Living Under the Guillotine's Blade

April 27, 2007

Imagine you see a man on his knees, arms outstretched, with his head resting on a wooden block. Ten feet above his head, the sharp edge of a guillotine blade hangs suspended. The blade is held back by a rope that is visibly frayed and weak. It appears the rope might snap at any moment, and the blade will descend to plunge through the man's neck. Blood will spurt over the platform on which the guillotine sits, and the man's head, brutally shorn of the rest of his body, will thud onto the darkened platform below, onto the wood stained with the blood from earlier victims. This scene has been enacted many times before.

One aspect of the drama playing out before you is exceptionally strange. No one is forcing the man to remain on his knees, with his head calmly resting on the block. He could get up and walk off the platform at any moment. Yet he doesn't. He appears to be entirely unconcerned about the fatal danger above him, the blade that hangs there with infinite patience, silently waiting for its moment. There are others watching this scene with you. Some of them, like you, shout out warnings to the man. Still he does not get up. You and the others have been unable to move the man, or to disable the blade. Only the man with his head on the block can save himself. He won't. He stays on his knees, with his head on the block. With every moment that passes, the rope holding the blade back weakens. You know, as the man himself knows, that the rope will break eventually.

Yet he stays there. Warnings continue to be shouted; he continues to ignore them. The rope frays still more. Some people in the gathered crowd finally leave. The tension had become unbearable to them. But you and a few others remain. Surely, you think, the man will get up eventually, before the rope breaks. Why would he remain there, when he knows that will mean his certain death? And still he doesn't move.

The minutes pass, and turn into hours. Nothing changes. The man remains in position. The blade waits. The only unknown is the precise moment when the blood will begin to flow, the moment when another life will be brutally destroyed, as so many have been destroyed before.

You feel compelled to remain, and to watch. You are unable to turn away. Death hangs in the air.

********************

This is how we live in America today. The final destruction of liberty, and of life itself, could begin at any moment. Yet we act like the man with his head resting on the block. We seem to believe there is nothing especially unusual in our circumstances, nothing that requires us to take action. Life goes on as it always did. Like the man under the blade, we could choose to alter our fate. We will not. We believe, as perhaps the man under the blade believes, that our situation isn't that bad; we'll be able to get through this, just as we always have. We forget all those who have gone before us, all those who have died bloody and painful deaths. But, we may tell ourselves, we are different from all those others. Their fate will not be ours, because we are special and unique. We forget that all the earlier victims thought the same.

Perhaps it is the case that the man with his head resting on the block isn't very intelligent. It is possible he doesn't understand that the rope holds the blade back, and that when the rope breaks, the blade will descend and cut through his flesh. At this moment in history, it is indisputably the case that Americans generally, and the political class and most of those who write about politics (including almost all bloggers), are not very intelligent. They appear to understand almost nothing about political principles, or how they operate. Gathering dangers hold no reality for such people. They will understand the guillotine's purpose only when the blade first touches their necks, and the blood finally gushes out. Yes, they will certainly comprehend the danger then, when all possibilities for action have been destroyed.

The man in my story has only one blade suspended above him; we have at least four blades hanging over us, any one of which could be fatal.

The first blade, probably the most dangerous one, is the Military Commissions Act. What is it that people fail to understand about this abomination? I know that I and others have explained its immense dangers and its fatal implications numerous times; perhaps we haven't explained it very well. But I don't know how to say it any more plainly than this:

There is no question that the Military Commissions Act, given the language it now contains, grants -- in principle -- full dictatorial powers to the executive. As I explained in the earlier essay, the executive and certain entities it controls can designate anyone, including any American citizen, as an "unlawful enemy combatant." That person can then be imprisoned for the rest of his life, with no recourse whatsoever. Period.

...

The critical point is what, in principle, the grant of power includes. As noted, the grant is absolute: it includes everything. As I have pointed out, the determination of the Bush administration to achieve absolute power has been indisputably clear since shortly after 9/11. And this is hardly the first time that I and others have noted that the mechanisms for a complete dictatorship have now been put in place.

...

With proper preparation, and with the requisite understanding that freedom itself was imperiled, the Democrats could have achieved these aims. All of us would be forever in their debt. Surely liberty itself is worth such a battle, isn't it? But the Democrats did none of these things, so the bill passed. Thus, they share in the guilt and responsibility. The guilt and responsibility that accrues to the Democrats is not as great as that of the Republicans, but it is surely great enough. And when your freedom, and that of your family and friends, and that of every single one of us, is destroyed in this manner, how do you even go about measuring degrees of guilt? How do you say this failure is worse than that one? The bill passed. They all failed, Republicans and Democrats alike. In principle, torture was enshrined and liberty was destroyed.

...

Some argue that the Supreme Court will find the act, or at least certain key provisions, unconstitutional. That, too, is a hope, but I myself am far from certain that the Court will rule in such a manner. In any event, we do not know what the ultimate outcome will be as far as the judicial system is concerned.

So we are confronted with one stark certainty, opposed by fragile and uncertain future hopes. We know the Military Commissions Act destroys liberty at its very foundation. We do not know if this fatal injury will ever be ameliorated. The Act should have been stalled at the very least. It was not.

Destroying the very basis of liberty is not an event that occurs every day. Mark the date. Historians may well have cause to note it.

The Democrats have proposed the "Restoring the Constitution Act," although its passage hardly appears to be a matter of great urgency to them. If they do not view the destruction of the foundation of liberty as a genuine emergency requiring almost instantaneous action, what would constitute an emergency? Beyond this, proposing new legislation to "fix" the original bill is precisely the wrong way to fight this battle, as I explained in "America, Now Without the Revolution":

If we genuinely seek to walk the long road back to a constitutional republic, the Act must be repealed. It must be wiped from the books completely. Instead, the Democrats propose to enact another bill, "correcting" the errors in the first. Inevitably, this will lead to endless debates, in Congress, in the courts and everywhere else, about how the two bills should be construed in relation to each other. These debates and confrontations will go on for years -- and all the while, the Military Commissions Act will remain the law of the land, a law that destroys the very concept of law in terms of what it had once meant.

You do not "fix" evils of this kind. You obliterate them as required. It is required here. At long last, let the Democrats understand the nature of this battle, as I discussed it in the earlier essay. Let them educate themselves, other members of Congress, and the American public. Let them attempt to mobilize Americans to demand that the Act be repealed, on a scale and in a manner that cannot be ignored. All our political leaders endlessly praise those who give their lives in defense of liberty, as they should when it is true. (It is not true in Iraq.) If they are sincere in that praise to any degree at all, can't they fight a legislative battle to restore the basis of liberty? They are being asked to take up only intellectual arms. For God's sake, they can do it sitting down the entire time.

But, you say, Bush will veto legislation repealing the Military Commissions Act. I initially note that Bush is equally likely to veto any attempt to "fix" that Act. But if the Democrats waged the necessary campaign and enlisted a significant part of the American public on their side, then let him. He will stand alone, revealed as the enemy of liberty and civilization that he is.

But here is where stupidity enters the picture. Just as the man does not grasp the operation of the guillotine or the fact that, if he does not move, the blade will kill him, our political class (and most writers and bloggers) appear not to understand the profound dangers of the Military Commissions Act because of only one fact: its full powers have not yet been implemented. In an earlier essay, I quoted Jacob Hornberger on this point. Hornberger deconstructs two common objections to the statement of fact that the Executive now possesses full dictatorial powers. With regard to the second objection, he writes:

"Well, then, where are the mass round-ups, and where are the concentration camps?"

Again, people who ask that type of question are missing the point. The point is not whether Bush is exercising his omnipotent, dictatorial power to the maximum extent. It's whether he now possesses omnipotent, dictatorial power, power that can be exercised whenever circumstances dictate it — for example, during another major terrorist attack on American soil, when Americans become overly frightened again.

I went on to note:

I've made this point repeatedly over the last several years, and it is only a measure of the remarkably primitive quality of our national conversation that so many Americans seem incapable of grasping it.

