June 28, 2004

Bush’s “Humane” Torture Policy Hits a Speed Bump

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On February 7, 2002, George W. Bush declared in an executive order that he could suspend the Geneva Conventions, which require that war prisoners receive humane treatment. Myriad news reports during the past month suggest that government interrogators took full advantage of that order to extract information from prisoners held at Abu Ghraib prison in Baghdad.

To read the headlines in The New York Times, though, you would think that order qualified Mr. Bush for a Nobel Peace Prize. The Times credited Bush with setting a “humane tone” in his order. The Times places too much emphasis on self-serving language in the order stating “[a]s a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.” When one reads the full text of the order, however, there can be no doubt that Bush intended to authorize U.S. interrogators to use torture to elicit information from its prisoners in Afghanistan, Guantánamo Bay and elsewhere. The Times overlooked Bush’s qualifier that “military necessity” trumps humane treatment.

You would hardly recognize the men implicated in the apparent conspiracy to torture prisoners in U.S. custody. Former Assistant Attorney General – now federal court Judge – Jay S. Bybee, is characterized as a “gentle” soul in another New York Times article. Yet he advised Alberto R. Gonzales, Bush’s White House lawyer, that “certain acts may be cruel, inhuman, or degrading, but still not produce pain and suffering of the requisite intensity” to constitute unlawful torture. In an August 1, 2002 memo, Bybee took 50 pages to methodically explain how U.S. military interrogators could circumvent our laws prohibiting torture. A human being, according to the gentle Bybee, could torture another human being as long as the torturer relied in good faith on legal advice in Bybee’s memo.

Bybee’s thesis, of course, is preposterous. Following the hue and cry heard ’round the world after release of his legal memo, the Bush administration quickly distanced itself from it. White House spokesmen inform us that the “humane” Mr. Bush never saw it. They now declare it “irrelevant,” although it remained in force for two years, and was cited in numerous subsequent memos. We are told that it will be completely rewritten. The slate will be wiped clean.

Bush’s spinmeisters first maintained that the heinous torture methods justified in memos recently released by the government were never employed. Those hundreds of pages of carefully worded legalese, according to Gonzales, were merely “exploring the boundaries as an abstract matter” of what was permissible.

But now they contend that the Bybee memo was not intended for use at Guantánamo Bay, only to guide CIA interrogators who question top al-Qaeda leaders. “Current and former government officials” quoted in today’s New York Times admit, however, that the memo was used as an after-the-fact legal basis for harsh procedures already in use by the CIA. First the sentence, then the verdict.

Bush’s deputies, desperate to quell the firestorm surrounding the burgeoning torture exposé, deny that the commander-in-chief saw many of the memos. “I don’t believe the president had access to any legal opinions from the Department of Justice,” said his lawyer Gonzales.

We do know, however, that Bush had “extensive discussions” involving the “complex legal questions” of whether the Geneva Conventions apply to the al-Qaeda and Taliban fighters captured by U.S. forces, because his February 7, 2002 order stated precisely that.

In his order, Bush “accept[s] the legal conclusion of the attorney general and the Department of Justice that I have the authority under the Constitution to suspend Geneva.” Gonzales would have us believe Bush accepted the Ashcroft/Justice Department conclusion without even reading any memos.

We are being asked to take it on faith that even though Bush had extensive discussions with lawyers from the Defense and Justice Departments before issuing his February 7, 2002 order, he conveniently wasn’t privy to later memos that justified torture. Most significantly, we don’t know whether Bush signed any directives on prisoner interrogation after February 7, 2002.

After some of the memos leaked out last month, the administration decided to release more of them in the face of intense public outrage. The original intent was to keep them secret. Bush’s Feb. 7, 2002 order was not scheduled for declassification until 2012. Donald Rumsfeld’s April 16, 2003 memo, which authorized the use of aggressive interrogation methods at Guantánamo Bay, was to remain classified until 2013.

Senator Patrick Leahy [D-Vt] spearheaded a subpoena for a gaggle of other government memos advising how to torture without risking criminal prosecution. (Last week, on the Senate floor, the genteel Vice President Dick Cheney rewarded Leahy for his efforts to shine light on Halliburton’s activities by suggesting to Leahy: “Go fuck yourself.”) In a characteristic move to limit transparency – and political damage to Bush – the Republican-dominated Senate Judiciary Committee scuttled Leahy’s subpoena. Senator Edward Kennedy thereafter accused the White House of orchestrating “a cover-up.”

Of the memos recently made public, The New York Times editorialized: “About the only thing in them worth keeping secret was the degree to which the administration had decided to exempt itself from the Geneva Conventions and then spent months debating whether there was a legalistic way to justify what ordinary people would consider torture of prisoners.”

