamdan v. Rumsfeld bars the administration from continuing to hold detainees overseas, beyond the reach of American courts or public knowledge, and the president has made it clear that he will continue to do so. And imagine the uproar if the attorney general in a Democratic administration later tried to hold an interrogator liable for doing his best to protect the country. Agency culture also factors in here: The CIA isn't exactly in the habit of giving up its own. Has there been a single prosecution against anyone in an intelligence agency or the military under the War Crimes Act for violation of Common Article Three—or anything else—since the war on terror began? I can't think of one.
Now imagine that the unlikely happens, and an interrogator is brought up on charges. He can argue that he had no moral choice but to put on the squeeze because of the value of the information he was thought to hold. If he had good reason to believe in the information's value, his chances in court look pretty good.
Bush is undoubtedly right that there would be more harsh interrogations, and more CIA agents willing to conduct them, if his bill were to become law. And much of the time, interrogators don't know in advance whether the sullen suspect in the room with them is Khalid Sheikh Mohammed II or a nobody. Still, no less a security-minded conservative than Judge Richard Posner of the 7 th U.S. Circuit Court of Appeals chooses the necessity defense over legislation that codifies "highly coercive" methods in his new book, Not A Suicide Pact: The Constitution in a Time of National Emergency . Considering whether to give a green light for torture ahead of time to ward off evil, he writes, "The question arises whether we should relax the prohibition against torture in such a case or trust public officers to perceive and act on a moral duty that is higher than their legal duty. I favor the latter course."
Posner argues that it is better for courts to determine liability after the fact because the alternative "would amount to authorizing executive officials to suspend all rights." This is a bad idea, he says, in part because officials who are given a free pass to interrogate upfront are encouraged to test—and expand—the limit of their authority. John Yoo's views about the poor weakened presidency to the contrary , most historians and law professors would probably agree with Posner that "presidents want to expand their power." Give them and the executive branch a green light ahead of time, and they'll speed through it. Make them assume the risks of breaking the law, and they'll proceed with greater caution. Posner may be talking about a narrower definition of torture here that does not extend to the CIA's seven contested methods. Still, his reasoning is the opposite of Bush's.
In standing up to the president, Sens. John McCain, Lindsey Graham, and John Warner have talked not about the necessity defense but about the importance of keeping the Geneva Conventions sacrosanct. And if the senators reach a compromise with the president, they may try to paper over their differences by appearing to leave Common Article Three intact without specifying what interrogators can and can't do. They would take the president at his word that the CIA techniques are not torture. That's the route McCain took last year in advocating for his anti-torture law. Maybe this will be an improvement on Bush's current proposal. Even better, though, would be for Congress to do nothing at all.7. The Plain Meaning of Torture?
Literary deconstruction and the Bush administration's legal reasoning.
By Peter Brooks (from Slate.com)
Has newly minted Attorney General Alberto Gonzales studied the opinion handed down by the Supreme Court last November in Leocal v. Ashcroft ? There, Chief Justice William H. Rehnquist issued a ringing reaffirmation of "plain meaning." "Our analysis begins with the language of the statute," Rehnquist wrote. "When interpreting a statute, we must give words their 'ordinary or natural' meaning."
Leocal concerned whether a drunk-driving offense—in which injury to others occurred—could be construed by the immigration authorities as a "crime of violence" meriting deportation of the offender. No, said Rehnquist—interpreting an automobile accident as a "use of physical force" violates our common sense understanding of "use." Rehnquist reasonably re-emphasized a cardinal rule of legal analysis: that interpretation must proceed by what is often called the "plain meaning rule," affectionately known to lawyers as the PMR.
But something odd happened to the PMR in the memorandum on torture that Attorney General Gonzales, as White House Counsel, solicited from the Office of Legal Counsel in the Justice Department he now heads. That memo (signed by Assistant Attorney General Jay S. Bybee, and hence known as the "Bybee Memo"), dated Aug. 1, 2002, offers the OLC's interpretation of "standards of conduct under the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment as implemented by Sections 2340-2340A of title 18 of the United States Code." It offers a remarkable example of textual interpretation run amok—less "lawyering as usual" than the work of some bizarre literary deconstructionist. And it's virtually impossible to read without wondering whether another casualty of this war on terror is the doctrine that words indeed mean what they say.
Bybee's analysis starts from an apparent commitment to the "plain meaning" rule. "The key statutory phrase in the definition of torture is the statement that acts amount to torture if they cause 'severe physical or mental pain or suffering.' In examining the meaning of a statute, its text must be the starting point." But, says Bybee, the statute doesn't define "severe." Absent such a definition, he continues, "we construe a statutory term in accordance with its ordinary or natural meaning." To find that ordinary and natural meaning, he turns to Webster's New International Dictionary (the 1935 edition, for some reason), then to the American Heritage Dictionary , and the Oxford English Dictionary , to discover that severe "conveys that the pain or suffering must be of such a high level of intensity that the pain is difficult for the subject to endure."
But this definition, however ordinary and natural, doesn't quite meet his purposes. So Bybee searches for other possible uses of the phrase "severe pain" in the U.S. Code, and discovers, as he puts it: "Significantly, the phrase 'severe pain' appears in statutes defining an emergency medical condition." "Significantly" is Bybee's transition word here—and one might ask whether the use of "severe pain" in the context of medical emergency is in fact more "significant" than any number of other uses of severe, in statutes and in ordinary usage. But this slide into medical usage allows Bybee to come up with his interpretation of choice: that the "severe pain" that defines torture must involve damage that rises "to the level of death, organ failure, or the permanent impairment of a significant body function." He's by now got us well out of common English usage and into the emergency room.
