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Bush, Torture, and the Rule of Law

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Last November, George W. Bush’s memoir, Decision Points, hit the streets. And Americans could see firsthand the former president bragging about ordering torture. Bush wrote that when he was requested to approve the CIA’s waterboarding of Khalid Sheikh Mohammed, he responded, “Damn right.” Six months before his memoir was released, in a speech in Grand Rapids, Michigan, he told the audience, “Yeah, we water-boarded Khalid Sheikh Mohammed. I’d do it again to save lives.”

There’s no evidence that waterboarding Khalid Sheikh Mohammed scores of times saved any lives. But perhaps knowing how his enemies were being brutalized helped Bush strut around in 2003 and beyond.

The United States had classified waterboarding as torture since the Spanish American War, and the U.S. government had classified waterboarding as a war crime since 1947. Bush’s torture policies may have been based on the dictum of Richard Nixon: “When the president does it, that means that it is not illegal.”

Yet, President Obama’s Attorney General, Eric Holder, has signaled that neither Bush nor anyone else involved in ordering torture will be taken to task. We now have the rule of law as well as a “most powerful people in the world” exemption from the rule of law.

Bush’s admission of torture should come as no surprise. His administration brazenly trampled human rights from 2001 onwards. From the first days after the Abu Ghraib photos hit the airwaves, the torture scandal has epitomized the worst of the Bush presidency. A timid media, a cowardly opposition party, and a refusal by most Americans to face the grisly facts contained the political damage.

When Bush was pressed by NBC’s Matt Lauer in 2006 about the use of brutal interrogation methods, he replied, “Whatever we have done is legal…. We had lawyers look at it and say, ‘Mr. President, this is lawful.’” But Bush’s legal lackeys also proclaim that the president’s command is the highest law.

Bush recited denials on torture even after the evidence of his administration’s deceits were already overwhelming. From early 2005 onward, he repeatedly declared that the United States did not use rendition — the transporting of terror suspects to other countries where they are tortured. He told the New York Times in January 2005 that “torture is never acceptable, nor do we hand over people to countries that do torture.” Doing so would be a federal crime.

But the evidence of CIA “torture taxis” secretly racing around the globe carrying gagged, sedated detainees to some of the most brutal regimes in the world proved too much for Bush to deny. He revised his defense a few months later: “We operate within the law and we send people to countries where they say they are not going to torture people.” But then why would the United States go to the trouble of kidnapping people — Canadian Maher Arar, who was grabbed at Kennedy Airport and renditioned to Syria or Australian Mamduh Habib, seized in Pakistan and flown to Egypt, for instance — and turning them over to governments the United States has long denounced for using torture?

While Bush bears ultimate blame for the U.S. embrace of torture, Vice President Cheney’s team often drove the policy. The Washington Post reported in 2007 that starting in January 2002 “Cheney turned his attention to the practical business of crushing a captive’s will to resist. The vice president’s office played a central role in shattering limits on coercion in U.S. custody.” The Post noted, “Cheney and his allies … pioneered a novel distinction between forbidden ‘torture’ and permitted use of ‘cruel, inhuman or degrading’ methods of questioning.” The Geneva Conventions, which are binding under U.S. law, make no such distinction.

Redefining “torture”

The key was a radical new understanding of torture spelled out in an Aug. 1, 2002, Justice Department memo that narrowed the definition to suffering “equivalent in intensity” to “organ failure … or even death.” Call it a license to almost kill. Top military experts opposed the redefinition, but a few high-ranking civilian appointees at the Pentagon scorned the veterans.

Bush’s torture regime rested on the notion that anyone labeled an enemy combatant deserves whatever harsh treatment he receives. Combatant Status Review Tribunals were used to confirm the guilt of people sent to Guantánamo as enemy combatants, but the tribunals routinely relied on confessions obtained by torture and hearsay evidence, and almost any allegation was sufficient to perpetuate detention. Candace Gorman, a Chicago attorney who represented two Guantánamo detainees, noted that in one case “the [tribunal] darkly noted that the prisoner owned a Casio wristwatch (which could conceivably be used to time explosives)…. Karate skills, knowledge of computers and participation in the pilgrimage to Mecca have also been considered factors supporting ‘continuing detention.’”