The discussions within the administration about interrogation policy did not occur without dissent, although the communications from the dissenters were conspicuously absent from the documents the government released last week.

A 2002 letter from William H. Taft, the State Department’s legal advisor to the Justice Department’s deputy assistant attorney general, called the Justice Department’s approach to handling detainees “seriously flawed,” and said its reasoning was “incorrect as well as incomplete.”

Senior military leaders concurred. They maintained that the Geneva Conventions should apply to the Taliban militia. Also, pursuant to a requirement of Geneva, flouted by Bush, military lawyers favored holding military tribunals to determine which Geneva provisions would protect individual detainees.

Additional pressure on the Bush administration is coming from the attorneys defending the soldiers charged with criminal conduct at Abu Ghraib. Harvey Volzer, counsel for Army Spc. Megan Ambuhl, said: “Isn’t it amazing that hooding, nudity and physical contact short of death and organ failure all are mentioned as techniques, and yet the administration would have us believe that they were not employed when Bush was getting no results from interrogations”?

At the same time Bush’s A-team was engaged in damage control on the torture front, his UN-team was scrambling to ram a resolution through the Security Council that would give him and his men immunity from war crimes prosecutions in the International Criminal Court. Similar strong-arm tactics had earned him immunity resolutions in the previous two years. But the revelations of torture were too much for U.N. Secretary General Kofi Annan to bear. Annan urged the Security Council to resist the resolution “given the prisoner abuse in Iraq.” He warned, “It would discredit the Council and the United Nations that stands for the rule of law and the primacy of the rule of law.”

As a result, Bush was dealt a severe political blow when he was unable to muster enough votes for the resolution. “It also marked the most concrete evidence of a diplomatic backlash against the scandal over abuses of U.S. detainees in Afghanistan and Iraq,” according to the Washington Post. The Financial Times called it a “major diplomatic defeat.”

No big deal. U.S. Deputy Representative to the U.N., James Cunningham, said we still have the bilateral immunity agreements. The Bush administration secured them by blackmailing 90, primarily small, nations or fragile democracies with weak economies. These countries have pledged not to hand over U.S. nationals to the International Criminal Court, which Bush has denounced. But the three-dozen countries that resisted Bush’s bullying suffered the cutoff of military assistance for their obstinacy.

Not to worry. Coalition dictator Paul Bremer extended his order that U.S. military personnel would be immune from prosecution for killing or torturing Iraqis. The only glitch is the handover of “sovereignty” to the Iraqis on June 30. Bremer’s decree will be null and void once the occupation ends.

The new Iraqi government would be hard pressed to agree to give Americans immunity for killing and torturing Iraqis. When the Iranian government granted immunity to U.S. troops in the 1960s, Ayatollah Ruhollah Khomeini used it to galvanize opposition to the Shah. In a 1964 speech, Khomeini said, “Our honor has been trampled underfoot; the dignity of Iran has been destroyed.” The immunity, according to Khomeini, “reduced the Iranian people to a level lower than that of an American dog.”

In another blast from the past, the gentle soul John D. Negroponte was quietly sworn in as U.S. ambassador to Iraq. Negroponte, who was U.S. ambassador to Honduras in the 80s, was instrumental in covering up the torture and summary executions carried out by the Honduran government.

Also sworn in under the radar was the kindly John Danforth as U.S. ambassador to the United Nations. As described in my column, “John Danforth – Bad Choice for U.N. Ambassador,” Danforth knows almost nothing about the United Nations. He voted against sanctions on apartheid South Africa and for cutting funds for U.N. peacekeeping. But his vote to limit U.S. support for international family planning and his fanatical, albeit dishonest, engineering of Clarence Thomas’ Supreme Court nomination landed him the plum nomination for U.N. ambassador.

Bush has compassionately appointed individuals with torturous pasts to high positions in government. The Good Judge Bybee, expert on how to torture without leaving illegal marks, will regularly be called upon to interpret laws against torture which are frequently cited by applicants for political asylum.

Last week, in response to the growing torture scandal, Bush attempted to put us at ease by saying: “Let me make very clear the position of my government, and our country. We do not condone torture. I have never ordered torture. I will never order torture.”

Bill Clinton was unsuccessful in putting many at ease when he said, “I am going to say this again: I did not have sexual relations with that woman, Ms. Lewinsky.” Clinton was subsequently impeached for lying to a grand jury about the Monica Lewinsky affair.

It remains to be seen whether the “humane” Mr. Bush’s torture denials will hold up. Time will also tell whether Bush, who hired a trial lawyer and was questioned by federal prosecutors for 70 minutes, can escape a felony grand jury indictment for the Valerie Plame affair.