The United States of Barbarism

The Future of Freedom Foundation is shotgunning out today an oped I wrote on the torture deal.  

FFF is one of the few places that has remained true to its principles since 9/11.  FFF chief Jacob Hornberger refused to compromise or kowtow no matter how high Bush’s approval ratings rose. 

The United States of Barbarism
by James Bovard, September 25, 2006

The U.S. Senate is cutting a deal with President Bush to make America a banana republic. Last week, three senators reached an agreement with the White House that will de facto permit the CIA to continue torturing people around the world. And the deal will prevent anyone — including Bush administration officials — from being held liable for the torture.

This is latest sign that our elected representatives in Washington believe that the federal government deserves absolute power over everyone in the world. Former Secretary of State Colin Powell warned recently that Bush’s efforts to gut the Geneva Conventions would cause the world to “doubt the moral basis of our fight against terrorism.”

But more important, the Senate-White House torture deal should cause Americans to doubt the moral basis of their entire government. After 9/11, many Bush administration officials seemed determined to use any and every means to bludgeon people suspected of terrorism or terrorist intent. The Justice Department delivered to the White House a memo in August 2002 explaining why Bush was not bound by the War Crimes Act or the Anti-Torture Act.

The memo began by largely redefining torture out of existence. It then explained why even if someone died during torture, the torturer might not be guilty if he felt the torture was necessary to prevent some worse evil. The memo concluded by revealing that the president has the right to order torture because he is above the law, at least during wartime (even if Congress has not declared war).

The Justice Department declared that the president may effectively exempt government officials from federal criminal law, noting that “Congress cannot compel the President to prosecute outcomes taken pursuant to the President’s own constitutional authority. If Congress could do so, it could control the President’s authority through the manipulation of federal criminal law.”

The memo’s absolutism would have brought a smile to despots everywhere: “As the Supreme Court has recognized … the President enjoys complete discretion in the exercise of his Commander-in-Chief authority and in conducting operations against hostile forces…. we will not read a criminal statute as infringing on the President’s ultimate authority in these areas.”

Thus, the “commander-in-chief” label automatically swallows up the rest of the Constitution. Yet, as Yale Law School Dean Harold Koh observed, “If the president has commander-in-chief power to commit torture, he has the power to commit genocide, to sanction slavery, to promote apartheid, to license summary execution.”

This is the doctrine that the Senate-White House deal largely codifies. It will be up to the president to declare which interrogation methods U.S. agents can use — almost regardless of the Geneva Conventions. It will be up to the president to decree who will face “rough” interrogation.

The details of the torture deal vivify how our politicians no longer give a darn about maintaining even a pretense of due process. The agreement will permit the use of coerced confessions in military tribunals — turning the judicial clock back to the 1600s. The Washington Post noted that the agreement permits “defense attorneys to challenge the use of hearsay information obtained through coercive interrogations in distant countries only if they can prove it is unreliable.” Thus, there is a presumption of correctness to whatever accusation is bludgeoned out of people in secret prisons around the world.
And 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.

But that is fair enough for the U.S. Congress.

The New York Times noted that the agreement “would impose new legal standards that it forbids the courts to enforce.” Thus, it will be impossible for the vast majority of detainees at Guantanamo to challenge their detention.

The unverified accusations of U.S. government officials will still be the highest law of the land. The habeas corpus rights that go back to the Magna Charta of 1215 will be null and void under the agreement for many, if not most, detainees.

The torture scandal shows what happens when politicians and political appointees are permitted to redefine barbarism out of existence. If the government can effectively claim a right to torture, then all other limits on government power are practically irrelevant. What would it take to make the public acquiesce to the torture of Americans? Would simply applying an “odious” label (such as “cult member” at Waco, or “Muslim” with John Walker Lindh) to the victims be sufficient?

James Bovard is the author of Attention Deficit Democracy [2006] as well as The Bush Betrayal [2004], Lost Rights [1994] and Terrorism and Tyranny: Trampling Freedom, Justice and Peace to Rid the World of Evil (Palgrave-Macmillan, September 2003) and serves as a policy advisor for The Future of Freedom Foundation.


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11 Responses to The United States of Barbarism

  1. Jim September 25, 2006 at 4:45 pm #

    Will Grigg has an excellent post on the torture developments at his blog today –

    Will’s info on Lou Sheldon’s Traditional Values Coalition for Bush-style “interrogation” is appalling.

  2. James Wilson September 26, 2006 at 1:57 pm # is campaigning against this bill:

  3. Jim September 26, 2006 at 2:39 pm #

    Here is a testy response I received today when kindly posted the article on his website:

    Sir, from reading your articles in the past I am not surprised that you join the side of The Democrats, John McCain and his trio and our enemies in agreeing that we should sacrifice the lives of American women and children in order to be kind to the likes of Khalid Sheik Mohammad.

    You refer to the ‘Gevena Convention’. Have you read it???? Maybe you overlooked the part that both parties must sign it and that it only applied to soldiers wearing an identifiable uniform.If you could show that these detainees had sifned the Convention and that they were in uniform of their country, some creditability could be assigned to your article.

