The Torture Follies

Revelations concerning the use of torture against detainees held by the US in the so-called global war on terror (GWOT) have been slowly but steadily leaking out over the past few years. The pace seems to have quickened in the past few weeks, so much so that in recent days the Bush Administration has been rather shockingly upfront in confirming various allegations about the CIA's use of waterboarding (aka water-torture) as an interrogation technique, perhaps as a way of getting out in front of and controlling what appears to be an evolving scandal. On Tuesday CIA Director Michael Hayden confirmed during Congressional testimony that the CIA had indeed waterboarded three detainees, but he also insisted that since those earlier interrogations the "technique" had not been used again. However, given this Administration's record of veracity on the question of torture, it would only seem prudent to take Hayden's assertions with a grain (or several) of salt.

Today the plot thickened even further. Statements from the very top of the Administration, from Tony Fratto in the White House, and from newly minted Attorney General Michael Mukasey, asserted that not only was waterboarding not torture, but that it was actually legal! Moreover, Fratto asserted that the President retained the authority to order its use again should certain conditions be met. The irony here is thicker than mud, as recall that Mukasey faced rather severe specific questioning concerning the legality of waterboarding during his Senate confirmation hearings. One wonders what those Democrats on the Senate judiciary committee who in the end agreed to support Mukasey's confirmation, such as NY's Chuck Shumer, are thinking tonight after his statements today?

All this takes place at a time when the Congress was beginning to feel that it had managed to, if not stop altogether, then at least put the brakes on the Administration's love affair with keeping the torture option available. Passage of the Detainee Treatment Act in 2005 and the Military Commissions Act in 2006--which ban the use of harsh interrogation methods and require U.S. agencies to comply with the Constitution and the Geneva Conventions--would have appeared to have done just that. However, no one should underestimate the willingness of this Administration to ignore the law, simply look at the record of Bush's recent signing statements if you need convincing.

The most ironic and astonishing thing in all this, including the desire by some members of Congress to pass new legislation banning torture, is that torture is indeed illegal (and has been for decades) under US law! Congress did not, and does not need to pass ANY new laws to make torture a crime. Indeed, under existing US and International laws that have full jurisdiction in US courts, those implicated on suspicion of committing or abetting the commission of torture could be indicted and arrested tomorrow by agents of the Justice Department, assuming, that is, that those in the Justice Department with such authority had any intention of actually enforcing these existing laws and fulfilling the oaths they took to do so upon taking office. Clearly Mr. Mukasey had no such intent or he would have immediately opened a criminal investigation of the CIA after Hayden's public admission of the use of waterboarding by the agency, rather than squelching one.

While recent Congressional actions and legislation provide the impression that Congress is intent upon trying to hold the White House accountable on torture, the details are rather more murky. As noted above the prohibition on torture present in US law prior to the Detainee Treatment and Military Commission acts is unequivocal. Torture has been and is illegal, and the US is bound under that existing body of law to prosecute torturers. Now, the Detainee Treatment and Military Commissions acts contain language that either creates a defense for particular individuals implicated in torture, or forgives past violations of the Geneva Conventions, as Michael Ratner has pointed out. So, you be the judge, do these new acts strengthen or attempt to weaken the legal proscription of torture?