Next, Bybee interprets the language used to define "severe mental pain or suffering" in the torture statute, which includes "the prolonged mental harm caused by or resulting from A) the intentional infliction or threatened infliction of severe physical pain or suffering." To prolong, his Webster's (the 1988 edition this time) tells him, is to "lengthen in time," and this permits Bybee to segue into: "Put another way, the acts giving rise to the harm must cause some lasting, though not necessarily permanent, damage." This transition suggests to him that "prolonged mental harm" (words not used elsewhere in the U.S. Code) might resemble post-traumatic stress disorder, lasting months or even years, noticed in torture victims.
This is thoroughly circular. It leads, over the next three paragraphs, to his claim that for torture to in fact be torture requires a specific intent to cause prolonged mental harm by one of the acts listed in the statute, and a defendant's good-faith belief that the acts he or she committed would not amount to the acts forbidden by the statute would conveniently constitute a "complete defense to such a charge." We may uneasily sense that we are witnessing a kind of free play of the signifier of the sort that literary critics and philosophers are sometimes accused of sponsoring.
The truly "deconstructive" cast of Bybee's interpretation of the torture statute comes in the next section, which takes up "Harm caused by or resulting from predicate acts." These acts include, "the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality." Since these "substances" are not further defined, Bybee sets out to make some distinctions. Here a longer quotation is necessary:
This subparagraph, however, does not preclude any and all use of drugs. Instead, it prohibits the use of drugs that "disrupt profoundly the senses or the personality." To be sure, one could argue that this phrase applies only to "other procedures," not the application of mind-altering substances. We reject this interpretation because the terms of Section 2340 (2) expressly indicate that the qualifying phrase applies to both "other procedures" and the "application of mind-altering substances." The word "other" modifies "procedures calculated to disrupt profoundly the senses." As an adjective, "other" indicates that the term or phrase it modifies is the remainder of several things. See Webster's Third New International Dictionary 1598 (1986) (defining "other" as "the one that remains of two or more") Webster's Ninth New Collegiate Dictionary 835 (1985) (defining "other" as "being the one (as of two or more) remaining or not included"). Or put another way, "other" signals that the words to which it attaches are of the same kind, type, or class as the more specific item previously listed. Moreover, where statutes couple words or phrases together, it "denotes an intention that they should be understood in the same general sense."
To use the "or" of "or other procedures"—which are of course supposed to be of the same sort—to argue that "disrupt profoundly" somehow controls and limits the meaning of "mind-altering" seems to me far from commonsensical, a parsing of vocabulary and syntax that appears arbitrary and even a bit demonic.
Whether or not this meaning was intended by Congress, the way Bybee claims to find the meaning derives from an ungoverned and unscrupulous reading that uses—very selectively—dictionary definitions to produce arcane and obfuscating interpretations. It's like a parody of a deconstructive reading written by a hostile critic.
I will refrain from citing the next paragraph, which takes us into the meaning of "disrupt," as "to break asunder; to part forcibly; to rend." (Here we are back with his 1935 Webster's , and a definition my 1975 American Heritage declares "obsolete." What about a more usual definition, such as "to upset the order of"?) But Bybee needs to come out, at the end of his paragraph, with: "Those acts must penetrate to the core of an individual's ability to perceive the world around him, substantially interfering with his cognitive abilities, or fundamentally alter his personality."
Even Abu Ghraib doesn't make it to torture under this definition.
Bybee gives us Humpty Dumpty literary interpretation, styled as careful legal reasoning. In Through the Looking-Glass , Humpty Dumpty says to Alice:
"There's glory for you!"
"I don't know what you mean by 'glory,' " Alice said.
Humpty Dumpty smiled contemptuously. "Of course you don't—till I tell you. I meant 'there's a nice knock-down argument for you!' "
"But 'glory' doesn't mean a 'nice knock-down argument,' " Alice objected.
"When Iuse a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean—neither more nor less."
"The question is," said Alice, "whether you can make words mean so many different things."
"The question is," said Humpty Dumpty, "which is to be master—that's all."
As Gonzales explained to Patrick Leahy during his confirmation hearing, "Ultimately, it is the responsibility of the department [of Justice] to tell us what the law means, Senator." To be sure.8. Tainted Fruit
How can al-Qaida's 14 worst terrorists stand trial?
By David Cole (from Slate.com)
Torture and disappearances work. That was the essential message in an extraordinary speech by President George W. Bush on Sept. 6 . In the speech, the president acknowledged for the first time the existence of secret detention centers administered by the CIA, admitted that detainees held there had been harshly interrogated, and argued that it was all worth it because the tactics had produced valuable intelligence that had "saved American lives." Now, the president claimed, he was transferring 14 detainees from their "disappeared" states in these CIA "black sites" to Guantanamo Bay, so that they could be "brought to justice."
It seems highly unlikely that these men—who include Khalid Sheikh Mohammed, the alleged mastermind of 9/11, as well as several other high-level al-Qaida leaders—can actually be brought to justice, precisely because of the way the CIA treated them. Here, as in so many of its other national security initiatives, the Bush strategy has backfired, leaving the government fatally hamstrung in holding real terrorists accountable. Just as in Iraq, the administration violated basic principles of the rule of law in the name of "preventing terrorism," and we are all now paying the consequences.
No one looks forward to a trip to Guantanamo, the administration's would-be law-free zone. But it may prove a relative oasis for its 14 latest arrivals. They have already been subject to an officially authorized, secret practice that literally "disappeared" them for years at a time, held them incommunicado without any sort of legal process, protection, or oversight, and then subjected them to such interrogation tactics as water-boarding, in which suspects are made to think that they are drowning in order to encourage them to talk. After all that, Guantanamo may be a relief.
In defense of these so called "alternative" practices—which Bush made clear he was not ceasing, but holding in reserve for future high-level detainees—the president asserted that the administration had gained valuable information. He then cataloged cases in which such information had purportedly identified other terrorists, facilitated their capture, and foiled a number of unspecified terrorist plots.