To put the point the other way, which will hopefully penetrate the wall of resistance erected by so many people: the only reason you aren't in a concentration camp right now is because Bush hasn't decided to send you to one -- yet. But he claims he has the power to do so -- and there are almost no voices of any prominence to dispute the contention. What is even worse than the loss of liberty is the fact that most Americans aren't even aware that the loss has occurred. If there are any national leaders who understand these issues and have the courage to fight for our freedom here at home, they ought to realize that the battle must be waged now. Given the hysteria that followed 9/11 -- and the hysteria that would certainly follow another terrorist attack in the U.S. of the same or even greater magnitude -- protesting against round-ups at that point would be entirely futile, and would come far too late.

Hornberger's comments and mine on this issue were written before passage of the Military Commissions Act. Bush had asserted these dictatorial powers earlier and utilized them, but only very selectively. The Military Commissions Act codified those powers, and made dictatorship and torture the law of the land.

But to watch the actions of our political class and to read most political writers, none of this requires urgent action. The guillotine has no reality for us; it will become solid only when we feel the touch of the blade. You may be certain of one fact: when powers of this kind are granted to political leaders, men and women prepared to use them in full will come along sooner or later, probably sooner in our case and almost certainly after another major terrorist attack within our own shores The round-ups will come, as will the concentration camps, as will comprehensive censorship. The executions without trial will come, as well. The torture is already here, and has been for some time.

The second blade is related to the first one; it could be fatal on its own, and it would certainly be fatal in conjunction with the Miitary Commissions Act. I will let one of the rare writers who grasps these dangers consistently, whether they are proposed and supported by Republicans or Democrats, explain it. In a new article, Jim Bovard writes:

The Defense Authorization Act of 2006, passed on Sept. 30, empowers President George W. Bush to impose martial law in the event of a terrorist “incident,” if he or other federal officials perceive a shortfall of "public order," or even in response to antiwar protests that get unruly as a result of government provocations.

...

It only took a few paragraphs in a $500 billion, 591-page bill to raze one of the most important limits on federal power. Congress passed the Insurrection Act in 1807 to severely restrict the president’s ability to deploy the military within the United States. The Posse Comitatus Act of 1878 tightened these restrictions, imposing a two-year prison sentence on anyone who used the military within the U.S. without the express permission of Congress. But there is a loophole: Posse Comitatus is waived if the president invokes the Insurrection Act.

Section 1076 of the Defense Authorization Act of 2006 changed the name of the key provision in the statute book from "Insurrection Act" to "Enforcement of the Laws to Restore Public Order Act." The Insurrection Act of 1807 stated that the president could deploy troops within the United States only “to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy.” The new law expands the list to include "natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition"—and such "condition" is not defined or limited.

These new pretexts are even more expansive than they appear. FEMA proclaims the equivalent of a natural disaster when bad snowstorms occur, and Congress routinely proclaims a natural disaster (and awards more farm subsidies) when there is a shortfall of rain in states with upcoming elections. A terrorist "incident" could be something as stupid as the flashing toys scattered around Boston last fall.

The new law also empowers the president to commandeer the National Guard of one state to send to another state for up to 365 days.

...

The story of how Section 1076 became law vivifies how expanding government power is almost always the correct answer in Washington. Some people have claimed the provision was slipped into the bill in the middle of the night. In reality, the administration clearly signaled its intent and almost no one in the media or Congress tried to stop it.

...

Section 1076 was supported by both conservatives and liberals. Sen. Carl Levin (D-Mich.), the ranking Democratic member on the Senate Armed Services Committee, co-wrote the provision along with committee chairman Sen. John Warner (R-Va.). Sen. Ted Kennedy openly endorsed it, and Rep. Duncan Hunter (R-Calif.), then-chairman of the House Armed Services Committee, was an avid proponent.

...

This expansion of presidential prerogative illustrates how every federal failure redounds to the benefit of leviathan. FEMA was greatly expanded during the Clinton years for crises like the New Orleans flood. It, along with local and state agencies, floundered. Yet the federal belly flop on the Gulf Coast somehow anointed the president to send in troops where he sees fit.

"Martial law" is a euphemism for military dictatorship. When foreign democracies are overthrown and a junta establishes martial law, Americans usually recognize that a fundamental change has occurred. Perhaps some conservatives believe that the only change when martial law is declared is that people are no longer read their Miranda rights when they are locked away. "Martial law" means obey soldiers’ commands or be shot.

...

Some will consider concern about Bush or future presidents exploiting martial law to be alarmist. This is the same reflex many people have had to each administration proposal or power grab from the Patriot Act in October 2001 to the president’s enemy-combatant decree in November 2001 to the setting up the Guantanamo prison in early 2002 to the doctrine of preemptive war. The administration has perennially denied that its new powers pose any threat even after the evidence of abuses—illegal wiretapping, torture, a global network of secret prisons, Iraq in ruins—becomes overwhelming. If the administration does not hesitate to trample the First Amendment with "free speech zones," why expect it to be diffident about powers that could stifle protests en masse?

Note the crucial dynamic identified by Bovard, one I have noted on many occasions: the government is granted massive powers "for our own good," and to "protect us." An emergency arises, and the government abjectly fails to protect us. The failure is used to argue that the problem is that the government didn't have enough power, so it is granted still more expansive powers. Then the government fails again, at which point it is given still further powers. This has been the pattern in the United States since the late nineteenth century, as it has been the pattern in many other countries in the past. At every step, almost all politicians and writers cheer as the leviathan state grows, and as individual liberty is destroyed. The number of times this pattern can be successfully repeated depends upon how hungry for power the political class is, and how ignorant (or stupid, if you will) the public is. Our political class has a boundless hunger for power which will remain unsatisfied until its power is absolute, and the American public adamantly refuses to learn a single damned thing. Our road to Hell is open and unobstructed.

The reaction to the first two blades on the part of politicians and most political writers is also the same: there is next to response at all. As Bovard notes, the president can declare martial law because of "natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition" -- which means he can declare martial law whenever he wants. Since we have a press that primarily acts as a handmaiden to the powerful and which, with very rare exceptions, transmits government propaganda to a degree that effectively makes it another branch of government, who would challenge the president's assertion of such powers? And we have seen the public's ready acceptance of grievous restrictions of freedom in the hysteria following 9/11, and that acceptance continues today. When is the last time you heard of anyone seriously protesting the government's idiotic search protocols at an airport, or objecting to any of the much more serious incursions into what had once properly been regarded as a citizen's zone of privacy? We have become a nation of whining, sniveling cowards. When we are sufficiently scared, and when the government tells us it acts only to "make us safe," we will do whatever we are ordered to do. If we ask any questions at all, it will only be much later, when the liberties we have so blithely surrendered cannot be recovered.

That the president can declare martial law whenever he wishes, on a whim or to finally realize his dreams of absolute power (and I know this may shock you, but such dreams do not belong only to Republicans), causes virtually no one to think that action to prevent such a catastrophe must be taken -- and that it must be taken now. Many Americans don't even know this blade is there; most of those who do see it appear not to care at all that it exists. When the troops appear in your city and on your street, and when some of your neighbors and friends begin to disappear (remember the first blade), why, then you might care, when there is nothing whatsoever to be done about it, lest you too be spirited away in the dead of night.

The third and fourth blades are forged in the realm of foreign affairs, but their effects extend to the United States on the domestic front. Stupidity puts in another appearance here. Most Americans, including our governing class and our commentators, cannot grasp the operation of political principles when they are confined here at home. When connections must be made between events overseas and domestic politics, our brains are entirely incapable of making the integrations. In addition, our narcissism is almost perfect: when death and chaos are visited upon peoples abroad -- peoples who are almost without exception darker than we are (or at least, darker than most of our leaders are), poor, and largely defenseless -- we barely notice. It's not as if Americans were being killed; even then, as the death toll of Americans in Iraq continues to rise, we see no reason to bring matters to a quick conclusion. As long as it's over there, what do we care?

