Free Press Releases
******************************************************************Friday 18 June 2004
The Torturer-in-Chief
By Marjorie Cohn
t r u t h o u t | Perspective
The teflon that has enveloped
George W. Bush is chipping off. Arriving in
office with the promise of a "humble"
foreign policy, Bush was sitting pretty at the
beginning of his term. But George’s
honeymoon has turned sour.
From the first day of his
presidency, the neocons in Bush’s cabal
determined to "stabilize" Iraq for U.S.
corporate investment. Bush had his own motives to
"git" Saddam for his would-be hit on
George I. The tragedy of September 11 gave them
just the opportunity they’d been waiting
for.
Cloaking themselves in the
"War on Terror," Bush and his minions
methodically wove an intricate web of deception
to convince the American people that Saddam was
about to launch the "mushroom cloud,"
ending civilization as we know it.
It was our mission, Bush
preached, to save the Iraqis from
Saddam-the-torturer. But a telling phrase in
Bush’s January 2003 State of the Union
Address should have prepared us for the emergence
of Bush-the-torturer.
"All told, more than 3,000
suspected terrorists have been arrested in many
countries, and many others have met a different
fate," Bush said. "Let's put it this
way," he clarified, "they are no longer
a problem for the United States and our friends
and allies."
This was an implicit admission
by Bush that he had sanctioned the summary
execution of the "many others."
Gradually, it became clear
there were no weapons of mass destruction. This
week, the 911 Commission reported there is no
credible evidence Saddam Hussein and al Qaeda
cooperated in the 911 attacks. Yet, this same
week, Dick Cheney intoned that Saddam "had
long-established ties with al Qaeda." More
disinformation.
Americans soon began to tire of
Operation "Iraqi Freedom." Most feel
there was no good reason to suffer the deaths of
nearly 1000 American soldiers and thousands of
Iraqis, no need to spend billions of precious
taxpayer dollars on the Iraqi quagmire.
In the face of waning support
for the war and the impending U.S. election, the
Bushies devised a strategy to hand-over
"sovereignty" to the Iraqi people on
June 30. Notwithstanding the titular end of the
occupation, 138,000 American troops will remain
on the ground in Iraq. Although the violence in
Iraq has intensified, with Iraqis fighting both
the occupiers and other Iraqis, the June 30 date
stands firm.
Meanwhile, the photographs
began to emerge. The world was treated to images
of pyramids of naked Iraqis, forced masturbation,
unmuzzled dogs snarling at prisoners a few inches
away, bleeding and dead Iraqis.
Major General Antonio
Taguba’s report was released. It documented
sodomy with a chemical light and electric
wires attached to the penis of a nude hooded
prisoner.
As fingers began to point up
the chain-of-command, prisoners were released and
commanders reassigned. The cover-up got underway.
Donald Rumsfeld called it
"abuse," not "technically"
torture. A few bad apples. Nothing too serious.
Seven low-ranking soldiers were
quickly charged with crimes under the Uniform
Code of Military Justice - the fall guys and
gals.
And then "the leaks"
began. The photographs and testimonials of
torture had empowered those on the inside to
contact the media with the bombshells. We learned
that Bush’s hired guns had secretly penned
two tomes, one for the Defense Department and the
other for the Justice Department. Both documents
purport to justify the use of torture under the
President’s war-making power,
notwithstanding the Constitution’s clear
mandate that only Congress can make the laws.
The Congressional powers
enumerated in the Constitution: "Congress
shall have the power - to define and punish -
offenses against the law of nations; to declare
war - and make rules concerning captures on land
and water; - [and] to make rules for the
government and regulation of the land and naval
forces."
As commander-in-chief, however,
the President has a "constitutionally
superior position" to Congress, according to
the memo written for the Defense Department. It
seems the president’s men have now taken on
the tripartite Separation of Powers doctrine
enshrined in the Constitution.
Their constitutional apostasy
flies in the face of the landmark ruling in the
Korean War case, Youngstown Sheet & Tube Co.
v. Sawyer, where the Supreme Court held, "In
the framework of our Constitution, the
President’s power to see that the laws are
faithfully executed refutes the idea that he is
to be a lawmaker." For, as the Court noted,
"The Founders of this Nation entrusted the
law making power to the Congress alone in both
good and bad times."
Try as they might, the lawyers
commissioned by Donald Rumsfeld and presidential
counsel Alberto R. Gonzales were unable to find a
loophole in the Torture Convention’s
absolute proscription on torture. "No
exceptional circumstances whatsoever, whether a
state of war or a threat of war, internal
political instability or any other public
emergency, may be invoked as a justification for
torture," according to the Convention
Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment.
The Torture Convention,
ratified by the United States, is part of the
supreme law of the land under the Constitution.
Congress implemented our obligations under this
treaty by enacting the Torture Statute, which
provides 20 years, life in prison, or even the
death penalty if death results from torture
committed by a U.S. citizen abroad. The USA
PATRIOT Act added the crime of conspiracy to
commit torture to the Torture Statute.
Bush’s lawyers used
tortured reasoning to opine that the Torture
Statute cannot be utilized to prosecute Americans
in Guantanamo because it lies within the
"territorial jurisdiction of the United
States, and accordingly is within the United
States."
The Bush administration has
hypocritically taken the opposite position in
denying the Guantanamo prisoners access to U.S.
courts to challenge their indefinite detention.
The Torture Convention
prohibits the intentional infliction of severe
physical or mental pain or suffering on a person
to (a) obtain a confession, (b) punish him, or
(c) intimidate or coerce him based on
discrimination of any kind. To violate this
treaty, the pain or suffering must be inflicted
"by or at the instigation of or with the
consent or acquiescence of a public official or
other person acting in an official
capacity."