The president gave insufficient details to test his claims. We can't know, for example, whether these men might have been captured without resort to disappearance and torture, nor can we know how central the information they provided was to the capture of others. Bush essentially asked the world to trust him on this.
But his track record provides little reason for trust. Whether it be the missing weapons of mass destruction in Iraq, the notion that Guantanamo held only the "worst of the worst," the denial that torture has been a central part of administration policy, or the claim that Americans would be wiretapped pursuant only to court order, few of the administration's claims in the "war on terror" have sustained careful analysis.
There is already evidence that President Bush either exaggerated or misspoke with respect to that torture evidence. He claimed that harsh interrogation of one of the CIA's detainees led to the identification and capture of Khalid Sheikh Mohammed, in part by revealing that his nickname was "Mukhtar." But according to intelligence officials, the government paid an informant $25 million for the tip that led to Mohammed's arrest, and the CIA knew Mohammed's nickname even before 9/11. He also claimed that harsh interrogation of Abu Zubaydah led to the identification of Ramzi Bin al-Shibh, but as Spencer Ackerman has pointed out :
A Nexis search for "Ramzi Binalshibh" between September 11, 2001 and March 1, 2002—the U.S. captured Abu Zubaydah in March 2002—turns up 26 hits for The Washington Post alone. Everyone involved in counterterrorism knew who bin Al Shibh was. Now-retired FBI Al Qaeda hunter Dennis Lormel told Congress who Ramzi bin Al Shibh was in February 2002.
Even if it were true that the disappearance and torture of CIA detainees led to the capture of other men, that very fact will very likely preclude any effort at bringing them to justice now. The Supreme Court has ruled that using coerced testimony to convict a defendant violates the most basic principles of fairness and thus violates the Constitution's guarantee of due process. It does so, the court has ruled, not only because coerced confessions are inherently unreliable, but also because the tactic of coercing testimony is itself normatively unacceptable—even where it results in a true confession. The court has also held that evidence obtained by way of leads gained from such coerced testimony must also be excluded from trial as "fruit of the poisonous tree."
As a result, defense lawyers for the 14 CIA detainees need only file President Bush's speech at their trials; a speech in which he claims that the detainees were identified and captured through information gleaned largely from the CIA's mistreatment of other detainees, and their prosecutions would almost certainly have to be dismissed as "tainted fruit." Thus, President Bush has effectively immunized those who may actually be the "worst of the worst" from being held accountable for their wrongs.
The president has a solution, though. He simply won't give the detainees a fair trial. Instead, he proposed in that same speech that Congress adopt procedures for special military tribunals to permit the admission of coerced testimony (and therefore, by extension, the fruits of such coerced testimony). Tortured testimony would be inadmissible, his proposed rules say, but not testimony coerced through measures short of torture. And this administration has long defined "torture" so narrowly that it does not include such tactics as water-boarding or threats of death.
One might dismiss this provision of the new rules as irrelevant, because surely the introduction of coerced testimony would violate the Constitution, the Geneva Conventions, or the McCain Amendment—which makes explicit that the Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment protects everyone in U.S. custody, wherever they are held.
The administration has responses to each of these objections as well. It argues that the U.S. Constitution simply does not protect foreign nationals outside our borders—even when we have locked them up and are threatening to put them to death. The Supreme Court hinted that it disagreed with that position in Rasul and Al Odah , the Guantanamo detention cases of 2004, but it remains an open question.
As for the Geneva Conventions, the administration's military tribunal bill would expressly bar any detainee from asserting in any court any rights under the conventions. That would render Geneva legally irrelevant even if its provisions are blatantly violated. And while the administration lost its fight to defeat the McCain Amendment altogether, it did succeed in ensuring that it lacked any means of enforcement.
If it gets its way now, the Bush administration will have rigged the military trial rules so that it can send detainees it has disappeared and tortured to their deaths, without being bothered by the fact that it abused their fundamental human rights.
In the long run, the court that must ultimately be satisfied is the court of world opinion. What will the world think if the United States is willing to throw aside the Constitution, the Geneva Conventions, and the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment, in order to achieve the convictions President Bush has now promised the families of 9/11 victims? One thing is certain—they will not be celebrating that justice has been done.
If the president truly wanted to bring these most culpable terrorists to justice, he should have treated them fairly from the outset. Having chosen to violate two of the most fundamental principles of international law—the prohibitions against "disappearances" and torture and cruel, inhuman, and degrading treatment—he has painted himself, and the American people, into a corner. His latest speech suggests that as with Iraq, he has no idea how to find a credible way out.9. Does Torture Work?
Seymour Hersh evades the question.
By Fred Kaplan (from Slate.com)
Seymour Hersh's new book, Chain of Command: The Road From 9/11 to Abu Ghraib , reveals our most intrepid investigative reporter working near the top of his game. Basically a compilation of the pieces that Hersh wrote for The New Yorker over the past few years—expanded, updated, and re-edited, in some cases significantly so—the book holds up as a cohesive tale and a searing indictment of the Bush administration: its chicanery with intelligence in the months leading up to the Iraq war, its inadequate planning for the war's aftermath, and its muffing of all the wars—in Iraq, Afghanistan, and the broader war against terrorism—ever since.
There is, however, one gnawing equivocation in Hersh's otherwise forthright account. It comes in the first section, called "Torture at Abu Ghraib," which takes up over 70 pages of this 370-page book. Hersh blew the lid off the Abu Ghraib scandal last spring—the photographs, the Taguba report, the cover-ups, the links up the chain of command (which, in his book, he extends all the way up to the Oval Office). But he has always skirted a vital question: Does torture work ?
Hersh is not alone in his evasiveness. Liberals have a tendency to accept, all too eagerly, the argument that torture is ineffective, that it doesn't yield useful information, that a tortured detainee will tell his inquisitors whatever they want to hear. This is an appealing argument. If it's true, we don't have to wrestle with any moral or legal dilemmas. If torture simply doesn't work, all those difficult questions are moot.