Every prominent politician, Democrat and Republican, agrees that we have the "right" to attack Iran if Iran does not conduct itself in accordance with our demands. The source of this "right" has never been explained, since it cannot be explained. This is an axiomatic truth for our governing class, and it applies to every country in the world that cannot respond to a U.S. attack in a serious, large-scale manner. Note Hillary Clinton's comments only a couple of days ago about Iran, and our "right" to take "offensive military action." I have explained in some detail why an attack on Iran in the current circumstances and in the foreseeable future would be a monstrous crime; see "Morality, Humanity and Civilization: 'All that remains...are memories.'" But keep the possible consequences in mind: many thousands dead, and millions dead if we were to use even "tactical" nuclear weapons; spreading chaos across the Middle East and very likely beyond; possible economic calamity, which could lead to a significant collapse of the U.S. economy, as well as the economies of many other nations, and on and on. The consequences would spread around the globe, and would be felt for decades to come.

There is still a further result, beyond the fact that an attack on Iran would make us the equivalent of Nazi Germany and its attack on Poland. I discussed it in the second part of my "Dispatch from Germany" series, where I again quoted Jim Bovard:

Attacking Iran will put American civilians in the terrorist crosshairs, with little or no federal Kevlar to protect them. The key question is not whether terrorists will attack but how the American people will likely respond and how politicians could exploit the situation.

There is no reason to expect the American people to be less docile than they were after 9/11. The percentage of Americans who trusted the government to do the right thing most of the time doubled in the week after 9/11. It became fashionable to accuse critics of Bush administration policies of being traitors or terrorist sympathizers. ...

The Bush administration has a record of exploiting terrorist attacks to seize nearly boundless power. After the 9/11 attacks, the Bush administration effectively temporarily suspended habeas corpus, railroaded the Patriot Act through Congress, authorized warrantless domestic wiretaps, and nullified restrictions on torture by the CIA and U.S. Military. The Bush administration now claims that the Authorization to Use Military Force resolution passed by Congress in September 2001 raised the president’s power above the Bill of Rights.

If there are new terror attacks at home, how much more latent presidential power will administration lawyers claim to discover within the penumbra of the Constitution? How broad would the roundup of suspects be? How many years would it be until Americans learned of how much power the government had seized? Is there any reason to expect that a series of attacks would not quickly result in attempts to proclaim de facto martial law?

...

If Bush does bomb Iran, the chain reaction could wreck American democracy. The Bush administration shows no signs of developing either an allergy to power or an addiction to truth. The American republic cannot afford to permit a president to remain above the law and the Constitution indefinitely. Anything that raises the odds of a terror attack reduces the odds of reining in the government.

So you see how the third blade, an attack on Iran, ties into the second blade, the president's unlimited ability to impose martial law, which ties into the first blade, the Executive's ability to declare anyone an enemy of the state on any basis or no basis at all, and then to imprison and torture them for the rest of their lives.

I have suggested a number of actions that might be taken in an attempt to prevent an attack on Iran. A few people have noted that post, and some have followed through on some of those suggestions individually. But no one and no organization in this country is trying to motivate a sufficient number of people to take action on the scale required. Given the frequency with which our politicians announce that the possibility of a nuclear-armed Iran is too great a danger to "civilization" to be "tolerated," most of us have to know this blade is there. We see it, and we don't care. The blade hangs over our heads, and over the entire world. We will not move.

If we are fortunate enough to make it through the remainder of Bush's term without a U.S. attack on Iran, it will not be because of anything anyone has done to prevent it. No one has done anything to prevent it. It will simply be because we were lucky. But as the remarks from Hillary Clinton and every other leading Democrat make clear, the danger will not pass away with Bush's exit from the national stage. As long as our governing class and the foreign policy establishment remain committed to American global hegemony as our foundational foreign policy goal (see "Dominion Over the World"), I consider it certain that the U.S. will attack Iran at some point, if not during this administration, then probably during the next one.

The fourth blade is, of course, the unending occupation of Iraq. As I explained yesterday, it will be unending, even if the number of American troops is reduced to 50,000 or 70,000 in the next few years. We will be there for decades into the future; no prominent politician, Democrat or Republican, opposes that plan, which was the plan from the outset. As a number of knowledgeable people predicted prior to the Iraq invasion, Iran has been the primary victor in this imperial disaster. The episode with the British sailors recently demonstrated, as have any number of other incidents, that the longer we remain in Iraq, the greater the likelihood that some incident, real or manufactured, will lead to open conflict with Iran, and to the attack on Iran that every leading politician seems to long for. Our ruling elites are determined to effect "regime change" in Iran in any case, but a border incident or one of some other kind might hasten the schedule, and make a U.S. attack easier to "sell" to a gullible American public.

So we see how the fourth blade connects to the third, and how all the blades interconnect and multiply the dangers. We have already destroyed Iraq, and we may yet destroy Iran and much of the Middle East. We may cause an international economic collapse, or severe economic dislocation at a minimum. We may see the final end of liberty here at home, and the installation of a dictatorship via a declaration of martial law.

And almost no one speaks of the incomprehensible catastrophes that lie in wait. Almost no one takes action to prevent even one of them. Our lives proceed as if nothing at all unusual is transpiring in our world, either abroad or at home. Occasionally, a few people shout warnings. They are almost entirely ignored.

The blade is suspended above us. With every moment that passes, the rope that holds it back frays and weakens still more.

Death hangs in the air.

We will not move.

posted by Arthur Silber at 10:54 AM

Orwell at Guantanamo

By Eugene Robinson

Tuesday, April 3, 2007; A23

Here's what the Bush administration has done to the values, traditions and honor of the United States of America: An accused terrorist claims he confessed to heinous crimes so that agents of the U.S. government would stop torturing him, and no one is shocked or even surprised. There's reason to believe, in fact, that what the suspect says about torture is probably true.

There's also reason to doubt that the suspect -- Abd al-Rahim al-Nashiri, held in U.S. custody without charges for more than four years -- is the Zelig-like innocent bystander he claims to be. But we can't be sure, because George W. Bush disgraced himself and his country by ordering extrajudicial kidnappings of suspects in the war on terror, indefinite secret detention and interrogation by "alternative" methods that the civilized world calls torture.

On Friday, the Defense Department released a heavily redacted transcript of a March 14 hearing, held at Guantanamo Bay, Cuba, to determine whether Nashiri should be classified as an "enemy combatant." I apologize for resorting to cliche, but the only way to describe this amazing, infuriating document is to call it Orwellian. Reading it gives you the chills.

None of the members of the military tribunal sitting in judgment is named. The officer serving as Nashiri's "personal representative" likewise is not named. Unclassified evidence is presented in summary -- an unnamed "recorder" reads a document quoting statements by witnesses that attest to Nashiri's involvement in the 1998 bombings of U.S. embassies in Tanzania and Kenya, in which 224 people died, and the 2000 bombing of the USS Cole, which killed 17 U.S. sailors. The witnesses are not present, so, of course, there is no opportunity to challenge their statements.

Nashiri's representative, a lieutenant commander in the Navy, presents a stunning response: "The Detainee states that he was tortured into confession and once he made a confession his captors were happy and they stopped torturing him. Also, the Detainee states that he made up stories during the torture in order to get it to stop."

The response states that Nashiri confessed under torture not only to the East Africa and USS Cole bombings but also to the 2002 bombing of the French oil tanker Limburg, some bombings and rocket attacks in Saudi Arabia, a plan to bomb American ships in the Persian Gulf, and "a plan to hijack a plane and crash it into a ship." Oh, and he also told investigators that Osama bin Laden had acquired a nuclear bomb.

"I just said those things to make the people happy," Nashiri tells the tribunal. "They were very happy when I told them those things."

One gets the sense that he would have confessed to the murders of Tupac Shakur and Biggie Smalls if that would have made his interrogators happy.

Nashiri denies having anything to do with terrorism, although he acknowledges taking money from bin Laden. He paints himself -- unconvincingly, in my view -- as a simple merchant who makes poor choices in friends and has a habit of being in the wrong place at the wrong time.

The Navy captain serving as president of the tribunal gets around to asking Nashiri about the alleged torture. Who did it? They were Americans, Nashiri says. When did it happen? "From the time I was arrested five years ago, they have been torturing me."

