[Peace-discuss] The Bush legacy of legalized torture

[Paul Patton]

*Why the McCain Torture Ban Won't Work
The Bush Legacy of Legalized Torture
 *
  *by Alfred W. McCoy *


Just before Christmas, two of the world's most venerable legislative bodies
engaged in erudite, impassioned debate over what the right balance should be
between the imperatives of national security and international prohibitions
on torture. They arrived at starkly divergent conclusions that reveal the
depth of damage the war on terror is doing to this country's civil
liberties.

On December 7, the House of
Lords<http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd051208/aand-1.htm>,
reviewing cases in which a dozen Muslim militants were to be deported, spoke
with moral clarity on the issue of torture, branding it "an unqualified
evil" which should have no place in the proud, thousand-year tradition of
British justice. Just a week later, the U.S. Senate
amended<http://mccain.senate.gov/index.cfm?fuseaction=NewsCenter.ViewPressRelease&Content_id=1611>the
Defense Appropriations Bill to prohibit the "abuse" of detainees in
American custody, including the many Muslims at our Guantanamo prison, but
did so on the purely pragmatic, almost amoral grounds that it "leads to bad
intelligence." Under pressure from the White House, the senators also loaded
this legislation with loopholes that may soon allow coerced testimony --
extracted through torture -- into American courts for the first time in two
centuries.

This disconcerting contrast is but one sign that, under the Bush
administration, the United States is moving to publicly legitimate the use
of torture, even to the point of twisting this congressional ban on inhumane
interrogation in ways that could ultimately legalize such acts. And
following their President's lead, the American people seem to be developing
a tolerance, even a taste, for torture.

This country may, in fact, be undergoing an historic shift with profound
implications for America's international standing. It seems to be moving
from the wide-ranging but highly secretive tortures wielded by the Central
Intelligence Agency during the Cold War decades to an open, even proud use
of coercive interrogation as a formal weapon in the arsenal of American
power, acceptable both to U.S. courts and the American people.

In the early years of its war on terror, the administration maintained the
long-standing yet informal executive policy of ordering clandestine CIA
torture in times of crisis. Minutes after his public address to a shaken
nation on September 11, 2001, President
Bush<http://www.guardian.co.uk/comment/story/0,,1644028,00.html>barked
to his aides, "I don't care what the international lawyers say, we
are going to kick some ass."

As administration lawyers translated these words into formal directives,
they carefully cloaked this otherwise unlawful demand in three controversial
constitutional arguments -- that the president's commander-in-chief powers
allow him to override all laws and treaties; that U.S. anti-torture laws can
be stretched to provide a winning legal defense for any CIA interrogator
accused of torture; and most tenuously of all, that the detainee prison at
Guantanamo Bay in Cuba was not on American territory and so was beyond the
writ of U.S. courts.

Two years later, when the infamous photos from Iraq's Abu Ghraib prison
exposed the administration's illegal interrogation tactics in lurid color,
the White House was faced with an historic choice that, in practice, proved
no choice at all: either definitively ban torture or defy the international
community by promoting the practice.

*Bartering Away Legal Birthrights*

That the upper deliberative bodies of the United States and Great Britain
found themselves facing the question of torture at exactly the same moment
had a certain ironic appropriateness. After all, the two countries share a
secret history of torture reaching back to the dark early days of the Cold
War. In 1951, these two nations collaborated in a covert CIA-run
mind-control research project into which the American government ultimately
poured several billion dollars. Late in that decade, CIA scientists
elaborated that research into a revolutionary new form of
torture<http://www.tomdispatch.com/index.mhtml?pid=1795>,
more psychological than physical, that would prove both legally elusive and
highly destructive to the human psyche.

Even though this "no-touch" psychological form of torture generally did
greater lasting damage than its physical variant, it was surrounded by an
appealing scientific aura and was, at least in theory, devoid of the obvious
signs of brutality that might trouble the public and provide telling
evidence for prosecutors.

For the next 20 years, Washington deployed these torture techniques against
communists and other revolutionaries in Asia and Latin America.
Simultaneously, London used them to fight nationalists in its far-flung
territories during the long, bloody eclipse of the British empire -- in
places like Aden, Brunei, British Guiana, and Northern Ireland.