But it is, in fact, very likely that, under some circumstances, with some detainees, torture does produce, in the parlance of the trade, "actionable intelligence." Torture to produce a confession ("Yes, I am a terrorist") almost certainly is useless; at some point of pain, many people would confess to anything. But torture to elicit specific information (Who told you to do this? Where did the meeting take place? Who else is in your cell? What are they planning to blow up tomorrow?) sometimes will do—clearly, has done—the job. If it hasn't, many times over the centuries, then why do so many regimes engage in it? Some no doubt do it for the kicks, but they're not all purely sadists.
I do not mean to advocate torture. I mean only to suggest that it's time to start wrestling with those moral and legal dilemmas, to face them straightforwardly. If al-Qaida strikes the United States again, our leaders—whoever they are—will be tempted to resort to torture as a method of getting vital intelligence quickly, and we or they or someone should have mapped out crucial distinctions ahead of time: What is acceptable, what isn't; who should engage in it, who shouldn't; for what purposes is it legitimate, for what purposes isn't it; or whether we should decide, after an honest appraisal of its costs and benefits, that the whole business of torture—however you define it—is irredeemably beyond the pale.
It should be noted that the torture at Abu Ghraib appears to be utterly unjustified by any standards. Hersh clearly shows—and the Schlesinger report has confirmed—that the vast majority of the inmates at Abu Ghraib were common criminals or total innocents rounded up in random sweeps who were subjected to no screening before their horrendous ordeals began.
But what about the inmates elsewhere, many of whom really were, and are, al-Qaida operatives? Hersh refers to a highly classified "special-access program"—approved by President Bush and carried out by Secretary of Defense Donald Rumsfeld—that involved, as he puts it, "snatching or strong-arming suspected terrorists and questioning them in secret prison facilities in Singapore, Thailand, and Pakistan, among other sites." What about the torture—presumably there's torture of one sort or another—that went on there? For the moment, forget about whether such techniques are proper. That's a separate though no less important matter, to be dealt with after this question is answered: Did they produce useful intelligence?
At one point, Hersh suggests that they did. He writes that, early on in the Iraqi insurgency, detainees weren't giving their American interrogators any substantive information. Hersh quotes a "former intelligence official" on what Stephen Cambone, the assistant secretary of defense in charge of the operation, did in response in mid-2003:
Cambone says, I've got to crack this thing and I'm tired of working through the normal chain of command. I've got this apparatus set up—the black special-access program—and I'm going in hot. So he pulls the switch, and the electricity begins flowing last summer. And it's working. We're getting a picture of the insurgency in Iraq and the intelligence is flowing into the white world. We're getting good stuff.
Things went awry, Hersh's source goes on, because, when the order went out, too few soldiers were trained in what to do, and too many of their commanders looked the other way. But notice what the source said about the initial results: "[I]t's working. … We're getting good stuff." So, is the problem Cambone's orders or the fact that the U.S. military didn't have enough people with the brains or training to carry them out with restraint?
The "former senior intelligence official" seems to suggest the latter. Hersh, summarizing his words, writes:
The SAP [special-access program] was useful as long as it was under the control of "good, well-trained guys. But politics got involved, and decisions were based on speed, and not patience."
Similarly, Hersh quotes a "Pentagon consultant" as saying of the Abu Ghraib torturers:
We don't raise kids to do things like that. When you go after Mullah Omar, that's one thing. But when you give the authority to kids who don't know the rules, that's another.
Again, the question is tacitly raised: What about when "you go after Mullah Omar"? Then is it all right to use extreme measures, if necessary?
In a later chapter, dealing with the failure of U.S. intelligence and especially the collapse of the CIA's clandestine service through the 1980s and '90s, Hersh tells a tantalizing story about the Jordanian security service. In the mid-1980s, Abu Nidal's terrorist organization threatened the life of Jordan's King Hussein. The king told the service, "Go get them." In response, security agents seized close family members. Hersh continues:
The Abu Nidal suspect would be approached, given a telephone, and told to call his mother, who would say, according to one CIA man, "Son, they'll take care of me if you don't do what they ask." (To his knowledge, the official carefully added, all the suspects agreed to talk before any family members were actually harmed.) By the early 1990s, the group was crippled by internal dissent and was no longer a significant terrorist organization. … "Jordan is the one nation that totally succeeded in penetrating a group," the official added. "You have to get their families under control."
Hersh doesn't explicitly endorse this method. But does he implicitly? Should he? Should we? He adds, "Such tactics defy the American rule of law, of course, and the CIA's procedures, and many experts doubt that they are even effective." Who are these doubtful experts, and what's their reasoning? Hersh's CIA source seems to think the tactics were effective. As for law and procedures, should they stand in the way of taking apart al-Qaida? It's a radical proposition for the U.S. government to start acting like the Mafia. Again, I don't have the answers. But it's time that we all began to ask the questions.10. The Center Cannot Hold: The Bush Regime in Crisis
by Juan Santos (from www.dissidentvoice.org)
The headlines tell the tale:
From the Washington Post :”Torture Is Torture”
From the Boston Globe :”Rebelling against torture and Bush”
From Fox News :”Bush Faces Election Year Revolt in Own Party”
From Legal News Television :”Bush Fears War Crimes Prosecution”
The President is naked: He is no longer a “wartime president”; he’s now the Torture President.
Officials in the Bush White House could be charged with war crimes.
So they were warned by then -- White House Counsel Alberto Gonzalez after they launched their war against Afghanistan, according to documents obtained by Newsweek last Spring. Gonzalez warned that violations of the War Crimes Act can be punished severely -- including by death, and that it was “difficult to predict with confidence” how a future Justice Department might apply the law.
