Revolution #63, October 1, 2006
The Torture Bill: Compromising Your Way To Fascism
This is how fascism comes—with a show of opposition followed by high-profile compromise, and assurances that all is well.
This is how fascism comes, with quiet streets and everyone going about their business.
This is how fascism comes, oh so democratically.
The new bill submitted to the Senate on September 22—and almost certain to be approved within the week—gives the U.S. president chilling new powers.
- The new bill gives Bush the legal power to order any torture techniques which do not rise to the level of “grave breaches” of the Geneva Conventions. As Jonathan Turley, professor of constitutional law at George Washington University, said on MSNBC, this is like telling a teenage boy that he is forbidden to drive over 90 miles an hour; he will then surely drive at 89. In this case, Bush can legally order anything that does not cause protracted loss or impairment of the function of a bodily member or organ or mental faculty. This means that he can and almost certainly will order things that he can claim do not cause permanent damage—only “temporary” disablement, excruciating pain or disorientation, and/or mental breakdown. According to Martin S. Lederman, who teaches constitutional law at Georgetown University, the new bill appears to define “cruel treatment [in a way] that doesn’t cover the CIA techniques.” These “techniques” include sleep deprivation, extreme hypothermia, and “waterboarding”—the practice of bringing a prisoner to the brink of drowning (and one which in fact does sometimes result in death by drowning). And note that the administration has refused to explicitly disavow the use of waterboarding.
- The new bill gives the government the power to use confessions and other testimony derived from such torture as evidence in criminal proceedings. In fact, the new bill will even allow testimony derived from torture that is so extreme that it is now forbidden, so long as that torture occurred before 2005. The new bill also allows hearsay evidence. Jennifer Daskal, the U.S. advocacy director for Human Rights Watch, said that “You create a situation in which someone could be convicted based on a second- or third-hand statement from a detainee during an abusive interrogation.”
- The new bill legally allows the government to hold people indefinitely without a trial. That is, it removes what had been the constitutional right to habeas corpus. The status of prisoners who are deemed to be “enemy combatants” has been and now will continue to be decided by something called “combatant status review tribunals” (C.S.R.T’s), rather than the courts. “The C.S.R.T. is the first time in U.S. history in which the lawfulness of a person’s detention is based on evidence secured by torture that’s not shared with the prisoner, that he has the burden to rebut and without the assistance of counsel,” according to Joseph Margulies, author of Guantanamo and the Abuse of Presidential Power.
- The new bill seems to allow prisoners the right to see the evidence that is being used against them; but many argue that the conditions attached to this are such that prosecutors can prevent defendants from seeing any but the most heavily edited evidence, in the name of national security.
- The new bill forbids anyone to invoke the Geneva Conventions in any civil case or habeas corpus proceedings undertaken against the U.S. government and, according to some experts, it may also forbid this in criminal cases.
- The new bill protects CIA and military personnel from prosecution for any past torture of detainees. And it would protect Bush and his minions from prosecution for having ordered torture.
Lawyers and legal experts across the country condemned the bill. Many were appalled by the moral and constitutional implications. Even the chief defense counsel for the Defense Department’s Office of Military Commissions, Marine Corps Colonel Dwight Sullivan, said that the bill “methodically strips rights” guaranteed by laws and treaties and appears to be unconstitutional.
What is New Here—And Why Now?
To be clear: the U.S. has used torture throughout its history, from Wounded Knee to the Philippines, from Vietnam to El Salvador. What is new here are three things.
First, the use of torture will now be legally codified. No longer will it be winked at, covered up or, on rare occasions, half-heartedly prosecuted. Now it will be perfectly legal, even a moral good. This will inevitably mean that torture will become even more widespread and systematic, and spread from the secret prisons outward.
Second, long-standing constitutional procedures for anyone held in the U.S. legal system—the right to a trial, the right to see the evidence with which you are being accused, the inadmissibility of hearsay and evidence obtained through coercion—are being overturned. This is an immense rupture with the very legal and constitutional foundations of this system. Right now, this “only” applies to the 430 “enemy combatants” held at Guantanamo and the 14,000 other people held in U.S. military prisons abroad. And what logic prevents this next being applied to U.S. citizens as well, if Bush says that they “endanger our safety”?
Third, this aggressive demand that torture be ratified is going along with a renewed theocratic push. “A lot of people in America see this as a confrontation between good and evil, including me,” Bush said on September 12 in an interview session with right-wing commentators and columnists. He went on to claim that his presidency has stirred a “third great [religious] awakening.” As Bush sees it—or at least as he says it—he (and the U.S.) are by definition “good” and, by implication, can do anything they like to the people he deems to be “evil.” If you’re fighting for that view, Bush’s offensive on legalizing torture makes sense.
The political maneuvers accompanying this were both disgusting and ominous. Bush launched this offensive with a high-profile speech on September 6 that not only admitted but bragged about the existence of secret CIA detention centers, filled with people who had been disappeared off the streets of cities around the world. Using the euphemism “alternative procedures” for torture, Bush all but admitted that detainees held in these prisons had been tortured. But he argued that it was all worth it because the tactics had produced valuable intelligence that had “saved American lives.” And then he dared anyone to stop him.
The only takers were Republican senators McCain, Graham, and Warner, and former Secretary of State and U.S. Army General Colin Powell. Their objections were narrow: they worried that this would make the U.S. look bad internationally, and they worried that American soldiers and CIA operatives would be denied the protections of the Geneva Conventions on the basis of “sauce for the goose, sauce for the gander.” Evidently, a week of pressure from Bush and a few cosmetic touch-ups on the legislation did the trick for them.
Actually, Bush and the people around him are hardly unaware that this whole thing will engender hatred for the U.S. around the world. But they have different ends in mind. One, they wish to be feared. By openly acknowledging their use of torture, and by doing so in the most aggressive, blatant, and unapologetic terms possible, they make clear that they will stop at nothing. They aim to sow terror, in other words. Two, they also have an agenda of increasing executive power at the expense of the Congress and the courts. When the Supreme Court dared rule against them on this, they immediately set about ratifying their illegality through Congressional action. Rather than being punished for violating the Constitution, they aimed to politically reward themselves. On both counts, they have succeeded.
As for the Democrats? First they crowed about their brilliant strategy of saying nothing and letting McCain set the terms of debate—if they said nothing, you see, they could not be attacked. Never mind that that brilliant strategy itself legitimized Bush’s view on torture, as well as ceding the right of any opposition to McCain himself. Then, Thursday, Sept. 21, they broke their vow of silence—with approval of the deal. Democratic Senate leader Harry Reid greeted news of the compromise by saying, “Five years after September 11, it is time to make the tough and smart decisions to give the American people the real security they deserve.” Speaking anonymously of the compromise, a House Democratic leadership aide said, “We had really hoped the White House had caved, but it’s looking more and more like the senators [i.e., McCain et al] caved.” With the assumption being that the Democrats would, of course, not step up on their own.
This is how fascism comes. With assurances of security, and quiet streets, and bills moving through Congress, in orderly bi-partisan fashion.
Unless.
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