The U.S. Senate is cutting a deal with President Bush to make America a banana republic. Last week, three senators reached an agreement with the White House that will de facto permit the CIA to continue torturing people around the world. And the deal will prevent anyone — including Bush administration officials — from being held liable for the torture.
This is latest sign that our elected representatives in Washington believe that the federal government deserves absolute power over everyone in the world. Former Secretary of State Colin Powell warned recently that Bush’s efforts to gut the Geneva Conventions would cause the world to "doubt the moral basis of our fight against terrorism.
But more important, the Senate-White House torture deal should cause Americans to doubt the moral basis of their entire government. After 9/11, many Bush administration officials seemed determined to use any and every means to bludgeon people suspected of terrorism or terrorist intent. The Justice Department delivered to the White House a memo in August 2002 explaining why Bush was not bound by the War Crimes Act or the Anti-Torture Act.
The memo began by largely redefining torture out of existence. It then explained why even if someone died during torture, the torturer might not be guilty if he felt the torture was necessary to prevent some worse evil. The memo concluded by revealing that the president has the right to order torture because he is above the law, at least during wartime (even if Congress has not declared war).
The Justice Department declared that the president may effectively exempt government officials from federal criminal law, noting that Congress cannot compel the President to prosecute outcomes taken pursuant to the President’s own constitutional authority. If Congress could do so, it could control the President’s authority through the manipulation of federal criminal law.
The memo’s absolutism would have brought a smile to despots everywhere: As the Supreme Court has recognized … the President enjoys complete discretion in the exercise of his Commander-in-Chief authority and in conducting operations against hostile forces…. we will not read a criminal statute as infringing on the President’s ultimate authority in these areas.
Thus, the commander-in-chief label automatically swallows up the rest of the Constitution. Yet, as Yale Law School Dean Harold Koh observed, If the president has commander-in-chief power to commit torture, he has the power to commit genocide, to sanction slavery, to promote apartheid, to license summary execution.
This is the doctrine that the Senate-White House deal largely codifies. It will be up to the president to declare which interrogation methods U.S. agents can use — almost regardless of the Geneva Conventions. It will be up to the president to decree who will face rough interrogation.
The details of the torture deal vivify how our politicians no longer give a darn about maintaining even a pretense of due process. The agreement will permit the use of coerced confessions in military tribunals — turning the judicial clock back to the 1600s. The Washington Post noted that the agreement permits defense attorneys to challenge the use of hearsay information obtained through coercive interrogations in distant countries only if they can prove it is unreliable. Thus, there is a presumption of correctness to whatever accusation is bludgeoned out of people in secret prisons around the world.
And it will be almost impossible to disprove an accusation when a defense lawyer is not allowed to question — or perhaps even know — who made the charge.
But that is fair enough for the U.S. Congress.
The New York Times noted that the agreement would impose new legal standards that it forbids the courts to enforce. Thus, it will be impossible for the vast majority of detainees at Guantanamo to challenge their detention.
The unverified accusations of U.S. government officials will still be the highest law of the land. The habeas corpus rights that go back to the Magna Charta of 1215 will be null and void under the agreement for many, if not most, detainees.
The torture scandal shows what happens when politicians and political appointees are permitted to redefine barbarism out of existence. If the government can effectively claim a right to torture, then all other limits on government power are practically irrelevant. What would it take to make the public acquiesce to the torture of Americans? Would simply applying an odious label (such as cult member at Waco, or Muslim with John Walker Lindh) to the victims be sufficient?