Special focus was placed on language in the Geneva Conventions that condemns "outrages upon personal dignity" and "inhuman treatment" of prisoners. These crimes were "undefined," according to Gonzalez, the same plea we hear today from President Bush.
Warning the administration of its potential culpability, Gonzalez urged the President, to, in effect, bluff it out. He wrote, "Your determination would create a reasonable basis in law that (the War Crimes Act) does not apply which would provide a solid defense to any future prosecution."
A series of Administration torture memos have been made public, memos vetted by Gonzalez, lawyers at the National Security Council and staffers for Vice President Dick Cheney. They were meant to provide the regime with legal cover for state-approved torture and held that Bush, as Commander-in-Chief, was above the law.
According to a Justice Department memo on August 1, 2002, the administration’s “ban on torture is limited to only the most extreme forms of physical and mental harm" -- actions that might cause "death or organ failure." Anything “less,” the regime defined as mere “abuse.”
“Abuse” would seem to include these techniques used against detainees in Iraq, according to an FBI memo released by the ACLU: “strangulation, beatings, [and] placement of lit cigarettes into the detainees ear openings."
In a February 2002 letter, Bush took the matter of torture on himself: "I accept the legal conclusion of the Attorney General and the Department of Justice that I have the authority to suspend Geneva (conventions) as between the United States and Afghanistan. I reserve the right to exercise this authority in this or future conflicts."
That defense evaporated with the recent Supreme Court decision in Hamdan v. Rumsfeld , which held that the US is bound by the letter of the Geneva Conventions.
The administration, facing the reality of potential prosecution as war criminals, is increasingly desperate.
The GOP is a party in revolt against itself, one trying to distance itself from itself, ducking for cover from itself and from the fallout of simultaneously being too fascistic and not fascistic enough.
The Bush regime and the Republicans are in profound danger on other fronts as well. Following the lead of imperialist strategists from Democrat Zbignew Brzezinski to the Project for a New American Century, the regime committed itself to a plan of conquest in the Middle East and Central Asia, and to a fascistic program of political and racial repression at home, all under the rubric of a “war on terror.”
Bush apparently took Brzezinski literally when he warned in The Grand Chessboard , his 1997 call for a US global hegemony: “It is also a fact that America is too democratic at home to be autocratic abroad. This limits the use of America's power, especially its capacity for military intimidation.”
The Bush crew determined, in any case, to make the US less “democratic” at “home,” and to launch a series of pre-planned wars for global dominance abroad.
Deeply hated by people everywhere, on the verge of losing power in the House and Senate, divided over torture, spying, military tribunals, secret prisons, immigration, and plans for war against Iran, mired in loss in Iraq, rocked by scandal and widespread corruption, exposed as mass killers of the innocent in Lebanon and as racists in New Orleans, the Republican regime is finding that its center cannot hold.
The Christian Science Monitor says that 61% of people in the US oppose the war in Iraq.
By a margin of 52% to 43%, respondents to a Zogby poll want Congress to consider impeaching President Bush if he wiretapped American citizens without a judge’s approval -- which, of course, he did.
The Republican Party and the Bush regime are in chaos.
Strategically, the Republicans have pushed things to a breaking point: they’ve overextended the Empire in ways that could lead to its defeat.
At last the mainstream press is on the attack -- they want no imperial defeat -- and would-be “moderate” Republican imperialists like John McCain are in rebellion. Even Colin Powell, who as one pundit noted “helped design and lead” Bush’s policy toward “terrorists,” is on the attack, breaking his public silence on the matter of torture years after the fact. The lifeboat is filled with rats.
Republican operatives have a keen eye on Bush’s military lap dog, Tony Blair, as his engine sputters in mid-flight, as his key supporters demand his resignation, his Labor Party painfully aware that if it “stays the course” its dominance of British politics is lost. Blair has promised to resign by Spring -- just long enough to help Bush launch war against Iran, one assumes.
Even here the Republicans are divided. According to Martin Walker of UPI, Defense Secretary Donald Rumsfeld has cold feet over the regime’s plan for striking Iran while Vice President Dick Cheney is pushing all the harder for war. Walker writes, “This heralds the first important policy breech between the triumvirate of Bush, Vice President Dick Cheney and Rumsfeld, sometimes known in Washington as "the iron triangle," in almost six years of the Bush administration.”
Let no one think the mainstream press or the Republicans suddenly “got religion,” or anything else akin to morality.
The Bush regime is failing miserably -- in Iraq and elsewhere -- at fulfilling the geo-strategic mandate laid out by the “Democrat’s Kissinger,” Brzezinski whose strategic thinking finds striking parallels in the Project for a New American Century cabal that runs the White House.
"The most immediate task,” Brzezinski wrote, “is to make certain that no state or combination of states gains the capacity to expel the United States from Eurasia or even to diminish significantly its decisive arbitration role."
The Bush failure in Iraq sets the stage for just such a scenario to unfold, and the regime’s move on Iran threatens to crystallize an opposing war bloc -- precisely the bloc Brzezinski most openly worried about in The Grand Chessboard, one that might expel the US from Eurasia or severely limit its imperial designs there:
Potentially, the most dangerous scenario would be a grand coalition of China, Russia, and perhaps Iran, an "antihegemonic" coalition united not by ideology but by complementary grievances. It would be reminiscent in scale and scope of the challenge once posed by the Sino-Soviet bloc, though this time China would likely be the leader and Russia the follower.
The Republicans have nothing of the certainty the Labor Party shows. Some think they’ve gone too far, others not far enough down the road to global war and internal repression. Bush faces one “revolt from below” in the Senate over torture and military tribunals, and another from House Republicans who favor a profoundly racist and punitive attack on brown migrants.
Seven leading conservatives, including Richard Viguerie and Christopher Buckley recently issued a call in the Washington Monthly for a Republican defeat.