Only George Orwell could have written what comes next in the transcript. The following is what we are allowed to know of Nashiri's response when asked how he was tortured:

"What else do I want to say? [REDACTED]. Many things happened. There were doing so many things. What else did they did? [REDACTED]. They do so many things. So so many things. What else did they did? [REDACTED]. After that another method of torture began. [REDACTED]. They used to ask me questions and the investigator after that used to laugh. And, I used to answer the answer that I knew. And, if I didn't reply what I heard, he used to [REDACTED]. So many things happened. I don't in summary, that's basically what happened."

I guess that's how the U.S. government extracts information from detainees: [REDACTED].

The Pentagon told reporters that Nashiri's claims were censored because of "national security concerns" about disclosing where detainees were held and how they were treated. But that would be unnecessary if Nashiri were lying, since no harm could come from disclosing a bunch of made-up stories. The censorship makes sense only if some or all of what Nashiri alleges is true.

But we're not permitted to know what he alleges.

Orwell had it figured out: "Ignorance is Strength."

The Confession Backfired

March 17, 2007

By Paul Craig Roberts

The first confession released by the Bush regime's Military Tribunals – that of Khalid Sheikh Mohammed – has discredited the entire process. Writing in Jurist, Northwestern University law professor Anthony D'Amato likens Mohammed's confession to those that emerged in Stalin's show trials of Bolshevik leaders in the 1930s.

That was my own immediate thought. I remember speaking years ago with Soviet dissident Valdimir Bukovsky about the behavior of Soviet dissidents under torture. He replied that people pressed for names under torture would try to remember the names of war dead and people who had passed away. Those who retained enough of their wits under torture would confess to an unbelievable array of crimes in an effort to alert the public to the falsity of the entire process.

That is what Mohammed did. We know he was tortured, because his response to the obligatory question about his treatment during his years of detention is redacted. We also know that he was tortured, because otherwise there is no point for the US Justice (sic) Dept. memos giving the green light to torture or for the Military Commissions Act, which permits torture and death sentences based on confessions extracted by torture.

Mohammed's confession of crimes and plots is so vast that Katherine Shrader of the Associated Press reports that the Americans who extracted Mohammed's confession do not believe it either. It is exaggerated, say Mohammed's tormentors, and must be taken with a grain of salt.

In other words, the US torture crew, reveling in their success, played into Mohammed's hands. Pride goes before a fall, as the saying goes.

Mohammed's confession admits to 31 planned and actual attacks all over the world, including blowing up the Panama Canal and assassinating presidents Carter and Clinton and the Pope. Having taken responsibility for the whole ball of wax along with everything else that he could imagine, he was the entire show. No other terrorists needed.

Reading responses of BBC listeners to Mohammed's confession reveals that the rest of the world is either laughing at the US government for being so stupid as to think that anyone anywhere would believe the confession or damning the Bush regime for being like the Gestapo and KGB.

Humorists are having a field day with the confession: "'I'm a very dangerous mastermind,' said Mohammed, who confessed to the kidnapping of the Lindbergh baby, the Brink's robbery, St. Valentine's Day Massacre, and the Lincoln and McKinley assassinations. Mohammed also accepted responsibility for spreading hay fever and cold sores around the world and for rained out picnics."

If there was anything remaining of the Bush regime not already discredited, Mohammed's confession removed any reputation left.

The most important part of the Mohammed story is yet to make the headlines. Despite having held and tortured hundreds of detainees for years in Gitmo, and we don't know how many more in secret prisons around the world, the US government has come up with only 14 "high value detainees."

In other words, the government has nothing on 99 percent of the detainees who allegedly are so dangerous and wicked that they must be kept in detention without charges, access to attorneys and contact with families.

And little wonder. The vast majority of detainees, alleged "enemy combatants," are not terrorists captured by the CIA and brave US troops. They are hapless persons who happened to be outside their tribal or home territories and were kidnapped by criminal gangs or warlords who profited greatly at the expense of the naive Americans who offered bounties for "terrorists."

The US government does not care that innocent people have been ensnared, because the US government desperately needs both to prove that there are vast numbers of terrorists and to demonstrate its proficiency in protecting Americans by capturing terrorists. Moreover, the US government needs "dangerous suspects" that it can use to keep Americans in a state of supine fearfulness and as a front behind which to undermine constitutional protections and the Bill of Rights.

The Bush-Cheney Regime succeeded in its evil plot, only to throw it all away by releasing the ridiculous confession by Khalid Sheikh Mohammed.

Will Bush's totalitarian Military Tribunal now execute Mohammed on the basis of his confession extracted by torture, or would this be seen everywhere on earth as nothing but an act of murder?

If Bush can't have Mohammed murdered, the US government will have to shut Mohammed away where he cannot talk and tell his tale. The US government will have to replicate Orwell's memory hole by destroying Mohammed's mind with mind-altering drugs and abuse.

It is to such depths that George Bush and Dick Cheney have lowered America.

Rule of law crippled

Editor's note: I am moving over to post at the other blog(also see new articles below).
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By Bruce Fein
THE WASHINGTON TIMES
Published February 27, 2007

The Great Writ of habeas corpus is to the rule of law what oxygen is to life.

The U.S. Court of Appeals imprudently crippled the writ last week in Lakhdar Boumediene v. Bush (Feb. 20). A divided three-judge panel declared suspected alien enemy combatants held indefinitely at Guantanamo Bay may not question their detentions in federal courts though petitions for writs of habeas corpus under the Military Commissions Act of 2006 (MCA). Writing for a 2-1 majority, Judge Raymond Randolph mistakenly endorsed a cramped interpretation of habeas corpus as though he were addressing a tax exemption in the Internal Revenue Code.

Absolute power corrupts absolutely. Accordingly, the Great Writ prevents the president from disappearing political opponents or the unpopular into dungeons based on his say-so alone, a frightening power that has earmarked despots from time immemorial. The writ enables detainees to require the president to establish the factual and legal foundations for their detentions before an independent judiciary.

The goal is justice, the end of civil society as James Madison explained in the Federalist Papers. The president may be inclined to detain bogus enemy combatants in the war against global terrorism to inflate public fear and to justify executive aggrandizements, for example, spying without judicial or legislative oversight in contravention of the Foreign Intelligence Surveillance Act of 1978. A former commandant and deputy commandant at Guantanamo Bay have averred that most of its detainees do not belong there.

The Great Writ does not threaten to release a single genuine enemy combatant. The burden to defeat the Great Writ is modest: plausible evidence (far short of proof beyond a reasonable doubt) that the detainee was implicated in active hostilities against the United States. In Rasul v. Bush (2004), the Supreme Court held the federal habeas corpus statute extended to aliens at Guantanamo. Two years later, Congress overruled Rasul in the MCA by suspending the Great Writ for alien enemy combatants detained anywhere. Its proponents were unable to cite a single habeas case either before or after Rasul that precipitated the release of an authentic terrorist. Such a case might be hypothesized with a fevered enough imagination. But the law would become "a ass, a idiot," in the words of Charles Dickens' Mr. Bumble, if required to answer jumbo speculations that never happen in the real world.

Article I, section 9, clause 2 of the Constitution (Suspension Clause) declares "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless in Cases of Rebellion or Invasion the public Safety may require it." Judge Randolph tacitly acknowledged in Boumediene that neither habeas exception justified the MCA, i.e., global terrorists have not invaded America. He insisted, however, that the Great Writ has no application to aliens detained outside the sovereignty of the United States; and, that Guantanamo Bay is under the sovereignty of Cuba, albeit subject to a perpetual United States lease.

The latter observation is risible. Fidel Castro has no more access or control over Guantanamo than he does over Washington, D.C., or Des Moines. If Mr. Castro formally abandoned sovereignty over Guantanamo tomorrow, nothing would change.

Judge Randolph maintained that a declaration by the political branches in the MCA that Guantanamo is not part of the United States is conclusive on the courts. But the dimensions of the Great Writ -- which defines what we are as a people -- should not be so easily contracted by semantic jugglery.