The actions of Congress in regard to the torture allegations (now admissions) have been frustratingly similar to its behavior in the face of other Administration wrongdoing, for example, the clear violations of FISA by the President's warrantless spy program. Rather than forcefully hold the administration accountable to existing law, the opposition party in Congress has repeatably sought to accomodate the law breaking so as not to appear "soft" on so-called Homeland Security issues (read terrorism). Thus, we are treated to statements from Congressional Democrats such as Senator Diane Feinstein (CA), "The national debate over torture will end if this amendment to place the CIA under the Army Field Manual becomes law. At that point, all U.S. government interrogations - military and civilian - would be conducted under the same rules and regulations, and eight specific techniques, including waterboarding, would be prohibited.” Feinstein still doesn't seem to understand that it is NOT a legislation problem. Here she falls for one of the Administration smoke-screens, that particular "techniques" need to be individually proscribed. No, the law bans ALL torture, or cruel and degrading treatment, a laundry list of prohibited conduct is not needed, just as murder is murder, regardless of the means used to carry it out. What is it about Feinstein's new legislation that she believes would "end the torture debate?" In deciding to torture detainees the Administration clearly thumbed its nose at the extensive, existing body of law against torture, what is it that makes Feinstein believe that this new bill will have any restraining effect? It won't, this is simply an "easy out" for the spineless Democrats, they can claim to have stood up to Bush on torture without really having done so. And so, undoubtedly, we have not seen the end of the torture debate, or for that matter, the torture.

State of Disgrace

OK, I'll come right out and admit it, I can't watch these spectacles anymore. I'm already on blood pressure medication, and such shameful displays from our government as George Bush's final State of the Union address, would just send my diastolic through the roof. I'll read the transcript and a few choice stories about it after the fact, but sit through it? No, I would sooner have some dental work done sans novocaine.

What honest assessment could conclude other than that the state of our Union is nothing short of catastrophic? It seems now that a substantial fraction of Americans have finally come round to this conclusion, judging from recent polling that suggests upwards of 75% of Americans feel the country is on the wrong track. Disaffection with the status quo can also be seen in the much stronger interest in the Democratic presidential race than that of the Republicans. But, you would not necessarily know this if you simply listened to, and worse yet, believed, any of the drivel coming out of Mr. Bush's mouth the other night. Indeed, given the long, documented record of Bush and Co.'s outright lies, distortions and abuse of the truth, one can fairly ask the question, should the media even be obligated to cover such a pathetic spectacle? For in doing so, a strong argument can be made that they are simply providing a platform for Mr. Bush to continue to "catapult the propaganda" (his words). At any rate, perhaps a compromise would be to agree to cover the speech, but only with proper warning labels; "viewers be advised, this speaker has a long history of really shoveling the shit!"

And what of the Senators, House members, and other select government pooh-bahs in attendance? Is it really their "duty" to applaud, indeed, provide the occasional standing ovation, for this mendacious mediocrity? Was there anything he said that was worthy of praise? The gross overstatement of "success" in Iraq perhaps? A "success" that has destroyed a country, and precipitated the death of upwards of 1 million of its citizens. Worthy of applause? I think not. If I should have found myself so unfortunate as to be present in the House chamber, my hands would have been sore from being sat upon. Shame on any Congress member to applaud such suffering; shame, shame.

This version was really more of the same old nonsense: cut taxes, bring the 9/11 perpetrators to justice (really, again, after abandoning Bin Laden in Tora Bora for the invasion of Iraq)! Democratize the Middle East, blah, blah. Predictably, there was also the usual dose of fear. Perhaps Bush's most audacious attempt to browbeat Americans into giving up yet more of their rights was his "threat" to veto a Congressional extension of the FISA law if it does not also contain retroactive immunity for the telecom giants who aided and abetted Mr. Bush's illegal spying operation. Forgive me, I misspoke, the terrorist surveillance program (sounds a lot nicer that way doesn't it). As Keith Olbermann has eloquently pointed out in a recent commentary, this one is truly astonishing. Bush wants us to believe that he absolutely requires the new FISA to protect us--a claim, by the way, that has been thoroughly debunked, most recently by Richard Clarke--but he's willing to veto it if it doesn't also contain the telecom immunity provisions. So, by his own reasoning, he's willing to put defending the telecoms from expensive litigation ahead of protecting us from terrorists! By immunizing the telecoms Bush is providing a de facto immunity for himself and his cronies in crime. Viewed in that light, such a gambit should come as no surprise to most Americans, it simply evidences the impunity and arrogance which have been the hallmarks of this catastrophic administration.