The Republicans can no longer rule, and the Democrats offer no alternative at all; however you slice it, the US is still the US, and if anything stirs people here it is hatred of Bush and Cheney, not love for the imperialist “B” team called the Democrats.
If there were a mass radical movement in the US, the Bush regime would be toast.
The only force poised to fully capitalize on the Republican crisis is the Democratic Party. It’s a crime. Silent during all the long years of torture and “secret” prisons, silent on the coming war against Iran, silent on Iraq -- except to say that they know how such things should be done -- silent as they played along with developments toward fascism, the Democrats will now pose as upholders of the “real” “American” values.
And it will be a lie.
They will impeach and try Bush if they can and if they have to by resorting to nothing but lies: “America” really doesn’t torture they will say -- while evading the history of the Philippines, Viet Nam, the Indian Wars, and the death squads and torture regimes the Empire has backed from the Shah of Iran to Guatemala, to their ex-puppet Saddam Hussein himself.
But make no mistake, despite the Democrats, the emerging crisis of the Bush regime is of historical importance.
At this moment the Empire’s rulers are vacillating -- they can’t back down and apparently can’t move forward. What we see developing could turn quickly into a vacuum of power, a paralysis of the ruling class.
That means its time for us to stop vacillating.
The regime is not all powerful. The steamroller toward fascism is not unstoppable. It never was .
Their grip is slipping, right now.
This is a chance for us to stop the coming war against Iran and with it the awful risk of a nuclear war; to force a pullout from Iraq, to stop the secret dungeons and torture chambers; to abort fascism in the US -- to see it stillborn. Even, perhaps, to clear the path so we can force drastic action on global warming, to stop the mass death of Life on Earth.
It’s not time to rely on the Republican’s Silent Partner.
It’s time to take it to the streets. It’s our chance to drive out the Bush regime.
It’s the only chance we’ll get.
Juan Santos is a Los Angeles based writer and editor. His essays from 2006 can be found at: http://the-fourth-world.blogspot.com/. He can be reached at: JuanSantos@Mexica.net) 12. Habeas Corpus Must Not be Sacrificed in War on Terror -- by Jared Goldstein
Mohammed Daihani is a Kuwaiti accountant imprisoned by the United States at Guantanamo Bay for almost four years. I was one of the lawyers who brought a suit for habeas corpus on Mr. Daihani's behalf, asking for an explanation of why the government was imprisoning him.
After the court ordered the government to explain its reasons for holding Mr. Daihani, the government released documents showing that military officials had concluded that Mr. Daihani had never taken part in any terrorist activities against the United States, and that he was not a member of al-Qaida, the Taliban, or any other anti-American group. Rather, Mr. Daihani was accused of having given a few hundred dollars to what he believed was a legitimate charity, which had given money to another organization, which, in turn, was alleged to be associated with al-Qaida.
After years of interrogations at Guantanamo, the military interrogators had come to realize that Mr. Daihani had not meant to give money to support terrorism, having had no inkling that his donation could have supported any terrorist groups.
Yet to the U.S. military it did not matter whether Mr. Daihani had intended to support terrorism or even known that he might have supported terrorism. Even if his support for terrorism was entirely accidental, the military designated Mr. Daihani an "enemy combatant," and, on that basis, kept him locked up 24 hours a day for four years, in solitary confinement in a 9- by 6-foot cell, forbidding him to speak to his family or even to read a newspaper.
The absence of any evidence that Mr. Daihani had ever done anything to support terrorism came to light only because the right to seek habeas corpus was available. After the Supreme Court held, in 2004, that Mr. Daihani and the other detainees could seek habeas corpus, Mr. Daihani was allowed to meet with his lawyers, who worked for several years to win his freedom. More than a year after it became public that no evidence supported Mr. Daihani's imprisonment, the government released him to Kuwait, his home country.
Congress is now poised to do something it has never done before: Take away the right of prisoners to seek habeas corpus. Since long before the United States became a nation, the right to seek habeas corpus has guaranteed that anyone imprisoned by the government may ask a judge to determine whether he or she is properly imprisoned. The right to seek habeas corpus has applied to prisoners regardless of whether they are citizens or foreigners, and no matter how dangerous they are accused of being, or how horrible their alleged crimes.
The right to habeas corpus has been a basic part of English common law, and, later, American law, since the adoption of the Magna Carta, in 1215, which established that no one could be imprisoned on the mere say-so of the king.
The founders of the United States considered habeas corpus to be such a fundamental protection against tyranny that they enshrined it in the Constitution. Congress has expanded the right to seek habeas corpus several times, and it has never tried to take the right away. To do so now would turn our backs on our fundamental principles of justice.
The Bush administration has proposed revoking this fundamental right for the 450 or so foreigners held at Guantanamo. If Congress goes along, no limits will remain on the government's power to imprison people without evidence and without trial. Doubtlessly, the United States can and should lock up terrorists posing a threat to the nation -- but it must do so within the bounds of law.
Our strength as a nation is demonstrated when we treat even our worst enemies within the rule of law.
The courts must be available -- as they have been for centuries -- to make sure that the people we imprison really are our enemies. If Congress takes away the right of Guantanamo detainees to go to court, the government will be able to wrongly hold people forever. There will be nothing anyone can do about it.
If Congress eliminates habeas corpus for the Guantnamo detainees has had a trial in which a judge looked at the evidence alleged to justify their imprisonment. If Congress takes away the right to seek habeas corpus, no one will ever know how many more prisoners are completely innocent.
The damage that unlawful imprisonment inflicts on people like Mr. Daihani is immeasurable. What can be known is the damage that eliminating habeas corpus would do to the United States: The United States would no longer be a nation under law but, rather, a nation without law.
