BushÕs Torture Ticking Time Bomb: Sins of Commission
Have Republicans become the party of torture, secret prisons, and indefinite detention? In his speech last month on signing the Military Commissions Act, President Bush declared that the bill Òsends a clear messageÉ We will never back down from the threats to our freedom.Ó ÒRough interrogationÓ (a.k.a. torture) in the name of freedom may be BushÕs clearest ideological legacy.
Bush endlessly reminds listeners that Òthe U.S. does not tortureÓ and that Òtorture is not an American value.Ó But ÒWhat is torture?Ó is the Bush version of the Pontius Pilate question. Bush appears to be using the definition of torture crafted by Justice Department official John Yoo: if detainees werenÕt maimed or killed, they werenÕt tortured. And the Justice Department acts as if, even if detainees are killed during interrogations, it is best to treat the deaths as harmless errors.
The MCA was rushed through Congress in September to overturn a Supreme Court decision that struck down BushÕs military tribunals and scorning of the Geneva Conventions. The new law -far more dangerous than the more controversial Patriot Act- is perhaps the biggest disgrace Congress has enacted since the Fugitive Slave Act of 1850. Stephen Gray, the author of Ghost Plane, notes, ÒThe act grants fewer rights to defendants than the Nazis got at Nuremberg.Ó
The MCA awarded Bush the power to label anyone on earth an enemy combatant and lock then up in perpetuity, nullifying the habeas corpus provision of the Constitution and Òturning back the clock 800 years,Ó as Sen Specter (R-PA) said. While only foreigners can be tried before military tribunals, Americans accused of being enemy combatants can be detained indefinitely without charges and without appeal. Even though the Pentagon has effectively admitted that many of the people detained at Guantanamo were wrongfully seized and held, the MCA presumes that the president of the United States is both omniscient and always fair.
Instead of clear standards established by the legislature, the president decrees what methods of brutalizing detainees are allowed, regardless of the Geneva Convention or the U.S. Anti-Torture Act. As Yale law professor Jack Balkin notes, ÒThe President has created a new regime in which he is a law unto himself on issues of prisoner interrogations. He decides whether he has violated the laws, and he decides whether to prosecute the people he in turn urges to break the law.Ó White House press spokesman Tony Snow agreed that the law made Bush the Òfinal arbiter on torture.Ó
Though U.S. government interrogation methods have been intensely controversial around the world, most congressmen looked the other way and rubber-stamped BushÕs legislative wish list...
Since the end of the Middle Ages, civilized nations have frowned on relying on brute force to determine facts in judicial proceedings. But Monty Python appears to be the patron saint of the MCA. ÒEvidenceÓ gained via coercion is admissible as long as a military judge deigns that the methods used did not rise to torture. Military commissions can accept ÒevidenceÓ produced by interrogations that violated Òcruel, unusual or inhumane treatmentÓ standardsas long as such abuses occurred before Dec. 30, 2005, when Congress passed the Detainee Treatment Act. (Bush effectively vetoed this law with a signing statement.) It was nice that Congress formally picked a date for the rebirth of decency, but it doesnÕt have sticking power.
The Bush team is exploiting fears on national security to practically guarantee the use of tortured confessions. The Justice Department has asked a federal judge to prohibit defendant Majid Khan, a former Catonsville, Md. resident who was nabbed in Pakistan, from revealing to anyone -even his defense attorney -the interrogation methods he endured....
The MCA creates procedural biases akin to a 1938 Moscow show trial. Defense attorneys can Òchallenge the use of hearsay information obtained through coercive interrogations in distant countries only if they can prove it is unreliable,Ó the Washington Post noted. >But it will be almost impossible to disprove an accusation when a defense lawyer is not allowed to question or perhaps even know who made the charge.
From early 2002, some high-ranking Bush administration officials have apparently feared that they could face prosecution for their interrogation policies. But the MCA retroactively decriminalized torture at least such actions committed before the end of 2005. The act will make it almost impossible for victims of torture (or their survivors) to bring cases against perpetrators. The closest precedent for this blanket pardon comes not from American justice but from the amnesty laws Latin American regimes enacted to immunize military officials who carried out bloody crackdowns against leftists in the 1970s and 1980s...
