Torture as official U.S. policy

Bad apples, bad branch

No longer confined to dehumanizing the bad guys in Rambo or Missing in Action movies prior to their well-deserved demise, torture is now a recognized weapon in the United States' arsenal. Amnesty International's blog links to an article by historian Alfred McCoy explaining the mainstreaming of torture as policy.

In the aftermath of the Abu Ghraib scandal, the White House has defended torture as a presidential prerogative and blocked reform efforts. By contrast, a loose coalition of civil-liberties lawyers and human rights groups has mobilized to stop the abuse. In June 2004 the Supreme Court ruled in a landmark case, Rasul v. Bush, that Guantanamo detainees were, in fact, on territory leased to the United States and thus deserved access to U.S. courts. Leading U.S. law firms responded by filing 160 habeas corpus cases for 300 detainees.

McCoy describes how, despite President Bush's proclamation that McCain's anti-torture legislation would make it “clear to the world that this government does not torture,” crucial amendments to the legislation made clear to the world that this government does, and will continue to do so. These loopholes were no accident; they resulted from aggressive lobbying by the Bush Administration--most notably the Vice President:

[T]he Bush administration succeeded in twisting what began as an unequivocal ban on torture into a legitimization of three controversial legal doctrines that the administration had originally used to justify torture right after 9/11.

In an apparent compromise gesture, McCain himself inserted the first major loophole: a legal defense for accused CIA interrogators that echoes the administration’s notorious August 2002 torture memo allowing any agents criminally charged to claim that they “did not know that the practices were unlawful.”

Next, the administration effectively neutralized the McCain ban with Senator Lindsey Graham’s amendment stipulating that Guantanamo Bay detainees cannot invoke U.S. law to challenge their imprisonment. . . . In sum, McCain’s original amendment banned torture, but Graham’s later amendment , as finally approved by the Senate, removed any means for enforcement. For a mess of bipartisan pottage, Congress thus bartered away this nation's constitutional birthright of habeas corpus, a foundational legal protection born, ironically, of the British Parliament's long struggle to ban royal torture writs by the infamous Court of Star Chamber.

For the final loophole, on December 30 President Bush issued a “signing statement” insisting that his powers as commander-in-chief and head of the “unitary executive branch” still allowed him to do whatever is necessary to defend America—the same key controversial doctrine the administration had first used to allow torture. Instead of marking closure to the Abu Ghraib scandal, the McCain torture ban has thus sparked a renewed campaign by human-rights advocates to end the use of torture in Washington’s War on Terror—an effort that may well prove to be a long, uphill battle.

Only days after Bush signed the legislation containing the McCain amendment, the White House used a portion of the new law, now called the Detainee Treatment Act of 2005, to quash any judicial oversight of its actions. On January 3 the Justice Department notified federal judges that it would seek the immediate dismissal of all 160 habeas corpus cases filed by Guantanamo detainees. One week later, the U.S. Solicitor General, citing this law, told the Supreme Court it no longer had jurisdiction over Guantanamo and asked the justices to dismiss the potential landmark “unlawful combatant” case, Hamdan v. Rumsfeld. In late March, when the court began to hear oral arguments in this critical test case of U.S. military tribunals, several justices appeared to reject the solicitor general’s argument after vigorously questioning him.

. . . In response to continuing controversy over Abu Ghraib and Guantanamo, the White House has thus initiated what seems an historic shift in US interrogation policy—from the highly secretive tortures by the Central Intelligence Agency during the Cold War to an open, even defiant use of coercive interrogation as an official weapon in the arsenal of American power during the “war on terror.” Until 9/11, the United States government had successfully protected its intelligence community from censure by outsourcing torture to foreign allies and using subtle psychological techniques that elude ready detection—in striking contrast to the crude physical methods once favored by dictators around the world.

Read the full article here.