Lt. Col. Stephen Abraham, a 26-year Army veteran who had a pivotal role in gathering evidence for the tribunals, filed a sworn affidavit in 2007 declaring that the process of identifying enemy combatants at Guantánamo was a sham and that officers were pressured to find defendants guilty. Abraham noted, “What purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence.” He noted that intelligence agencies refused to divulge exculpatory information that might clear the accused. The Pentagon conducted more than 500 hearings and found almost all the accused guilty, though sometimes a second or third panel of officers had to be summoned to convict. Abraham noted, “In very few instances would you find very specific information from which you could conclude [someone] was an enemy combatant.”

Bush endlessly reminded 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 Pontius Pilate’s question, “What is the truth?” He appeared 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 acted as though, even if detainees were killed during interrogations, it was best to treat the deaths as harmless errors.

Instead of clear standards established by the legislature, the president decreed what methods of brutalizing detainees would be allowed, regardless of the Geneva Conventions or the U.S. Anti-Torture Act. As Yale law professor Jack Balkin noted, “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 this law makes Bush the “final arbiter on torture.”

Systematic failure

The American political system has dismally failed since the start of the Bush torture regime. Though U.S. government interrogation methods were intensely controversial around the world, most congressmen looked the other way and rubber-stamped Bush’s legislative wish list. The Boston Globe reported in 2006 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-Ala.) 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 knew, the easier it was for congressmen to deny government wrongdoing.

The political exploitation of torture hit a high-water mark in the 2006 congressional election campaigns. Bush browbeat Congress into enacting the Military Commissions Act (MCA) — which retroactively decriminalized torture.

Recalling an old-time Southern segregationist campaign, the Republican Party portrayed 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.”

At a “Texas Victory Rally” on Oct. 30, 2006, 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 Democrats’ answer?” The audience roared, “Just say no!”

Many Americans expected that Obama would pull back the cover on Bush-era torture abuses. Instead, the Obama team has covered up almost all of them. The Obama administration vigorously opposed Canadian citizen Maher Arar’s motion to get justice and to discover the details of the U.S. government’s role in his horror torture trip to Syria. Obama’s Justice Department told the court that permitting discovery in Arar’s case could result in unfairly exposing or scrutinizing “the motives and sincerity of the United States officials who concluded that petitioner could be removed to Syria.” The Obama administration extended sovereign immunity to cover the reputation of torturers and enablers of torture.

Obama’s Justice Department helped sway a federal appeals court to decree that top Bush administration officials have zero personal liability to British citizens supposed to have been tortured at Guantánamo. (Ironically, the Justice Department had trumpeted its role in convicting football star Michael Vick after he was accused of torturing dogs.)

Obama vigorously opposed proposals for a “truth commission” to investigate and expose the extent of U.S. interrogation abuses in the post-9/11 era. Jameel Jaffer, director of the ACLU’s national security program, observed that the Obama administration’s position is that “the greater the abuse, the more important it is that it should remain secret.”

Obama should either enforce the law or formally call for Congress to withdraw from the United Nations Convention against Torture. And if he chooses to follow that path, he should also urge Congress to repeal the 1996 Anti-Torture Act. And to be honest with the American people about the nature of the government that rules them, Obama should demand a constitutional convention. If torture is de facto legal in America, the Eighth Amendment — which prohibits cruel and unusual punishment — must be repealed.

This article originally appeared in the March 2011 edition of Freedom Daily. Subscribe to the print or email version of Freedom Daily.

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    James Bovard serves as policy adviser to The Future of Freedom Foundation. He has written for the New York Times, The Wall Street Journal, The Washington Post, New Republic, Reader's Digest, Playboy, American Spectator, Investors Business Daily, and many other publications. He is the author of a new e-book memoir, Public Policy Hooligan. His other books include: Attention Deficit Democracy (2006); The Bush Betrayal (2004); Terrorism and Tyranny (2003); Feeling Your Pain (2000); Freedom in Chains (1999); Shakedown (1995); Lost Rights (1994); The Fair Trade Fraud (1991); and The Farm Fiasco (1989). He was the 1995 co-recipient of the Thomas Szasz Award for Civil Liberties work, awarded by the Center for Independent Thought, and the recipient of the 1996 Freedom Fund Award from the Firearms Civil Rights Defense Fund of the National Rifle Association. His book Lost Rights received the Mencken Award as Book of the Year from the Free Press Association. His Terrorism and Tyranny won Laissez Faire Book's Lysander Spooner award for the Best Book on Liberty in 2003. Read his blog. Send him email.