In 1978, charged before the European Court of Human Rights with torturing
IRA suspects, Britain swore "a solemn undertaking" that it would never again
deploy these psychological torture techniques. Last month, in reversing the
deportations of Muslims convicted on "evidence procured by torture inflicted
by foreign officials," London's law lords cited this case in ruling that
"bedrock moral principle" from centuries of common law and recent
international conventions made torture anathema in the country's courts.

By contrast, confronted with strong evidence of detainee abuse at Abu Ghraib
and Guantanamo, the Bush White House has fought back by defending torture as
a presidential prerogative and so precipitating an epic political struggle
in this country. As a powerfully symbolic state practice, synonymous with
brutal autocrats, torture, even of the few, raises profound moral and legal
questions about the limits of presidential power, the quality of our
justice, and ultimately the character of this American civilization.

While the Bush White House has protected and promoted senior officials
implicated in the torture scandal, an ad hoc civil-society coalition of
courts, media, and human rights groups has mobilized to stop the abuse. In
June 2004, the Supreme Court ruled in a landmark case, Rasul v.
Bush<http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=us/000/03-334.html>,
that the Guantanamo detainees were indeed on U.S. territory, no matter what
the administration's lawyers claimed, and so deserved access to American
courts. This decision prompted some of the country's top law firms, working
pro bono, to file 160 habeas corpus cases on behalf of some 300 Guantanamo
detainees.

Last summer, Senator John McCain proposed an
amendment<http://www.fas.org/irp/congress/2005_cr/mccain100505.html>to
the must-pass Defense Appropriation Bill that would ban all "cruel,
inhumane and degrading" treatment of detainees and set the U.S. Army Field
Manual as the standard for any interrogation, whether by the military or the
CIA. President Bush reacted by vowing to veto the bill, should it somehow
pass the Republican-controlled Congress.

When Bush's bluff failed, the White House began lobbying for the insertion
of loopholes into the proposed prohibition. First, Vice President Cheney
pressed McCain to exempt the CIA from his ban. The senator refused. Next,
National Security Adviser Stephen Hadley weighed
in<http://www.whitehouse.gov/news/releases/2005/12/20051215-5.html>,
urging broad legal exemptions for CIA torturers. Again, the senator stood
his ground. Suddenly, Secretary of Defense Donald Rumsfeld's Pentagon
rewrote the Army Field Manual to teach interrogators, as the *New York Times
* reported, "how to walk right up to the line between legal and illegal
interrogation" -- changes one Defense official termed "a stick in McCain's
eye."

To placate the White House,
McCain<http://jurist.law.pitt.edu/gazette/2005/12/detainee-treatment-act-of-2005-white.php>eventually
softened his prohibition by adding a legal defense for accused
CIA and military interrogators that mimes the extreme exculpatory logic of
the Justice Department's notorious August 2002 Bybee
memo<http://www.tomjoad.org/bybeememo.htm>.
Drafted to protect CIA interrogators after 9/11, this now-disavowed document
argued that torture, as defined under U.S. law, required that the suffering
inflicted "be equivalent in intensity to the pain accompanying serious
physical injury, such as organ failure, impairment of bodily function, or
even death." In a section of McCain's amendment called "Protection of United
States Government Personnel," the final legislation opened a little noticed
but similarly cavernous legal loophole for future torturers. It allowed U.S.
officials "engaging in specific operational practices that involve
interrogation of aliens" to claim, if charged, that they "did not know that
the practices [they used] were unlawful."

After the Senate passed McCain's torture ban by a resounding 90-9 vote,
ending any hope of a presidential veto, the administration tried to further
neutralize its impact by backing an
amendment<http://jurist.law.pitt.edu/gazette/2005/11/graham-amendment-on-detainee-judicial.php>authored
by Republican Senator Lindsey Graham of South Carolina. As
originally drafted, this amendment would have allowed the courts to consider
all evidence collected under any but the most outrageous uses of "undue
coercion." No less startlingly, it denied detainees in places like
Guantanamo -- those "unlawful combatants" - any right to challenge their
detention by filing writs of habeas corpus in U.S. courts. Complaining
that<http://lgraham.senate.gov/index.cfm?mode=presspage&id=248690>"Non-Citizen
Terrorists" at Guantanamo were filing cases over "the quality
of their food," Graham urged passage of his amendment to spare "our troops
fighting in the War on Terror" from being "sued in every court in the land
by our enemies." For a mess of partisan pottage, the senator was bartering
away this nation's constitutional birthright of habeas corpus, a
foundational legal protection born of Parliament's long struggle to ban
royal torture writs by the infamous Court of Star Chamber.

