http://www.truthout.org/docs_04/060904A.shtml

Bush the Would-Be Torturer

By 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 ***** 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.

___________________________________________________________

Harry