Judge Randolph observed that historically the Great Writ in Great Britain was withheld from remote islands, garrisons and dominions. Compliance with a writ from overseas would have been impractical because of time limitations for producing the detainee. But as Chief Justice John Marshall taught in McCulloch v. Maryland (1819), the Constitution was designed to endure for the ages and to be construed accordingly to achieve its purposes. Congress is empowered to create an Air Force, although the Constitution speaks only of armies and navies. The Fourth Amendment protects against indiscriminate government interceptions of e-mails and conversations, although its language speaks only of persons, houses, papers and effects. Similarly, the Great Writ should apply to suspected alien enemy combatants detained abroad unless compliance would be impractical or unworkable.

No civilized Constitution risks injustice for the sake of injustice, aside from the folly of creating poster children to boost al Qaeda's recruitments. The Supreme Court should grant review of Boumediene and reverse the appeals court.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.

Act Now to Restore Due Process

Urge Your Senators to Fix the Military Commissions Act

Just before the last election, Congress passed the Military Commissions Act, which gives the President the power to decide by himself who is and who is not an enemy of our country, and to eliminate habeas corpus and due process rights for detainees. As a result, people lost the Constitution’s protections against being imprisoned unlawfully.

The Military Commissions Act takes away the fundamental due process right of habeas corpus, which is protected by the Constitution. Without the habeas corpus protection against unlawful imprisonment, people are being held for years without ever being charged.

Take action below to restore habeas corpus protections and due process for detainees in federal custody at Guantanamo and around the world.

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Strange Bedfellows: Torture & Democracy

January 18, 2007

by Sam Kornell

Photo by Ron Haviv/VII

In April 2004, vivid photographs of American military and intelligence personnel torturing Iraqi detainees at the Abu Ghraib prison facility were leaked to the press. Instantly iconic, the images became political rallying flags for terrorist recruitment throughout the Arab world, and within the United States they inspired shock and disgust.

Yet for all their brutal immediacy — or perhaps because of it — the Abu Ghraib photographs occupied only an isolated place in the American discussion of torture. Today, despite documented evidence of other American-ordered torture, Abu Ghraib is not just the signal scandal of the Bush administration’s extraordinary interrogation practices, but the only scandal. Journalist Mark Danner, who wrote what is now — and will likely remain — the authoritative account of Abu Ghraib in his book Torture and Truth: America, Abu Ghraib, and the War on Terror, described this curious fact in a recent essay:

After a momentary outcry, and a dozen or more investigations — none of which confronted the responsibility of those who made the policies and those who gave the orders — the question of torture receded, metamorphosing from shocking revelation to ongoing story. Newspaper reporters went on investigating Abu Ghraib, Guantánamo, Bagram; published a proliferating series of horrific accounts. Torture endured but it had slipped from our world of images. Torture had survived its exposure.

Beginning with a lecture by Danner this evening, UCSB will offer a six-month series of symposia and lectures meant to grapple with the questions that torture and indefinite detention pose for the United States. Open to the public, the series will give us a chance to reflect on the exceptional liberty the Bush administration has claimed in its commission to fight the war on terror. And it will give us the opportunity to examine whether the threat posed by Islamic terrorism warrants “work[ing] through the dark side,” as Vice President Dick Cheney put it five years ago when explaining on national television how the administration planned to stop terrorist acts.

Underlying the series, Torture and the Future: Perspectives from the Humanities, will be the extensive documentary record, amassed by journalists, human rights agencies, and government investigations, of what, apparently, Cheney’s “dark side” has entailed. That record is far from complete, but it reveals that since September 2001, the United States government has held thousands of men and boys rounded up during the war on terror, without criminal charge and without bail, at various prisons, military bases, and detention camps around the world. The detainees have not been allowed to make telephone calls, write letters, or contact embassies, have not, except in a few cases, been furnished with legal representation, and have in many cases been subjected to methods of interrogation that appear to legally constitute systematic torture.

Initiated by UCSB Professor Elisabeth Weber, the series will consider the foundational ideals embedded in the U.S. Constitution and Bill of Rights, and how these ideals have weathered other perceived national security crises. And it will seek to imagine how history will judge the Bush administration’s extraordinary measures in the war on terror. And, indeed, how we should judge them now.

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Fighting Ideology with Ideology

Mark Danner Describes the Advent of Torture as U.S. Policy

A longtime staff writer at the New Yorker, Mark Danner is the recipient of numerous journalism awards. He has reported on war from South America, the Balkans, and the Middle East, and for the last three years has written in the New York Review of Books a number of widely read and influential essays on torture, the Bush administration, the war on terror, and the Iraq War (these essays have been compiled into two books — The Secret Way to War, about the Downing Street memo, and Torture and Truth). Our telephone interview with Danner has been edited to fit limited space. Danner will appear at UCSB’s Campbell Hall at 8 p.m. this evening. Admission is free to the public.

You’ve used a striking sentence in a number of your essays, something to the effect of: “The U.S. government, since 9/11, has been transformed from a country that officially prohibits and condemns torture to one that practices it.” What does that mean? What it means is that after the attacks of 9/11, the highest officials of the Bush administration decided one of the things that had to change — in the changed world of the war on terror — was the traditional American approach to interrogation. There were various public acknowledgments of this, beginning with the decision not to extend Geneva Convention protections to prisoners taken in Afghanistan. Another artifact of it is the category “unlawful enemy combatants” that was created.

What followed from these decisions were changes in what was permitted in interrogations, changes that led to, among other things, some of the abuses that were very well publicized in what came to be known as the Abu Ghraib scandal. These changes included the widespread use of waterboarding — which is the use of water to create the impression that a prisoner is drowning — the use of temperature manipulation, striking the prisoner, stress positions, sensory deprivation, and many other techniques that up to then had been prohibited, in particular by the U.S. military.

The Bush administration has responded to critics of its interrogation and detention practices by arguing that the war on terror is extraordinary, so that with torture, for example, traditional codes of conduct don’t apply. Well, I think members of the administration do believe that. But that isn’t in fact the argument they’ve made publicly. The argument they’ve made publicly is they don’t torture, and that the photographs from Abu Ghraib, for example, were of the actions of a few bad apples and don’t represent what is being done in interrogations of prisoners generally. 

But they have argued that legally the president isn’t subject to traditional interpretations of international and American law on torture and due process. You’re quite right. From the beginning, members of the administration have looked at laws that seem rather forthright — the Geneva Convention Against Torture is one of them — and used lawyers to extract from those documents an almost absurdly, almost comically narrow reading of what they mean.

The Department of Justice documents really made the argument in a couple ways. The first was essentially that Congress cannot limit the president’s powers related to war. The second was somewhat contradictory because they said, “Okay, we’re committed not to torture. Fine. What is torture?” They essentially redefined it to say that for something to be torture it must cause pain equivalent to major organ failure or death. So basically they were saying, “Well, on the one hand, Congress cannot limit the president’s war powers, which encompass interrogations. But on the other hand, the law prohibits torture, and we’re not doing torture because torture actually has to do with activities that cause very, very large degrees of pain.” But of course you can do a lot to somebody that almost anyone would acknowledge is torture without necessarily going beyond the level of pain that’s caused by major organ failure.

The first part of this argument is strikingly broad. The implication seems to be essentially that the president is constitutionally unconstrained by the law. These people … believe in what they call a unitary executive. Essentially, it means there are certain powers on which the judiciary and Congress cannot tread. And one area where that is the case is in the president’s war-making powers. John Yoo, who was one of the central architects of the administration’s legal case … was at a public event recently and someone said, “So you’re saying that if the president wanted to order a child tortured in front of his parents in order to coerce his parents to give up information, there’s nothing Congress and the Judiciary can do about it?” He responded: “No, there’s nothing they can do about it.” He really believes the president is unchallengeable in these areas. And, you know, I don’t. And a lot of other people don’t. Most people don’t.

In June 2004, the Supreme Court decided Hamdan v. Rumsfeld, which was a challenge to the administration’s definition of “enemy combatants” and its withholding of various prisoners’ rights. At the time, many observers took the decision to mean, if not necessarily the demise of Guantánamo, at least the reinstatement to some degree of due process rights. But now we have the Military Commissions Act (MCA), which was legislated by Congress in September 2006. How is the MCA related to Hamdan v. Rumsfeld? The Hamdan v. Rumsfeld decision essentially said, your assumption that you can say the Geneva Conventions don’t apply [to prisoners captured in the war on terror] is wrong. The Geneva Conventions do apply. Period. The decision presented the administration with a very difficult problem, a problem having to do with the military commissions [proposed to try the prisoners], and a problem having to do with the consequences for people in the administration who acted in good faith in developing and applying this alternative set of procedures. If the Geneva Conventions do apply, those people may be subject to some kind of prosecution under the War Crimes Act.

