Bush the Would-Be Torturer
Marjorie Cohn
t r u t h o u t | Perspective
Wednesday 09 June 2004
It's all falling into place. The Wall Street
Journal has revealed that Bush's lawyers told him he can order that torture be
committed with impunity. It is now official that George W. Bush is above the
law.
As horror after horror emerged from Abu Ghraib
prison, Americans exclaimed that this is not behavior befitting our great
country. Many wondered how such atrocities could be perpetrated by United
States citizens. We hoped that this was simply the behavior of a few bad apples
run amok. But the dots have now been connected for us. Torture is sanctioned
policy that comes from the top.
In a classified report prepared for Donald
Rumsfeld in early 2003, a working group of lawyers appointed by the Defense
Department's general counsel, William J. Haynes II, advised that Bush is not
bound to follow United States laws that prohibit torture. Government agents who
torture under orders from Bush won't be successfully prosecuted, according to
the report, which is scheduled to be declassified in 2013.
Never mind that the United States ratified the
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, which makes it part of the supreme law of the land under our
Constitution. Never mind that this treaty specifies that torture is never
permitted, even in times of war. Never mind that Congress implemented this
treaty by enacting a Torture Statute providing for 20 years, life in prison or,
even the death penalty when the victim dies, for U.S. soldiers or civilians who
engage in torture. And never mind that torture constitutes a war crime, for
which our officials can be punished.
The Bush administration lawyers have created
their own jurisprudence, which effectively holds the president is not bound to
follow the law.
Extrapolating from the "necessity"
defense in criminal law, Bush's lawyers counsel, in effect, that the end
justifies the means. It's the proverbial ticking time bomb scenario. Torture
the bastard to avert a terrorist attack. But not only is this illegal; it
doesn't work. Senator John McCain says the tortured will rarely provide reliable
information. This position has been affirmed by many of the prisoners released
from Abu Ghraib who said they made up information to get the torture to stop.
Bush's legal experts also rehabilitated the
"superior orders" defense. It didn't work for the Nazis at Nuremberg
or Lt. William Calley who was prosecuted for the My Lai Massacre in Vietnam. That
defense can only be asserted when the defendant was following a lawful order. An
order to commit torture would be unlawful, as it would violate the Convention
Against Torture and the Torture Statute.
But Haynes' team assures Bush his orders would
be legal because he's the president and he's the highest law in the land
(notwithstanding the Constitution, Congress and the Supreme Court). Indeed, one
of the lawyers who prepared the report said the intention of the political
appointees heading the working group was to realize "presidential power at
its absolute apex."
The report was written in response to concerns
by senior officers at the U.S. prison at Guantanamo Bay, Cuba. They advocated
"a rethinking of the whole approach to defending your country when you
have an enemy that does not follow the rules." Of course, we needn't
follow the rules because we're the good guys.
Remember that in the course of trying to
convince the American people that war with Iraq was necessary, Bush marshaled
accusations that Saddam Hussein had tortured his people. But we have God - and
Bush - on our side, so we're allowed to torture.
In late 2002, after the Washington Post revealed
allegations of behavior of U.S. commanders that might amount to torture in
Afghanistan, Human Rights Watch Executive Director Kenneth Roth wrote to Bush,
saying that immediate steps must be taken "to clarify that the use of
torture is not U.S. policy." Roth reminded Bush that, "U.S. officials
who take part in torture, authorize it, or even close their eyes to it, can be
prosecuted by courts anywhere in the world." The prohibition against
torture is so basic, it is considered jus cogens, and is thus binding on all
countries, even if they haven't ratified the Torture Convention.
The Bush administration has been emboldened to
itself engage in serious human rights violations since the horrific attacks of
September 11. Cofer Black, head of the CIA Counterterrorist Center in
September, 2002, testified at a joint hearing of the House and Senate
intelligence committee: "This is a very highly classified area, but I have
to say that all you need to know: There was a before 9/11, and there was an
after 9/11. After 9/11 the gloves came off." If Bush has his way - and the
most electoral votes in November - those gloves will stay off.
There are some striking contradictions between
Bush administration policy in the "war on terror" and the working
group's rationalizations for Bush to authorize torture. The lawyers who
prepared the report admitted that the Torture Statute applies to Afghanistan.
But they declared it does not cover our actions
in Guantanamo because it is within the "territorial jurisdiction of the
United States, and accordingly is within the United States." Yet, the Bush
administration has denied these prisoners access to U.S. courts to challenge
their detention precisely by claiming that the U.S. is not sovereign over Guantanamo
Bay. Either the United States has jurisdiction over Guantanamo or it doesn't. You
can't have it both ways.
The Ninth Circuit Court of Appeals decided that
U.S. courts do have jurisdiction to hear the Guantanamo prisoners' complaints. That
court was extremely alarmed at the government's assertion during oral argument
that these prisoners would have no judicial recourse even if they were claiming
the government subjected them to acts of torture. The Ninth Circuit said:
"To our knowledge, prior to the current detention of prisoners at
Guantanamo, the U.S. government has never before asserted such a grave and
startling proposition." The court said this was "a position so
extreme that it raises the gravest concerns under both American and international
law."
By the end of June, the Supreme Court will
decide whether U.S. courts have jurisdiction over the Guantanamo prisoners.
In December 2002, the United Nations General
Assembly adopted a new anti-torture treaty after 10 years of negotiation. The
Optional Protocol to the U.N. Convention against Torture will allow independent
international and national experts to conduct regular visits to places of
detentions within the States Parties, to assess the treatment of detainees and
make recommendations for improvement. The treaty was adopted by a vote of 127
in favor, 4 against and 42 abstentions. The United States was joined by
Nigeria, the Marshall Islands and Palau in opposing this treaty.
The legal advice which would permit Bush to
order torture without sanction is consistent with his policy to ignore or
denounce treaties and federal laws that don't comport with his program. Bush's
unprecedented act of "unsigning" the International Criminal Court
statute, and coercing Security Council resolutions and bilateral immunity
agreements, are meant to ensure that neither he nor his top advisors ever
become defendants in war crimes prosecutions. But under the well-established
laws of the United States, Bush would be a war criminal if he authorizes torture
as recommended in the classified report.
Marjorie Cohn, is a contributing editor to
t r u t h o u t, a professor at Thomas Jefferson School of Law,
executive vice president of the National Lawyers Guild, and the U.S.
representative to the executive committee of the American Association of
Jurists.
http://www.truthout.org/docs_04/060904A.shtml