Revolution #61, September 17, 2006


Bush Calls for Fascist Changes to Laws on Trials and Torture

On Wednesday, September 6, Bush stood before cameras in the East Room of the White House and demanded that Congress pass the Military Commissions Act of 2006, which would officially approve sweeping changes in U.S. law—legalizing and authorizing exactly the kinds of torture the U.S. carried out against prisoners at Abu Ghraib, and officially stripping away basic legal rights. These changes have ominous and fascist implications—not only for detainees currently held by the U.S. government as so-called “enemy combatants,” but for everyone.

Bush almost bragged about things that had been so fiercely denied: that, yes, his government maintained an international network of secret interrogation centers. This was admitted, in order to press things further—to openly justify the forms of torture being carried out on his personal orders, and to demand that Congress now write into U.S. law the presidential power to seize, brutalize, condemn, and even execute those captives, and legally protect those who carry out the brutality from prosecution.

In other words, George Bush is demanding that the torture and crude denial of the basic legal rights that U.S. agents have been carrying out in the shadows now become new, acknowledged legal norms and precedents for whatever comes next for the U.S. and its empire.

For all these reasons, it is important to look more closely at what Bush is demanding Congress rush to approve in the next few weeks.

Formalizing the Denial of Very Basic Legal Rights

The Military Commissions Act of 2006 now heading for Congress would authorize and legalize a new system for trying “alien unlawful enemy combatants.” In this system, the fate of prisoners would be decided by a military tribunal.

These special Military Commissions would operate under rules and principles that depart sharply from the legal norms that have been basic to U.S. law from its very beginning.

In these commissions, prisoners would have no right to “confront their accusers.” They would not have the right to hear witnesses speaking against them. They would not have the right to examine the evidence presented against them. Prisoners would not even have the legal right to be present at their hearing. What a prisoner would be allowed to hear and see would all be decided by the U.S. military judge hearing the case—and obviously the prisoner will not even be told what they were not being allowed to know about.

In short, people could be condemned of crimes—and even be executed—without ever having a chance to even see evidence against them, let alone the ability to make any serious defense.

If prisoners are condemned by a military “jury of their captors”—what is left of the principle (supposedly guaranteed in the U.S. Constitution) that people have a right to an “impartial jury”?

Who could be thrown before these military commissions? The bill says the commissions are for “alien unlawful enemy combatants.” Georgetown Law Professor Martin Lederman told Revolution that legally, the concept of “alien” includes “millions of lawful permanent resident aliens” within the U.S. And the term “enemy combatants” has been defined, in this bill, to apply to forces and organizations “including but not limited to al Qaeda, the Taliban, any international terrorist organization, or associated forces” (emphasis ours).

In other words, military lynch law approved today, in the name of fighting al Qaeda today, can explicitly be used against other forces tomorrow.

And in the language of this bill, the term “unlawful enemy combatant” is extended to apply to someone who has “supported hostilities in aid of such a force or organization so engaged.” No one can know yet exactly what this government will claim this means—but there are certainly justified concerns that the government might claim the legal right to seize someone who politically “supported” forces fighting the U.S. around the world (even if they did not themselves engage in actual “hostilities”).

All of this holds very dangerous implications. Charles Gittings of the Project to Enforce the Geneva Conventions (PEGC) told Revolution: “The basic concept is quite simple: if Bush says you are enemy combatant you are an enemy combatant. The gist of their legal arguments is that if they designate a two-year-old girl in Chicago a ‘terrorist,’ according to them, that decision is unreviewable and she’s a terrorist just because the President says so. Beyond that you get into the concept of ‘material support.’ What it boils down to in practice is they only do it to people that they can plausibly allege have something to do with terrorism, but once they do that, the effective standards are guilt by association and guilty until proven innocent.”

In every detail, Bush’s Military Commissions Bill of 2006 would set up a nightmarish legal charade—which would allow this government to legally railroad and, if it then chose, execute its captives—and which would enshrine such fascistic legal standards into the precedents and assumptions of U.S. law.

Legitimizing and Legalizing Torture

In a particularly ominous development, Bush’s new law would allow evidence and statements extracted from prisoners through “coercion” to be used against them in court. Historically, the use of confessions and evidence extracted under torture was considered bitter outrages of the theocratic Inquisition of the Middle Ages. It was portrayed as the identifying hallmark of police states. And in U.S. law, such “evidence” has historically been considered “tainted” and has not been admissible in court (even while in reality, police have relentlessly railroaded people into prison by “beating confessions out of them”). But officially, on paper at least, such forced confessions have been specifically inadmissible in both U.S. and international law.

In his September 7 speech, Bush described in great detail how one U.S. captive had refused to talk and how the CIA had used “alternative set of procedures” to interrogate him. A New York Times article on his speech, which questioned many of the claims, reported that Human Rights Watch gave the Times a list of 14 men who the organization believes have been secretly detained since the Sept. 11 attacks and whose whereabouts are still unknown. “One of the men,” the Times reported, “Ibn al-Shaykh al-Libi, is believed to have given false information about links between Iraq and Al Qaeda after CIA officials transferred him to Egyptian custody in 2002. Mr. al-Libi’s statements were used by the Bush administration as the foundation for its claims that Iraq trained Qaeda members to use biological and chemical weapons. It emerged later that Mr. al-Libi had fabricated these stories while in captivity to avoid harsh treatment by his Egyptian captors.” (“Questions Raised About Bush’s Primary Claims in Defense of Secret Detention System,” 9/8/06). This example illustrates that the question is not—as torture advocates like attorney Alan Dershowitz argue—whether evidence coerced by torture can ever be morally used to “save lives.” The question is whether Bush will be allowed to lie and torture in order to destroy lives.

With the swagger of a mobster denying he ordered a hit, Bush declared: “I want to be absolutely clear with our people, and the world: The United States does not torture. It’s against our laws, and it’s against our values. I have not authorized it—and I will not authorize it.” In short, if I ordered it, it’s not torture.

Bush’s proposed law forbids some specific, carefully defined torture techniques for interrogations. But the very process of defining do’s and don’ts for legal torture is itself part of the process of legitimizing and legalizing torture. Ten pages of Bush’s Military Commissions bill would change existing U.S. law to legalize the brutal interrogation techniques that the CIA and military have been using—including exposure to extremes of heat and cold, simulated drowning by “waterboarding,” painful “stress positions,” and sleep deprivation. These actions have been illegal and punishable felonies up until now under the 1996 War Crimes Act.

Bush, Rumsfeld, and their various legal apologists like John Yoo have crudely redefined torture, to claim that their brutal “alternative set of procedures” should no longer be considered torture, or treated as illegal. Barbara Olshansky said (Democracy Now, Sept 7) that this new definition “says torture only occurs when someone’s at the risk of immediate full organ failure or death.”

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It is nightmarish for the people of the world to have these armies of killers and torturers unleashed on them. Profound injustices and brutalities have been perpetrated all over the globe—in the prison camps from Iraq’s Abu Ghraib to Afghanistan’s Baghram airbase to Cuba’s Guantánamo Bay. And to have the U.S. Congress formally approve and codify such a legal system with such shameful and fascist legal standards would have far-reaching implications—not just in the immediate treatment of those thrown before those commissions, but in what this empire imposes as its standard, approved and institutionalized norms and methods of crushing anyone—internationally or within its borders—that it perceives as an obstacle to its agenda.

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