The MCA was a response to all that, with the intent to nullify the effect of Hamdan. … It basically portrayed the decision as a usurping of the powers of the president and a usurping of the powers of Congress. There were these very highly publicized negotiations [with senators John McCain, Lindsey Graham, and John Warner], the result of which was really not terribly significant, frankly. That is, the law had in it a nod to the Geneva Conventions, but then let the president decide whether something was a violation of the Geneva Conventions. It put the power in his hands.

Will the MCA stand up under the new Congress? Senator Patrick Leahy of Vermont, who is the incoming chairman of the Judiciary Committee, has declared his intention to revisit that law. My impression is there is a general recognition that this law was a disgrace. For reasons including not only the ones we’ve talked about, but also the stripping of habeas corpus, the placing in the president’s hands the power to declare virtually anyone an unlawful enemy combatant, the removal from the federal courts of oversight — not just habeas but other kinds of oversight … you can go down a list. I think there’s a general recognition this law is one of the great disgraces of American legal history.

Having said that, it’s very difficult to calculate what the politics are going to be. The reason the MCA became law to begin with is out of Democrats’ fear the president would use their opposition to the law as a way to brand them as soft on the war on terror going into the November midterms. So most of the Democrats hung back. Most of them voted against it, but they didn’t make an issue of it. They didn’t filibuster it, for example, as they could have done and should have done, I think.

The fact that it was politically expedient for Democrats not to filibuster a bill like the MCA raises an interesting issue about how torture has caught the American imagination — or how it hasn’t. And why it hasn’t. That’s a critical issue, and it’s something Americans have to come to grips with. It’s the question: Why is it that the president can get political mileage out of supporting a bill that essentially legalizes torture?

There are a lot of pop-culture markers that [help explain] this. One I often refer to is the Fox television program 24, which is enormously popular. I think it’s in the top 10 programs watched. And it is a program that has as a very important part of its narrative — it’s really in almost every episode — an episode of torture, usually committed by the hero. Torture in it is used essentially to signify the determination of the government to protect the population. I think anybody who wants to talk about torture has to come to grips with the fact that, you know, here we are. Americans seem to watch this show and approve of this behavior.

I think in some ways it is a response to fear. There is the notion that this kind of untrammeled government power is what is needed to protect people, and that is something that is in some way reassuring to people.

What if someone has information that can only be extracted by torture and that information will save lives? Would one be morally remiss not to torture that person? That is a prevalent argument — the so-called ticking bomb scenario, which is: What if you capture somebody, there’s a nuclear bomb in New York City, he knows where it is, you know he knows, so wouldn’t it be morally reprehensible not to torture him if that’s what’s necessary? You hear that a lot. But it’s a fraud, that argument, because that’s not how torture is used. You should always wonder when you’re looking at a case that’s actually happening — and torture is a case that’s actually happening — when the argument that’s always made about it is a hypothetical one.

Torture is used on suspects who are suspected to have some kind of knowledge, but it’s very unusual to actually know what knowledge they have. For example: You pick up somebody, you think they’re part of the Al Qaeda hierarchy, you thereby assume they know things, and you interrogate them using these [harsh] techniques. And what they usually give you is not plans for attacks — although that has happened, not immediate [plans] but eventual [plans] — but what they usually give you is names of other people. So one of the problems with this whole ticking bomb argument is that it’s quite unreal. It doesn’t have much relation to what’s actually happening.

How has American torture affected the political component of the war on terror? One of the ironies of what’s happened since 9/11 is the Bush administration was so keen to declare this war [on terror] an utterly new phenomenon with new rules, but in making many of these new rules, it ignored the damage these activities would have on the U.S. reputation, and the way they would undermine the president’s chosen response, which is, as he puts it again and again: You can’t fight an ideology without an ideology. President Bush believes only democracy can fight the overarching cause of jihadism that motivates the enemy in the war on terror. In fact, the use of torture really constitutes a kind of affirmation of the whole philosophy of jihadism because it shows the United States as the oppressor — as the oppressor of Muslims, as the ruthless underminer of Muslim dignity and Arab manhood — and all the other things embodied, for example, in that famous photograph from Abu Ghraib of Lynndie England holding the leash tied to the throat of the naked prisoner lying on the floor, his face contorted in agony. So there’s not only what it does to the tortured and the torturer, it’s what it does to the underlying cause of putting the U.S. forward as the democratic solution, rather than as the oppressor, which is the characterization the jihadists depend on.

4•1•1
Mark Danner speaks on Into the Light of Day: Torture, Human Rights, and the War on Terror. Tonight, Thursday, January 18 at 8 p.m. UCSB’s Campbell Hall, free.

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How the Symposia on Torture Began

It was the Military Commissions Act that finally spurred Elisabeth Weber to take action. “The [MCA] gave President Bush the right to define torture,” Weber said recently. “Torture now means something different in almost every country in the world than it does in the United States.” Weber is a professor of comparative German literature at UCSB. The object of her anger is a congressional bill advocated by the Bush administration and signed into law in mid October. Introduced by Republican members of Congress, the Military Commissions Act allows the president to identify, imprison, and interrogate anyone he feels threatens the United States, without traditional court review. And it allows him to decide the meaning and application of the Geneva Conventions, which stipulate laws and protocol for international conflicts, including the treatment and detention of prisoners.

“The Military Commissions Act and the ‘torture memos’ [memos prepared by the Department of Justice to legally define the Bush administration’s approach to interrogation] send a message to the whole society that it is okay to torture. I felt I had to say something to my students.” Most of Weber’s students “didn’t have a clue” what the Military Commissions Act was. But once they understood, she said, “they were horrified.”

To broaden the discussion, Weber and 12 of her colleagues at UCSB decided to organize a broad inquiry into U.S. government torture, which they called Torture and the Future: Perspectives from the Humanities. The series will last through June. So far, eight events are planned, as well as a film series; to view the events and learn more about the series, visit www.complit.ucsb.edu/projects/tortureandthefuture/index.html.

By Sam Kornell | January 18, 2007 | 0 Comments | 0 TrackBacks

Will the Democrats Save our Civil Liberties?

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December 20, 2006

Anthony Gregory

Many commentators have called the Democratic victory in the November elections a referendum on the Bush administration’s policy in Iraq. They have also noted that the voting public is concerned by the attacks on civil liberties so loyally defended by nearly all the Republican lawmakers in fighting the war on terror. The Democrats, presumably, now have a mandate to reverse current trends in domestic as well as foreign anti-terror policy.

There is little reason for optimism that the Democrats will follow through on this supposed mandate, and deliver us from the evil of the growing police state of warrantless searches, indefinite detentions, sweeping surveillance, and other attacks on civil liberties.

For one thing, Democrats have supported the worst of Bush’s policies. Only one Democrat in the Senate, Russ Feingold, opposed the Patriot Act when it was first proposed. Just this year, Democratic members of the House overwhelmingly, and Democratic Senators unanimously, approved the Defense Authorization Act for 2007, which contains frightening modifications of the Insurrection Act and new exceptions to Posse Comitatus, empowering the president to summon the National Guard, without gubernatorial authority, and to enforce martial law during “emergencies” ranging from natural disasters to health crises. More than 25 percent of Senate Democrats even voted for the Military Commissions Act, marking the first time since the Civil War that the federal government suspended Habeas Corpus.

Although the Democrats will sometimes attack an egregious Bush proposal, they have not used the power of the purse or the filibuster to do anything about it. Nor should we assume they will be so mindful of civil liberties now that they are in the Congressional majority and have their eyes set on the presidency. Power corrupts, and Democrats in power have long shown a willingness to shred the Bill of Rights.