Ashcroft’s legal
eagles redefined torture, narrowing it to require
the infliction of physical pain "equivalent
in intensity to the pain accompanying serious
physical injury, such as organ failure,
impairment of bodily function, or even
death." For mental pain or suffering, they
would require "significant psychological
harm of significant duration, e.g., lasting for
months or even years."
The Istanbul Protocol of 9
August 1999 is the Manual on the Effective
Investigation and Documentation of Torture and
Other Cruel, Inhuman or Degrading Treatment or
Punishment. It sets forth international
guidelines for the United Nations High
Commissioner for Human Rights.
Included in the Protocol’s
list of torture methods are rape, blunt trauma,
forced positioning, asphyxiation, crush injuries,
humiliations, death threats, forced engagement in
practices violative of religion, and threat of
attacks by dogs. The photographs and reports from
prisoners in Abu Ghraib include all of these
techniques.
Moreover, the Defense
Department analysis maintained that a torturer
could get off if he acted in "good
faith," not thinking his actions would
result in severe mental harm. If the torturer
based his conduct on the advice in these memos,
he would, according to this argument, have acted
in good faith.
Who authored the
"whorific" rationalizations for the
Justice and Defense Departments? A Washington
Post editorial called it "a shocking and
immoral set of justifications for torture."
William J. Haynes II, Bush’s nominee for a
lifetime seat on the Fourth Circuit Court of
Appeal, oversaw the preparation of the report for
the Department of Defense. And another Bush
nominee for a federal judgeship, former Assistant
Attorney General Jay S. Bybee, now a permanent
judge on the Ninth Circuit Court of Appeals,
drafted the document for the Department of
Justice. How cozy.
Not only has Bush received
legal [sic] advice on how to get around our
obligations under the Torture Convention and the
Torture Statute. His lawyer Alberto Gonzales,
opining on whether to apply the Geneva
Conventions to Taliban and al Qaeda prisoners,
told Bush the "new paradigm" of the war
on terror "renders obsolete Geneva’s
strict limitations on questioning of enemy
prisoners and renders quaint some of its
provisions."
Evidently the Bush
administration thinks prohibitions on torture,
and Congress’ lawmaking authority in our own
Constitution, are quaint.
Gonzales, who is often
mentioned as a prospective Bush nominee for the
Supreme Court, went on to assure his boss that
"your determination [to bypass the Geneva
Conventions] would create a reasonable basis in
law that Section 2441 [the War Crimes Statute]
does not apply, which would provide a solid
defense to any future prosecution." So
Bush’s own decision to bypass Geneva gives
him a defense to violating Geneva.
One year ago, Bush repudiated
torture in a statement on the United Nations
International Day in Support of Victims of
Torture: "Torture anywhere is an affront to
human dignity everywhere," he assured us
disingenuously.
Trying to calm the mushrooming
public relations disaster occasioned by the
leaking of the legal opinions, Bush said
flippantly, "The instructions went out to
our people to adhere to law. That ought to
comfort you." But last week, when Bush was
asked whether he had seen the Justice Department
memo, he answered, "I don’t
remember."
Rumsfeld, who, according to a
Defense Department spokesman, approved 24 of 35
interrogation techniques in a classified
directive, refuses to state publicly what he
sanctioned. Ashcroft defied Congressional
requests to release the legal policy memo
prepared at his instigation.
"There are some extremely
damaging documents around, which link senior
figures to the abuses," according to former
New York Bar Association chairman Scott Horton,
who is advising dissenters at the Pentagon. He
maintains, "The biggest bombs in this case
have yet to be dropped."
If Bush knew or should have
known about the torture, and failed to stop or
prevent it, he could be liable for "command
responsibility" if prosecuted under the War
Crimes Act or the Torture Statute. A federal
court in Miami in July 2002 held two retired
Salvadoran generals liable for torture, even
though neither had perpetrated or ordered it.
On January 21, 2004, a prisoner
gave a sworn statement to the Washington Post
about his experience in Abu Ghraib. He reported
being beaten on his kidneys and ear until he lost
consciousness, being tied to the window with his
hands behind his back until he lost
consciousness, and being sodomized with a stick
about 2 centimeters into his anus.
Sgt. Greg Ford, a California
National Guardsman, said he repeatedly revived
prisoners who had passed out after being choked
in an Iraqi police station. Ford saw a soldier
stand on the back of a handcuffed detainee’s
neck and pull his arms until they popped out of
their sockets. "Twice I had to pull burning
cigarettes out of detainee’s ears,"
according to Ford.
Another former National
Guardsman was choked and beaten to the point of
brain damage, while acting as a detainee being
beaten by fellow military policeman during
training at Guantanamo.
These accounts do not describe
conduct befitting a civilized country.
George W. Bush came into the
White House - albeit through the back door -
pledging to restore honor to the White House.
Instead, he has dishonored America by leading us
into an illegal war under false pretenses.
In light of the Defense and
Justice Department documents, there is probable
cause to believe that the commander-in-chief
condoned the methodology of torture to secure
information from prisoners.
The Constitution mandates the
impeachment of a President for high crimes and
misdemeanors. There is no higher crime than a war
crime. Willful killing, torture and inhuman
treatment constitute grave breaches of the Geneva
Convention, which are considered war crimes under
The War Crimes Act of 1996. Even if Bush’s
lawyers could successfully parse the meaning of
torture, they cannot deny that the atrocities
we’ve seen constitute inhuman treatment.
Bush impliedly admitted
sanctioning willful killing, torture and inhuman
treatment in his 2003 State of the Union Address.
He would be liable under the doctrine of command
responsibility for war crimes committed in Iraq
as well. The captain goes down with his ship. It
is time to call for the Impeachment of George W.
Bush.
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