After the Senate approved Graham's amendment by a 49-42 vote on November 10,
reformers led by Democratic Senator Carl Levin fought an uphill battle to
moderate these extreme proposals -- replacing the bill's blanket acceptance
of "coerced" evidence with ground rules for its evaluation by the courts and
trying to limit the ban on habeas corpus appeals from Guantanamo to future
cases, allowing those already filed to proceed.

But in the final
legislation<http://jurist.law.pitt.edu/gazette/2005/12/detainee-treatment-act-of-2005-white.php>,
titled "The Detainee Treatment Act of 2005," McCain's now-compromised ban on
cruel treatment of detainees was effectively eviscerated by Graham's denial
of legal redress. To nullify the landmark Supreme Court ruling that
Guantanamo is, in fact, American territory and so falls under the purview of
U.S. courts, Graham also stipulated in the final legislation that "the term
'United States,' when used in a geographic sense, does not include the
United States Naval Station, Guantanamo Bay." In this way, he tried once
again to deny detainees any legal basis for access to the courts. In effect,
McCain's motion more or less bans torture, but Graham's removes any real
mechanism for enforcing such a ban.

*The Media Mirage of a Torture Ban*

Last December 15, all these tensions seemed to dissolve in a dramatic Oval
Office handshake between Senator McCain and President
Bush<http://www.whitehouse.gov/news/releases/2005/12/20051215-3.html>who
announced that the landmark legislation made it "clear to the world
that
this government does not torture."

That White House photo-op was, however, a complete media mirage. Within
hours, the administration began moving deftly to pull any teeth left in this
legislation. Speaking to CNN, Attorney General Antonio
Gonzales<http://transcripts.cnn.com/TRANSCRIPTS/0512/15/sitroom.01.html>quickly
dismissed McCain's reform as insignificant, insisting that existing
legislation only banned the infliction of "severe" physical or psychological
pain in interrogations -- the same linguistic legerdemain that had allowed
the administration to start torturing back in 2002. The attorney general
seemed to be echoing the opinions of his subordinates who, according
to the Washington
Post<http://www.washingtonpost.com/wp-dyn/content/article/2006/01/10/AR2006011001536_pf.html>,
were already arguing that the McCain amendment would, "under certain
circumstances," still allow "waterboarding" -- the same method that the
French Inquisition had once called the "question de l'eau" (water question)
or "torturae Gallicae ordinariae" (standard Gallic torture) -- and other
harsh techniques.

On December 30, right after signing a defense bill that included the McCain
amendment at his Crawford ranch, President
Bush<http://www.whitehouse.gov/news/releases/2005/12/20051230-8.html>issued
a "signing statement" -- carefully released at the extremely
unnewsworthy hour of 8:00 pm that Friday night -- insisting that his powers
as commander-in-chief and head of the "unitary executive branch" still
allowed him to do whatever was necessary to defend America. So much for
McCain's efforts as the year ended.

Just four days into 2006, Senator
McCain<http://mccain.senate.gov/index.cfm?fuseaction=Newscenter.ViewPressRelease&Content_id=1634>,
though claiming confidence that the "President understands Congress's
intent" in passing the torture ban, promised "strict oversight to monitor
the Administration's implementation of the new law." Faced with
nullification by the presidential signing statement, Senator Edward
Kennedy<http://www.asksam.com/cgi-bin/as_web6.exe?Command=DocName&File=Alito_Hearing&Name=Day%202%20%2d%20Kennedy>warned,
during Judge Alito's confirmation hearings, that President Bush was
insisting "whatever the law of the land might be, whatever Congress might
have written, the executive branch has the right to authorize torture
without fear of judicial review."

As if to confirm this pessimistic view, the administration quickly deployed
the new Detainee Treatment Act to quash any judicial oversight of its
actions -- particularly the dubious designation of detainees as "unlawful
enemy combatants" unworthy of any protection by the Geneva Conventions or
the U.S. Constitution.