Woodrow Wilson arrested hundreds of antiwar Americans, including a presidential candidate, for protesting the draft; deported anarchists to Communist Russia; and imprisoned a movie producer for depicting the British as an American enemy in his film about the American Revolution. (Under the 1918 Sedition Act, it was a federal crime to criticize a U.S. ally, which Britain was.) Franklin Roosevelt oversaw an Office of Censorship, made plans to detain hundreds of peaceful political enemies, imprisoned war opponents, and interned 110,000 innocent Japanese Americans. Lyndon Johnson had the FBI spy on reporters and used the FBI and CIA to wiretap, monitor, and infiltrate the campaign of his presidential rival, Barry Goldwater.

But we don’t need to go back so far to indict the Democrats on civil liberties issues. Under Bill Clinton, the police state grew perhaps as much as it feasibly could during a relative time of peace. According to the ACLU, Clinton expanded stealth surveillance of the citizenry far beyond anything seen under any prior administration. Clinton sought to allow the feds to peek at everyone’s bank account, have a key to all private encryption and e-mail, and censor the Internet. After the Oklahoma City bombing, Clinton signed the draconian Anti-Terrorism and Effective Death Penalty Act of 1996, expanding the authority of secret courts, unleashing the FBI to investigate First Amendment–protected activities, and allowing the INS to deport American citizens.

Under Clinton, there was also the military operation on American soil just outside Waco, Texas, where about 80 American civilians died when a 51-day standoff culminated in a fire breaking out after a federal tank rammed through a religious sect’s home and gassed its women and children with poisonous and flammable CS gas. In this case, an imaginary meth lab was the original rationale to circumvent Posse Comitatus’s prohibitions on military involvement in law enforcement—the drug war, which the Democrats have consistently and enthusiastically upheld, has also been a disaster for civil liberties and the rule of law.

When the Democrats controlled both the presidency and the legislature, as they did during much of Wilson, all of FDR, and all of Johnson, civil liberties suffered greatly. When, under Clinton, they split the government with Republicans, the police state nevertheless grew—meaning neither the GOP nor partisan gridlock is our salvation, either.

If the Democrats want to win points as better guardians of American liberty than the Republicans, they can begin by abolishing huge portions of the war on terror infrastructure—the Patriot Act, the Military Commissions Act, and the new presidential powers over martial law. They should then challenge Bush on the principle of the unitary executive, block funding for warrantless military surveillance of the population, and strip away the Justice Department and military’s power to indefinitely detain people without due process.

The Democrats, however, have had about as shameful a record on all this as the Republicans, even when they were the opposition party. Now that they have a better seat at the table of power, who thinks they’ll do anything to curb the police state they helped so much to build?

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Anthony Gregory
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Anthony Gregory is a Research Analyst at The Independent Institute. He earned his bachelor's degree in American history from the University of California at Berkeley and gave the undergraduate history commencement speech in 2003. In addition to his work with the Independent Institute, he regularly writes for numerous news and commentary web sites, including LewRockwell.com, Future of Freedom Foundation, and the Rational Review.
Full Biography and Recent Publications

Prisoners’ Dilemma

December 18, 2006 Issue
Copyright © 2006 The American Conservative

Indefinite detention of terrorist suspects poses a challenge to America’s most valuable legal traditions.

by Gerald J. Russello

The recently enacted Military Commissions Act and the Supreme Court Hamdi and Hamdan decisions, which tried to limit the suspension of the protections of habeas corpus, have spurred a new series of debates on the somewhat technical legal area of habeas corpus. The Great Writ, as it was known, stands for a very simple principle: power does not trump. A government may wish to detain someone secretly, perhaps indefinitely, and may believe it has good reasons to do so, but in the Anglo-American legal tradition, that is not good enough. As the Supreme Court stated in 1969, the writ is “the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.” The government therefore has to “produce the body for examination,” as the translation of the full Latin tag put it, before a magistrate and justify the reasons for the person’s detention.

The position announced in the MCA and its related statutes may or may not be bad policy for defeating terrorism, but it certainly undermines a key component of free government. Government must in the normal course act in the open and must be held to a standard of reasonableness as to its actions, including being forced to explain why it has decided to detain someone. In the American legal tradition, and more broadly that of the West in general, providing the protections of habeas corpus has been a mark of civilizational achievement and we rightly consider those countries that do not do this to be less developed.

Americans across the political spectrum support the general principle of habeas corpus, but the war on terror has created opposing views about its application. On the one hand, some, mostly conservatives, have supported the government’s authority to hold possible enemy combatants in foreign countries or at home without charge or judicial process. For them, the exigencies of the new threats to our safety justify reconsideration of traditional civil liberties. Others, generally liberals, have sought to extend the Constitution’s guarantee of habeas corpus to anyone brought within the power of the American government, even non-citizens captured in military operations abroad. For this side, the war on terror is analogized to the civil-rights movement and seen as another area for expansion of rights beyond their traditional scope.

While both sides are playing to their respective bases, the dispute is real, and each side has legitimate arguments to which it can turn. It is clear, however, that no one had thought out the situation that has led to the MCA beforehand. This is especially the case for those supporting the war, for whom the conquest would be a “cakewalk” and the possibility of holding persons for over three years in military facilities, if ever considered, was never stated publicly. As a result of its invasions of Iraq and Afghanistan, the United States is now presented with thousands of people of uncertain status who have been transported far from their homes, who have been collected into facilities indefinitely, and who have no real redress in either American courts or through the military justice process. The Hamdan decision does not solve this: the case merely holds that for those people determined by a tribunal to be enemy combatants, habeas protections apply to a degree; however, the government has no obligation to ever determine when someone is an enemy combatant, casting these individuals into jurisprudential no-man’s land. This situation has no real precedent in American history, and one can feel some sympathy for those trying to wrestle with the legal and political issues the war on terror has caused and the strain it has put on constitutional government.

With its actions in Guantanamo Bay, Abu Ghraib, and elsewhere, the United States has entered unknown territory, and is walking the knife edge between retaining the clear characteristics of a free republic and becoming something else. Some people have taken to calling this new entity an empire, but that is true only in certain respects. Because of its refusal to acknowledge any intent to occupy or govern conquered territories as its own possessions, preferring a policy of democratizing “rogue states,” what may be emerging is more of a perpetual war state, preparing for and engaging endless combat against “terror.”

Whatever it is called, one of the features of this emerging entity is the stratification within it of individuals based on their status—from full citizens down to those awaiting “enemy combatant” designations who are basically at the whim of the government. That too is an unfortunate side effect of imperial ambition—and one, perhaps not coincidentally, reflected in the maze of classifications and status designations in the immigration law. In one case, there is a class of guest workers abroad, who are not citizens but are useful for domestic policy; the other is a class of guest detainees serving a similar purpose for foreign policy.

But here is the tricky part: a state action can be “lawless,” in the language of the Supreme Court, only if it violates some law. In American jurisprudence that means statutory law or the Constitution. So if the law does not apply to foreigners, as respectable conservative argument might propose, what is the big deal? The Constitution provides that the right of habeas corpus may be abrogated only “when in cases of Rebellion or Invasion the Public Safety may require it.” This language was clearly intended to cover a limited crisis whose end could be determined with some certainty. Rebellion and invasion have commonsense, widely understood meanings. It is obviously far from clear how this limited exception may interact with an endless war on terror, with no clear guideposts or defined enemies. The Constitution does not directly address the question of what to do with these detainees.

Habeas corpus is not a universal right protecting one from being hauled up and locked away. Nor is it some irrevocable principle like the law of gravity. But that is not the end of the story. As conservatives well know, historical experience and development, even with its recognized flaws, is a surer safeguard of liberty than an appeal to vague or expansive “rights” and must be sustained by the customs, conventions, and beliefs of a people. This is where those advocating universal application of habeas fall short: their “rights talk” ignores the flaws of that theory of rights as it has been applied to areas ranging from criminal procedure to religious freedom: endless assertion of right against right (here, the right of habeas corpus against that of national self-defense) makes political life impossible. And their rush to support the Hamdan Court’s reliance on the Geneva Conventions or international law is clearly only a fig leaf for their own preferred outcomes. If the Conventions permitted slavery or torture, they would not be considered so persuasive.

