{"id":2842,"date":"2011-06-21T18:13:31","date_gmt":"2011-06-21T23:13:31","guid":{"rendered":"http:\/\/jimbovard.com\/blog\/?p=2842"},"modified":"2011-06-21T18:13:31","modified_gmt":"2011-06-21T23:13:31","slug":"bush-torture-and-the-rule-of-law","status":"publish","type":"post","link":"https:\/\/jimbovard.com\/blog\/2011\/06\/21\/bush-torture-and-the-rule-of-law\/","title":{"rendered":"Bush, Torture, and the Rule of Law"},"content":{"rendered":"

from the March issue of Freedom Daily<\/a><\/strong>….<\/p>\n

Bush, Torture, and the Rule of Law<\/strong>
\nby James Bovard<\/p>\n

Last November, George W. Bush\u2019s 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\u2019s waterboarding of Khalid Sheikh Mohammed, he responded, \u201cDamn right.\u201d Six months before his memoir was released, in a speech in Grand Rapids, Michigan, he told the audience, \u201cYeah, we water-boarded Khalid Sheikh Mohammed. I\u2019d do it again to save lives.\u201d <\/p>\n

There\u2019s 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. <\/p>\n

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\u2019s torture policies may have been based on the dictum of Richard Nixon: \u201cWhen the president does it, that means that it is not illegal.\u201d <\/p>\n

Yet, President Obama\u2019s 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 \u201cmost powerful people in the world\u201d exemption from the rule of law. <\/p>\n

Bush\u2019s 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. <\/p>\n

When Bush was pressed by NBC\u2019s Matt Lauer in 2006 about the use of brutal interrogation methods, he replied, \u201cWhatever we have done is legal…. We had lawyers look at it and say, \u2018Mr. President, this is lawful.\u2019\u201d But Bush\u2019s legal lackeys also proclaim that the president\u2019s command is the highest law. <\/p>\n

Bush recited denials on torture even after the evidence of his administration\u2019s deceits were already overwhelming. From early 2005 onward, he repeatedly declared that the United States did not use rendition \u2014 the transporting of terror suspects to other countries where they are tortured. He told the New York Times in January 2005 that \u201ctorture is never acceptable, nor do we hand over people to countries that do torture.\u201d Doing so would be a federal crime. <\/p>\n

But the evidence of CIA \u201ctorture taxis\u201d 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: \u201cWe operate within the law and we send people to countries where they say they are not going to torture people.\u201d But then why would the United States go to the trouble of kidnapping people \u2014 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 \u2014 and turning them over to governments the United States has long denounced for using torture? <\/p>\n

While Bush bears ultimate blame for the U.S. embrace of torture, Vice President Cheney\u2019s team often drove the policy. The Washington Post reported in 2007 that starting in January 2002 \u201cCheney turned his attention to the practical business of crushing a captive\u2019s will to resist. The vice president\u2019s office played a central role in shattering limits on coercion in U.S. custody.\u201d The Post noted, \u201cCheney and his allies … pioneered a novel distinction between forbidden \u2018torture\u2019 and permitted use of \u2018cruel, inhuman or degrading\u2019 methods of questioning.\u201d The Geneva Conventions, which are binding under U.S. law, make no such distinction. <\/p>\n

Redefining \u201ctorture\u201d <\/p>\n

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 \u201cequivalent in intensity\u201d to \u201corgan failure … or even death.\u201d 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. <\/p>\n

Bush\u2019s 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 Guant\u00e1namo 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 Guant\u00e1namo detainees, noted that in one case \u201cthe [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 \u2018continuing detention.\u2019\u201d <\/p>\n

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 Guant\u00e1namo was a sham and that officers were pressured to find defendants guilty. Abraham noted, \u201cWhat purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence.\u201d 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, \u201cIn very few instances would you find very specific information from which you could conclude [someone] was an enemy combatant.\u201d <\/p>\n

Bush endlessly reminded listeners that \u201cthe U.S. does not torture\u201d and that \u201ctorture is not an American value.\u201d But \u201cWhat is torture?\u201d is the Bush version of Pontius Pilate\u2019s question, \u201cWhat is the truth?\u201d He appeared to be using the definition of torture crafted by Justice Department official John Yoo: if detainees weren\u2019t maimed or killed, they weren\u2019t 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. <\/p>\n

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, \u201cThe 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.\u201d White House press spokesman Tony Snow agreed that this law makes Bush the \u201cfinal arbiter on torture.\u201d <\/p>\n