(Jared Goldstein is an associate professor at Roger Williams University School of Law, where he teaches constitutional and environmental law.)12. Even Timothy McVeigh Was Afforded Constitutional Rights
The Flaws in the Military Commissions Act
By Sen. RUSSELL FEINGOLD
Let me be clear: I welcome efforts to bring terrorists to justice. It is about time. This Administration has too long been distracted by the war in Iraq from the fight against al Qaeda. We need a renewed focus on the terrorist networks that present the greatest threat to this country.
But we wouldn't be where we are today, five years after September 11 with not a single Guantanamo Bay detainee having been brought to trial, if the President had come to Congress in the first place, rather than unilaterally creating military commissions that didn't comply with the law. The President wanted to act on his own, and he dared the Supreme Court to stop him. And he lost. The Hamdan decision was an historic rebuke to an Administration that has acted for years as if it were above the law.
Finally, only because he was essentially ordered to do so by the Supreme Court, the President has agreed to consult with Congress. I would have hoped that we would take this opportunity to pass legislation that allows us to proceed in accordance with our laws and our values. That is what separates America from our enemies. These trials, conducted appropriately, have the potential to demonstrate to the world that our democratic, constitutional system of government is our greatest strength in fighting those who attacked us.
And that is why I am saddened that I must oppose this legislation. Because the trials conducted under this legislation will send a very different signal to the world, one that I fear will put our own troops and personnel in jeopardy both now and in future conflicts. To take just a few examples, this legislation would permit an individual to be convicted on the basis of coerced testimony and hearsay, would not allow full judicial review of the conviction, and yet would allow someone convicted under these rules to be put to death. That is simply unacceptable. We would not stand for another country to try our citizens under those rules, and we should not stand for our own government to do so, either.
Not only that, this legislation would deny detainees at Guantanamo Bay and elsewhere-people who have been held for years but have not been tried or even charged with any crime-the ability to challenge their detention in court. Among its many flaws, this is the most troubling-that the legislation seeks to suspend the Great Writ of habeas corpus.
The legislation before us is better than that originally proposed by the President, which would have largely codified the procedures the Supreme Court has already rejected. And that is thanks to the efforts of some of my Republican colleagues for whom I have great respect and admiration.
But this bill remains deeply flawed, and I cannot support it.
One of the most disturbing provisions of this bill eliminates the right of habeas corpus for those detained as enemy combatants. I support an amendment by Senator Specter to strike that provision from the bill. I ask unanimous consent that my separate statement on that amendment be put in the record at the appropriate point.
Habeas corpus is a fundamental recognition that in America, the government does not have the power to detain people indefinitely and arbitrarily. And that in America, the courts must have the power to review the legality of executive detention decisions.
Habeas corpus is a longstanding vital part of our American tradition, and is enshrined in the U.S. Constitution.
As a group of retired judges wrote to Congress, habeas corpus "safeguards the most hallowed judicial role in our constitutional democracy--ensuring that no man is imprisoned unlawfully."
This bill would fundamentally alter that historical equation. Faced with an executive branch that has detained hundreds of people without trial for years now, it would eliminate the right of habeas corpus.
Under this legislation, some individuals, at the designation of the executive branch alone, could be picked up, even in the United States, and held indefinitely without trial and without any access whatsoever to the courts. They would not be able to call upon the laws of our great nation to challenge their detention because they would have been put outside the reach of the law.
That is unacceptable, and it almost surely violates our Constitution. But that determination will take years of protracted litigation.
Why would we turn our back on hundreds of years of history and our nation's commitment to liberty -- particularly when there is no good reason to do so? We should be working to provide a lawful system of military commissions so that those who have committed war crimes can be brought to justice. We can do that quite well without denying one of the most basic rights guaranteed by the Constitution to those held in custody by our government.
Some have suggested that terrorists who take up arms against this country should not be allowed to challenge their detention in court. But that argument is circular--the writ of habeas allows those who might be mistakenly detained to challenge their detention in court, before a neutral decision-maker. The alternative is to allow people to be detained indefinitely with no ability to argue that they are not , in fact, enemy combatants. Unless any of my colleagues can say with absolute certainty that everyone detained as an enemy combatant was correctly detained--and there is ample evidence to suggest that is not the case--then we should make sure that people can't simply be locked up forever, without court review, based on someone slapping a "terrorist" label on them.
There is another reason why we must not deprive detainees of habeas corpus, and that is the fact that the American system of government is supposed to set an example for the world, as a beacon of democracy. And this provision will only serve to harm others' perception of our system of government.
A group of retired diplomats sent a very moving letter explaining their concerns about this habeas-stripping provision. Here is what they said: "To proclaim democratic government to the rest of the world as the supreme form of government at the very moment we eliminate the most important avenue of relief from arbitrary governmental detention will not serve our interests in the larger world."
Many, many dedicated patriotic Americans share these grave reservations about this particular provision of the bill.
They have reservations not because they sympathize with suspected terrorists. Not because they are soft on national security. Not because they don't understand the threat we face. No. They, and we in the Senate who support the Specter amendment, are concerned about this provision because we care about the Constitution, because we care about the image that American presents to the world as we fight the terrorists. Because we know that the writ of habeas corpus provides one of the most significant protections of human freedom against arbitrary government action ever created. If we sacrifice it here, we will head down a road that history will judge harshly and our descendants will regret.
We must not imperil our proud history. We must not abandon the Great Writ. We must not jeopardize our nation's proud traditions and principles by suspending the writ of habeas corpus, and permitting our government to pick people up off the street, even in U.S. cities, and detain them indefinitely without court review. That is not what America is about.
Unfortunately, the suspension of the Great Writ is not the only problem with this legislation, nor is it the only instance where the legislation goes beyond establishing military commissions to include unnecessary provisions with deeply troubling results.
The Administration has spoken about the need for this legislation to bring clarity to the War Crimes Act, which makes it a crime to violate Common Article 3 of the Geneva Conventions. It has proposed that we specifically list the actions that would be considered crimes under that law. On the face of it, that certainly sounds sensible. But when you look at this legislation, you realize that the modification it makes only muddies the waters. Not only that, it does so retroactively.