But in pushing for limitations on habeas corpus, conservatives are ignoring their own best traditions. Conservatives are rightly suspicious of government, or at least they are with respect to the efficient provision of health care or welfare; it has been less so recently on issue of war. But the Hamdi decision perfectly illustrates the reasons for conservative suspicion: there the government wanted to detain a citizen without habeas corpus simply because it determined he was an “enemy combatant.” The Supreme Court, in a set of divided opinions, put a stop to that nonsense, but the fact that the case had to come before the Court at all should serve as a reminder to conservatives that the nature of a centralizing power is to strengthen itself.

The debate over extending habeas protections is echoed in the debate over torture. The debate over torture is basically on utilitarian terms: how many terrorists are worth torturing, and to what degree, in exchange for saving how many lives? A form of this utilitarian calculus is at play as well in the habeas corpus debate. The thinking seems to be that the greater the number of detainees, the less harm will come to us. But this is the wrong approach. The practice of torture is corrupting to us, as well as damaging to those we torture, because the practice degrades us. Once a society starts arguing about when such coercive methods are “appropriate,” it has already begun to condone permitting its own citizens to brutalize and debase themselves as well as harm their victims. Similarly with habeas corpus: while those subject to the MCA are being ill served, getting citizens used to the having large numbers of foreigners held at our mercy is corrosive and corruptive of our liberty. Once a nation grows accustomed to the idea that it may hold some people without trial indefinitely, it is easier to dissolve the characteristic—citizenship—that is marked out as the reason for different treatment.

The habeas corpus debate, much like our debate over the uses of torture, betrays the absolutist mind lurking beneath much of American idealism. According to this mindset, recognized by conservatives such as Robert Nisbet over 40 years ago, the “moral and political aspirations” of foreign policy blind us to realities on the ground. Here a great injustice is being done to many people within the direct power of the United States to help, and all the talk of promoting democracy or defeating the terror masters will not hide that.
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Gerald J. Russello is editor of The University Bookman. His book on the thought of Russell Kirk is being published by the University of Missouri Press.

Bush’s Torture/Dictatorship Scandal

American Conservative: Bush’s Torture/Dictatorship Scandal

Here is the full text of my piece on the Military Commissions Act & the torture scandal from the December 18, 2006 issue of the American Conservative.

It is good to the screws tightening on some of these Bush rascals. This scandal could put an end to Bush II.

Bush’s Torture Ticking Time Bomb: Sins of Commission

By James Bovard

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 “sends a clear message… We will never back down from the threats to our freedom.” “Rough interrogation” (a.k.a. torture) in the name of freedom may be Bush’s clearest ideological legacy.

Bush endlessly reminds listeners that “the U.S. does not torture” and that “torture is not an American value.” But “What is torture?” 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 weren’t maimed or killed, they weren’t 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 Bush’s 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, “The act grants fewer rights to defendants than the Nazis got at Nuremberg.”

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 “turning back the clock 800 years,” as Sen. Arlen 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, “The 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.” White House press spokesman Tony Snow agreed that the law made Bush the “final arbiter on torture.”

Though U.S. government interrogation methods have been intensely controversial around the world, most congressmen looked the other way and rubber-stamped Bush’s legislative wish list. The Boston Globe reported in September that “because of the Bush administration’s restrictive policy on sharing classified information with Congress, very few of the people engaged in the debate will know what they’re talking about.” Sen. Jeff Sessions (R-Al.) epitomized the prevailing righteous ignorance when he declared, “I don’t know what the CIA has been doing, nor should I know.” The less they know, the easier it is for Republican congressmen to deny U.S. government wrongdoing.

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. “Evidence” 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 “evidence” produced by interrogations that violated “cruel, unusual or inhumane treatment” 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 doesn’t 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. A Justice Department spokeswoman claimed that letting Khan discuss his interrogation with his lawyer “is inadequate to protect unique and potentially highly classified information that is vital to our country’s ability to fight terrorism.” Thus, the feds can use whatever Khan said against him while hiding the methods that made him squeal.

The MCA creates procedural biases akin to a 1938 Moscow show trial. Defense attorneys can “challenge the use of hearsay information obtained through coercive interrogations in distant countries only if they can prove it is unreliable,” 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 tortureat 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.

Like an old-time southern segregationist campaign, the Republican Party has proceeded to portray any congressmen who failed to vote for the MCA as a “terrorist lover.” House Speaker Dennis Hastert (R-Ill) claimed that Democrats had “voted in favor of new rights for terrorists,” and House Majority Leader John Boehner declared that Democrats “voted against bringing the most dangerous terrorists to justice.” The National Republican Senatorial Committee denounced incumbent Democrats who voted against suspending habeas corpus for having “sided with trial lawyers and terrorists.” After Bush signed the bill, a Republican National Committee press release was headlined, “Democrats would let terrorists free.”

Throughout the fall campaign, the GOP used the MCA to flaunt its “tough on terrorism” message. At a “Texas Victory Rally” on Oct. 30, Bush declared, “When it came time to vote on whether or not to allow the CIA to continue its program to detain and question captured terrorists, more than 80 percent of House Democrats voted against it.” Bush coached the audience to respond to his questions as if the event were a giant DARE rally. The president asked, “When it comes to questioning terrorists, what’s the Democrat’s answer?” The audience roared, “Just say no!”

Aside from Bush and other Republicans’ dishonest taunts of Democrats, torture was a non-issue in congressional campaigns. The New York Times noted, “In a season of shameless attack ads, torture is still too shameful to be debated.” Few, if any, Democratic candidates had enough confidence in themselves or the voters to highlight the Bush administration’s worst abuse of power.

That doesn’t mean, however, that they won’t 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 “a 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.” This confirms a May 2004 e-mail from the FBI’s “On Scene Commander” 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 “sensory deprivation through the use of hoods,” 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. Bush’s involvement in the torture scandal may be far deeper than Nixon’s involvement in Watergate.

The Bush secret ruling on interrogation methods may explain the Justice Department’s 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 “shackled in a crucifixion-like pose that inhibited his ability to breathe.” 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 doesn’t 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, “under the Bush Administration’s secret interrogation guidelines, the killing of Jamadi might not have broken any laws.” Unfortunately, there is no reason to assume that Bush has not given interrogators a license to kill. Steven Bradbury, head of the Justice Department’s 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 Bradbury’s comments occurred during an “off-the-record briefing.” 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 “enabling act” legislation that preserves the appearance of law while empowering the commander in chief to do as he pleases. Bush’s torture policies may signal that he accepts the dicta of Richard Nixon: “When the president does it, that means that it is not illegal.” 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 administration’s penchant for secrecy. Much of Bush’s 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.

American Conservative

Un-American conduct

Tuesday, December 5, 2006

THE WAY Jose Padilla, a U.S. citizen, has been treated by the federal government thoroughly besmirches the principles it purports to uphold.

Every revelation about Padilla casts a pall over not only the legality, but also the morality of the detention process established by the Bush administration, allegedly in the defense of the American homeland's security.

Padilla was originally accused of the most outrageous crimes -- including plotting to detonate a "dirty bomb" on U.S. soil.

A belated criminal indictment against Padilla makes no mention of any specific terrorist plot or of any "dirty bombs." But the United States continues to treat him as if he is one of the most dangerous people on the planet.

We are not saying Padilla is an innocent man. But because he has been held in virtual isolation for nearly five years, who could possibly know what he may or may not have done?

A video made by his U.S. captors show him being treated in ways that are too reminiscent of the conduct of some of the enemies we are trying to defeat. When being transferred for a medical appointment, for example, Padilla was put in chains, his eyes covered with blackened goggles and his ears with sound-proof ear muffs.

That is the least of it. A 22-hour exam by the director of forensic psychiatry at the Creedmoor Psychiatric Center in Queens, N.Y., found he is suffering from post-traumatic stress disorder "complicated by the neuropsychiatric effects of prolonged isolation" -- and now "lacks the capacity to assist in his own defense."

Keeping a citizen -- or non-citizen for that matter -- in virtual solitary confinement for five years, without charges being brought against him for most of that time, and breaking him until he is unable to assist in his own defense, is not the American way.