On January 3, the Justice Department, citing this new law, notified federal
judges that it would soon seek the immediate dismissal of all 160 habeas
corpus cases already filed for 300 Guantanamo detainees. On January 12, the
Solicitor General, again citing the new law, told the Supreme Court it no
longer had jurisdiction over Guantanamo and asked the justices to dismiss
another potential landmark "unlawful combatant" case, Hamdan v. Rumsfeld.
Then, putting the cherry atop the administration's many-layered legal
confection, on January 24 the Army changed its standing orders to allow
military executions at Guantanamo, thus keeping the U.S. courts from
intervening in any drum-head death sentences for detainees.

All these maneuvers were part of a White House campaign essentially aimed at
formalizing those three dubious legal doctrines that had long underpinned
its torture policy. Recoiling from the prospect of an "Imperial Presidency"
implicit in these moves, the *New York Times* of January 15 called on
Congress "to curtail Mr. Bush's expansion of power" and his "unilateral
rewriting of more than 200 years of tradition and law."

Looking through a glass darkly into the future, the possible implications of
these trends for the quality of American justice are troubling indeed. The
military tribunals at Guantanamo are not required to reveal the sources of
their evidence against the 500 detainees on trial, even though significant
parts of it undoubtedly come from torture and abuse of either the accused or
other detainees. Moreover, under the Detainee Treatment Act, federal courts
will be able to consider the use of this same coerced information in hearing
any appeals from Guantanamo. In a sharp, sad contrast with Britain's law
lords, our congressional legislation allows the courts to weigh the
probative value of tortured testimony, potentially introducing coerced
evidence into the federal courts for the first time in our nation's history.


One question seldom asked is: Why has the public response to issues that cut
to the very core of America's national identity been so muted? The short
answer: The administration's increasingly unapologetic advocacy of torture
has echoed subtly but effectively with the trauma of 9/11.

With the horrific reality of the Twin Towers attack still resonating and
endless nuclear-bomb-in-Times-Square/ticking-bomb interrogation scenarios
ricocheting around the media and pop culture, torture seems to have gained
an eerie emotional traction. Polls taken over the last three years have
confirmed this. With a complex reality reduced to a few terrifyingly simple,
fantasy-ridden scenarios, torture in defense of the "homeland" has gained
surprisingly wide acceptance, while the torture debate has been reframed --
to the administration's great advantage -- as a choice between public safety
and the lives of millions or private morality and bleeding-heart qualms over
a few slaps up the side of the head. In this way, old-fashioned morality has
been made to seem little short of immoral.

Through the invisible tendrils that tie a state to its society, the media
has often reflected aspects of administration policy on such subjects.
Television, in particular, has had a powerful effect in its repeated
portrayals of harsh, even abusive interrogations as effective and morally
justified acts --when, in fact, they are neither. After years of watching
television shows such as "NYPD Blue" and "24" with plots that mimic the
ticking-bomb scenario, millions of ordinary Americans seem to believe that
we have entered an era when abuse, or even torture, is necessary to save
lives.

Each week, for instance, up to 20 million Americans have watched the
fictional detectives of "NYPD Blue" use harsh methods to "tune up" suspects
in the "pokey,'" or interrogation room, risking their careers to extract
information that regularly saved lives and made the city safer. Accepting
the need to torture just one criminal in this week's episode, or just one
terrorist with a ticking bomb in Fox Television's popular CIA drama "24,"
opens ordinary Americans to consider whether the torture of real terrorists
is not only justifiable but imperative. It seems likely that these televised
scenarios have lent a hand in creating a public climate tolerant of
governmental torture.

Does Bush administration policy really reflect a fundamental shift in moral
choices by the American public? Have we really developed a taste for
torture?

As a people, we are now faced with a decision that will influence the
character of our nation and its reputation in the eyes of the world. We can
agree with the Bush administration's decision to make torture a permanent
weapon in the American arsenal -- or we can reject this policy and join the
international community by honoring our commitments under the UN convention,
as well as under U.S. law, and banning torture unconditionally.

*Alfred W. McCoy is the author of "A Question of Torture: CIA Interrogation,
from the Cold War to the War on
Terror<http://www.amazon.com/exec/obidos/ASIN/0805080414/commondreams-20/ref=nosim>"
(Metropolitan Books, The American Empire
Project<http://www.americanempireproject.com/>,
2006) and a professor of history at the University of Wisconsin-Madison.*

(c) 2006 Tom Engelhardt
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