    Do you understand that we were attacked and lost 3000 plus of our innocent people???? Now, you, the Democrats and the John McCain trio weep for the killers and want them to have the same rights that our citizens have. I would expect women and ‘girlie-boys to be soft on killers but I am appalled at the number of so-called men to cave in to support them.

    I am 93 years and 11 Months old. I could have opted out of World War Two but didn’t. When someone talks about, “walking the valley of the Shadow of death”, I understand what that means. Have you ever followed a retreating enemy and found the bodies of women and little girls with their belly’s split open and left to die a horrible death?? I DIDN’T THINK SO SINCE YOU DON’T SEEM CONCERNED ABOUT OUR INNOCENT PEOPLE THAT WERE KILLED by people that read from the same book as your new found friends.

    What would you suggest instead of sending our military, Would you send flowers and social workers??

    When we finish giving our country to the invaders from the South and bend our laws to accommodate the Muslims from the East, they will fight for which one controls the country. Which side will you support??

    Maybe if you, The Democrats and The McCain Trio work harder you could move the front line in the war to St. Louis, Dallas, Miami, Atlanta, New York and Washington, D.C. We would lose some innocent citizens, but not to worry, Mexico will replace any we lose by a ratio of ten to one.

    Maybe if you treat them nice they won’t cut your head off. Of course, if you are one of them maybe they will spare you.

  4. MarkN September 26, 2006 at 7:24 pm #

    Bush will consider himself blameless, too. He will simply say that he was obeying the law passed by Congress. So none of them will consider themselves responsible for atrocities. And the Supremes will probably go along, too. But I wonder about retroactively immunizing themselves against criminal charges. The Constitution (remember that quaint old document) says that the government can’t pass retroactive laws. But who cares? The constitution has been dead for a long time.

  5. Jim September 26, 2006 at 10:35 pm #

    My recollection is that the Constitution has been interpreted in the past to prohibit retroactive criminalization. The courts have not consistently hewn to this – if my memory is right, this was one of the outrages of the Lautenberg gun law passed in 1996.

    What Bush seems to want is retroactive de-criminalization.

    If he was proposing it for the millions of people busted for marijuana possession over the last few years, I would think it was a fine idea.

    But every study I have seen indicates that torture is more harmful than marijuana.

    So I don’t want to see torture retroactively decriminalized.

  6. MarkN September 27, 2006 at 12:23 am #

    Article I. Section 9: No Bill of Attainder or ex post facto Law shall be passed.

    While we might like retroactive decriminalization of anti-drug laws and not like it for torture, the wording is pretty clear. Might have to amend the Constitution, assuming, again, that anyone pays any attention to it.

  7. Ryan September 27, 2006 at 11:33 am #


    After following this dismal debate for some time I have a simple solution borrowed from History that will save all parties a lot of time in negotiations and give our beloved and brave president “all the tools he needs to fight global terrorism”. Give him Article 58. I realize that this old piece of Soviet legislation was passed after Trotsky was exiled which might upset the neocons, but I think the flexibility it provides should end the debate once and for all.

  8. Jim September 27, 2006 at 12:45 pm #

    Ryan – that is an excellent idea – -and an excellent link.

    Article 58-10 – “anti-Soviet propaganda and agitation” – might be especially germane to these times.

    I suppose Bush could easily persuade Congress to expand the definition of “enemy combatant” to include anyone who suggests that Bush often looks whacked out of his mind during press conferences.

  9. Ryan September 27, 2006 at 3:19 pm #


    Thank you, it is a very fine website. My compliments to Mr. Cunningham.

    This really is a very flexible law. As you note, Art. 58-10 has a lot of uses and I’ll add Art 58-8 as well. Check this out.
    “58-8. The perpetration of terrorist acts, directed against representatives of Soviet authority or activists of revolutionary worker’s and peasants’ organizations, and participation in the performance of such acts, even by persons not belonging to a counterrevolutionary organization, shall be punishable by–

    measures of social defense, indicated in article 58-2 of this code. [6 June 1927 (SU No 49, art. 330)].”
    [Emphasis added]
    Note that “terrorism” isn’t strictly define so as to allow the greatest amount of latitude for our federal defenders. Afterall, if you are with Bush you have nothing to fear.

    I think that pretty well nails it. When it comes to tools to fight “terrorism” this legislation is the “Ace Hardware” version.

    Do you think with some minor changes in the names we used could get Sean Hannity and the hanniots to start agitating for it?

  10. Ryan September 27, 2006 at 3:21 pm #

    Damnit! Correction in the last sentence. Should read

    “Do you think with some minor changes in the names used we could get Sean Hannity and the hanniots to start agitating for it?”

  11. Jim September 27, 2006 at 3:53 pm #

    Yes, it would not surprise me if Stalin tended to define “terrorism” broadly.

    I looked again at the Soviet criminal code and came across a provision that, if enacted, could help rein in some of the abuses in Washington.

    This is from Article #151 – “Sexual relations with persons not having attained sexual maturity, linked with corruption or satisfaction of sexual urges in perverted forms–
    deprivation of liberty for a term up to eight years.”

    If that “linked with corruption” phrase was interpreted correctly, it would be possible to jail most of the people on Capitol Hill when they congressed among themselves.