Systematic failure <\/p>\n

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\u2019s legislative wish list. The Boston Globe reported in 2006 that \u201cbecause of the Bush administration\u2019s restrictive policy on sharing classified information with Congress, very few of the people engaged in the debate will know what they\u2019re talking about.\u201d Sen. Jeff Sessions (R-Ala.) epitomized the prevailing righteous ignorance when he declared, \u201cI don\u2019t know what the CIA has been doing, nor should I know.\u201d The less they knew, the easier it was for congressmen to deny government wrongdoing. <\/p>\n

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) \u2014 which retroactively decriminalized torture. <\/p>\n

Recalling an old-time Southern segregationist campaign, the Republican Party portrayed any congressmen who failed to vote for the MCA as a \u201cterrorist lover.\u201d House Speaker Dennis Hastert (R-Ill.) claimed that Democrats had \u201cvoted in favor of new rights for terrorists,\u201d and House Majority Leader John Boehner declared that Democrats \u201cvoted against bringing the most dangerous terrorists to justice.\u201d The National Republican Senatorial Committee denounced incumbent Democrats who voted against suspending habeas corpus for having \u201csided with trial lawyers and terrorists.\u201d After Bush signed the bill, a Republican National Committee press release was headlined, \u201cDemocrats would let terrorists free.\u201d <\/p>\n

At a \u201cTexas Victory Rally\u201d on Oct. 30, 2006, Bush declared, \u201cWhen 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.\u201d Bush coached the audience to respond to his questions as if the event were a giant DARE rally. The president asked, \u201cWhen it comes to questioning terrorists, what\u2019s the Democrats\u2019 answer?\u201d The audience roared, \u201cJust say no!\u201d <\/p>\n

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\u2019s motion to get justice and to discover the details of the U.S. government\u2019s role in his horror torture trip to Syria. Obama\u2019s Justice Department told the court that permitting discovery in Arar\u2019s case could result in unfairly exposing or scrutinizing \u201cthe motives and sincerity of the United States officials who concluded that petitioner could be removed to Syria.\u201d The Obama administration extended sovereign immunity to cover the reputation of torturers and enablers of torture. <\/p>\n

Obama\u2019s 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 Guant\u00e1namo. (Ironically, the Justice Department had trumpeted its role in convicting football star Michael Vick after he was accused of torturing dogs.) <\/p>\n

Obama vigorously opposed proposals for a \u201ctruth commission\u201d to investigate and expose the extent of U.S. interrogation abuses in the post-9\/11 era. Jameel Jaffer, director of the ACLU\u2019s national security program, observed that the Obama administration\u2019s position is that \u201cthe greater the abuse, the more important it is that it should remain secret.\u201d <\/p>\n

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 \u2014 which prohibits cruel and unusual punishment \u2014 must be repealed. <\/p>\n

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).<\/p>\n","protected":false},"excerpt":{"rendered":"

from the March issue of Freedom Daily…. Bush, Torture, and the Rule of Law by James Bovard Last November, George W. Bush\u2019s 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\u2019s waterboarding of Khalid Sheikh […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[22,659,10,17,11,662,38,669,657,12,41],"class_list":{"0":"post-2842","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"hentry","6":"tag-attention-deficit-democracy","8":"tag-bush","9":"tag-elective-dictatorship","10":"tag-justice-department","11":"tag-lying","12":"tag-obama","14":"tag-rule-of-law","15":"tag-torture","16":"tag-war-crimes"},"yoast_head":"\nBush, Torture, and the Rule of Law - James Bovard<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/jimbovard.com\/blog\/2011\/06\/21\/bush-torture-and-the-rule-of-law\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bush, Torture, and the Rule of Law - James Bovard\" \/>\n<meta property=\"og:description\" content=\"from the March issue of Freedom Daily…. 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The Wall Street Journal called Bovard \"the roving inspector general of the modern state\" and Washington Post columnist George Will called him a \"one-man truth squad.\" His 1994 book, Lost Rights: The Destruction of American Liberty, received the Free Press Association\u2019s Mencken Award as Book of the Year. His Terrorism & Tyranny won the Lysander Spooner \"Best Book on Liberty in 2003\" award. He received the Thomas Szasz Award for Civil Liberties work, awarded by the Center for Independent Thought and the Freedom Fund Award from the Firearms Civil Rights Defense Fund of the National Rifle Association. 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