The key problem is in the definition of "cruel or inhuman" treatment. This is a critical definition because it is the provision that determines which coercive interrogation techniques amount to crimes under U.S. law. But because of the complex structure of this section, it is very difficult to understand what the new definition would criminalize, and I am concerned that any ambiguity may be interpreted too narrowly by some. The definition incorporates several terms that in turn have their own separate definitions, and it even has one new definition that doesn't go into effect until the date of enactment, even though the rest of the amendments to the War Crimes Act are made retroactive to 1997. Frankly, the new prohibition is extremely unclear. And we have already heard different interpretations of it from Senators and Administration officials who negotiated the language. If our goal is to give unambiguous guidance to our personnel, and the courts, this does not do it.
The way the provision is drafted, it even seems designed to grant immunity to senior officials who authorized coercive interrogation techniques.
We should just follow the approach originally endorsed by the Senate Armed Services Committee, which would have applied the language of the McCain amendment.
I am also very concerned about the definition of unlawful enemy combatant that is included in this legislation, and about the corresponding issue of the jurisdiction of the military commissions.
This legislation has been justified as necessary to allow our government to prosecute Khalid Sheikh Mohammed and other dangerous men recently transferred to Guantanamo Bay. Yet if you look at the fine print of this legislation, it becomes clear that it is much, much broader than that. It would permit trial by military commission not just for those accused of serious terrorist crimes, but also individuals, including legal permanent residents of this country, who are alleged to have "purposefully and materially supported hostilities" against the United States or its allies.
This is extremely broad, and key terms go undefined. And by including hostilities not only against the United States but also against its allies, the bill allows the U.S. to hold and try by military commission individuals who have never engaged, directly or indirectly, in any action against the United States.
Not only that, but the bill would also define as an unlawful enemy combatant subject to trial by military commission, anyone who "has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense." This essentially grants a blank check to the executive branch to decide entirely on its own who can be tried by military commission.
If we are going to establish military commissions outside of our traditional military and civilian justice systems, at a minimum we should explicitly limit their application to the worst of the worst, those who pose a serious threat to our country. We shouldn't leave it up to just one branch of government to make these incredibly important decisions.
The bulk of this legislation concerns the structure and process of military commissions. Although we heard from many witnesses at congressional hearings this summer that we should hew as closely as possible to the long-established military system of justice, this bill instead essentially starts from scratch and creates a whole new structure. It does so despite Justice Kennedy's wise advice in his concurrence in Hamdan , where he said: "The Constitution is best preserved by reliance on standards tested over time and insulated from the pressures of the moment."
For example, this legislation creates a presumption for the admissibility of hearsay evidence. Now, it is true that because of the exigencies of war and active combat situations, hearsay rules may need to be structured differently than they are in our criminal courts, but the rules laid out in the UCMJ are drafted to handle these same exigencies. While there may need to be some adjustments to the UCMJ hearsay rules, we need not discard them altogether.
The presumption against hearsay is a fundamental protection built into our existing legal structures to ensure that proceedings yield a just and fair result. Yet in this provision and elsewhere, the legislation erodes such protections-going far beyond what is allowed in the military system-and without justification.
Even more disturbing is that the bill appears to permit individuals to be convicted, and even sentenced to death, on the basis of coerced testimony. According to the legislation, statements obtained through cruel, inhuman, or degrading treatment, as long as it was obtained prior to December 2005 when the McCain amendment become law, would apparently be admissible in many instances in these military commissions.
Now, it is true that the bill would require the commission to find these statements have sufficient reliability and probative value. But why would we go down this road of trying to convict people based on statements obtained through cruel, inhuman, or degrading interrogation techniques? Either we are a nation that stands against this type of cruelty and for the rule of law, or we are not. We can't have it both ways.
The idea that coerced statements can be used as long as they were obtained long enough ago is appalling. It seems to assume that there was a lack of clarity in the law prior to December 2005. In fact, there was great clarity, until this Administration decided to invent a narrow definition of torture that had never been used or accepted anywhere in the civilized world. The McCain amendment was needed to get this Administration to return to the law. It was a repudiation of the legal theories of the infamous Bybee memo, which the Administration even said it was withdrawing once it was publicly revealed. Its enactment should not now be used as a dividing point before which evidence obtained through cruel and inhuman treatment can be used in court.
At times of great adversity, the strength of a nation's convictions is tested and its true character revealed. If we sacrifice or qualify our principles in the face of the tremendous challenge we face from terrorists who want to destroy America, we will be making a terrible mistake. If we cloak cruel or degrading interrogations done in the name of American safety with euphemisms like "alternative techniques," if we create arbitrary dates for when differing degrees of morality will apply, we will have betrayed our principles and ourselves.
Statements obtained through such techniques should not be admissible, even against the most vicious killers in the world, in proceedings held by the government of the United States of America. Period.
In sum, this legislation is very troubling and in many respects legally suspect. I fear the end result of this legislation will only be more delay. It will surely be subject to further legal challenge, and may squander another four or five years while cases work their way through the courts again.
We can and must fight terrorism aggressively without compromising fundamental American values. We must remember what the Army Judge Advocate General told me at a Judiciary Committee hearing this summer: that the United States should set an example for the world, and that we must carefully consider the effect on the way our own soldiers will be treated.
In closing let me do something I don't do very often--and that is quote John Ashcroft. According to the New York Times, at a private meeting of high-level officials in 2003 about the military commission structure, then-Attorney General Ashcroft said: "Timothy McVeigh was one of the worst killers in U.S. history. But at least we had fair procedures for him." How sad that this Congress would seek to pass legislation about which the same cannot be said.
(From remarks on the Senate floor.)