Aside from Bush and other RepublicansÕ dishonest taunts of Democrats, torture was a non-issue in congressional campaigns. The New York Times noted, ÒIn a season of shameless attack ads, torture is still too shameful to be debated.Ó Few, if any, Democratic candidates had enough confidence in themselves or the voters to highlight the Bush administrationÕs worst abuse of power.
That doesnÕt mean, however, that they wonÕt use the investigative powers their new majority affords. For though Bush rhetorically takes the high ground on the torture issue, it now appears that the president may personally have blood on his hands. On Nov. 14, the ACLU released a CIA letter confirming the existence of Òa directive signed by President Bush granting the CIA the authority to set up detention facilities outside the United States and outlining interrogation methods that may be used against detainees.Ó This confirms a May 2004 e-mail from the FBIÕs ÒOn Scene CommanderÓ in Baghdad stating that U.S. military officials in Iraq assured him that a secret presidential Executive Order permitted using extreme interrogation techniques considered illegal by the FBI including Òsensory deprivation through the use of hoods,Ó stress positions, and military dogs.
The Justice Department has so far blocked release of the actual document, but a federal judge may force the feds to cough it up. Sen. Patrick Leahy (D-Vt.), the incoming chairman of the Senate Judiciary Committee, is also demanding to see the document. If this Bush letter does hit the streets, it may be akin to a 1972 memo from Richard Nixon specifying the exact methods of lock-picking the Watergate burglars should use. BushÕs involvement in the torture scandal may be far deeper than NixonÕs involvement in Watergate.
The Bush secret ruling on interrogation methods may explain the Justice DepartmentÕs passivity on torture cases. The CIA Inspector General recommended that the Justice Department prosecute a CIA agent involved in the demise of an Iraqi detainee at Abu Ghraib. As the New Yorker reported, Manadel al-Jamadi died during an interrogation during which his head was covered in a plastic bag and he was Òshackled in a crucifixion-like pose that inhibited his ability to breathe.Ó This was one of at least eight cases the CIA referred for prosecution, including cases of homicides during CIA interrogations in Afghanistan and Iraq. But the Justice Department refuses to prosecute any of the alleged torturers. The feds cannot prosecute CIA agents without risking public disclosure of the presidential order authorizing the torture of detainees.
As long as the Justice Department doesnÕt prosecute federal torturers, Bush can continue denying U.S. torture. People killed during interrogations thus remain the exceptions that prove the rule that the U.S. never tortures. The military classified the deaths of at least 34 detainees as suspected or confirmed homicides; the CIA has released no tally of its morgue entries.
The New Yorker noted, Òunder the Bush AdministrationÕs secret interrogation guidelines, the killing of Jamadi might not have broken any laws.Ó Unfortunately, there is no reason to assume that Bush has not given interrogators a license to kill. Steven Bradbury, head of the Justice DepartmentÕs Office of Legal Counsel, told a closed session of the Senate Intelligence Committee early this year that Bush could order killings of suspected terrorists within the United States. When Newsweek contacted the Justice Department to verify this novel legal doctrine, spokeswoman Tasia Scolinos stressed that BradburyÕs comments occurred during an Òoff-the-record briefing.Ó Any Bush-ordered killings within the United States would also presumably be off-the-record.
President Bush has been able to seize nearly boundless power because his administration has been able to control what Americans know. But this control is crumbling. Democratic congressional investigations, court cases, and the military tribunals themselves could unearth far more damaging documents and photographs than anything seen thus far.
The MCA is Òenabling actÓ legislation that preserves the appearance of law while empowering the commander in chief to do as he pleases. BushÕs torture policies may signal that he accepts the dicta of Richard Nixon: ÒWhen the president does it, that means that it is not illegal.Ó But the firewall of high approval ratings that buttressed Bush when the first Abu Ghraib photos leaked is gone. The media is exasperated with the administrationÕs penchant for secrecy. Much of BushÕs conservative intellectual bodyguard has given up the fight. It remains to be seen how much dunking, thumping, and cold water the Bush team can survive.
James Bovard is the author of Attention Deficit Democracy and eight other books.