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No
Other Way To Say This: Torture Memos Reveal Fascist Mentality
June
17, 2004
By Bernard Weiner, The
Crisis Papers
 Conveniently
buried in the all-Reagan-all-the-time news coverage last week
was the smoking-gun revelation, in the so-called torture-memos,
that the Bush Administration was actively engaged in setting
up a governmental system where Bush becomes the sole law of
the land. In this set-up, no court, no legislature, nobody
can touch him. He is to be the Supreme Leader.
There's no other way to say this, even though it pains me
to acknowledge it: what is revealed in these torture memos
are the foundations for a kind of fascist rule in America.
The object was (and is) to establish Bush as an extra-constitutional
dictator, under cover of "law." You'll understand in a moment
why there are quotation marks around that word.
Here's a quick reprise of how we got to this place. After
9/11, when suspected terrorists and Talibanists wouldn't talk
at the U.S. detention facility at Guantanamo, the Bush Administration
set their lawyers a mighty task: find a way to justify the
torture of prisoners for the purposes of extracting information,
but in a way that will not put the torturers or those who
authorized the torture in any legal jeopardy under existing
American anti-torture laws and international anti-torture
conventions and treaties.
We don't know the complete chronology and players in this
ultra-secret Administration, but apparently the first one
to log in on this question was Alberto Gonzales, counsel to
the president.
• In January of 2002, Gonzales wrote a memorandum
designed to get the U.S. out from under the Geneva Convention
that deals with treatment of prisoners of war. What Gonzales
did, among other things, was to circumvent those rules of
civilized behavior by inventing a new term not covered in
the convention -"enemy combatants." Gonzales told Bush that
the nature of the war on terror "renders obsolete Geneva's
strict limitations on questioning of enemy prisoners and
renders quaint some of its provisions." Quaint!
• In August of 2002, in response to a CIA request
for legal guidance, the Justice Department's Legal Office
(one of whose attorneys was John Yoo, a professor at UC-Berkeley
Law School) advised the White House that international laws
against torture "may be unconstitutional if applied to interrogations"
conducted in Bush's war on terrorism. If a government employee
were to torture a suspect in captivity, "he would be doing
so in order to prevent further attacks on the United States
by the Al Qaeda terrorist network," said the memo. It added
that arguments centering on "necessity and self-defense
could provide justifications that would eliminate any criminal
liability" later.
"It is by leaps and bounds the worst thing I've seen since
this whole Abu Ghraib scandal broke," said Tom Malinowski
of Human Rights Watch. "It appears that what they were contemplating
was the commission of war crimes and looking for ways to
avoid legal accountability. The effect is to throw out years
of military doctrine and standards on interrogations." (Incidentally,
there were many officers in the Pentagon who strenuously
objected to the thrust of this memo, as violative of understood
rules of behavior in war.)
• Meanwhile, a working group of lawyers from the
Justice and Defense Departments were charged by Ashcroft
and Rumsfeld to devise provisos that would pass muster in
the courts, if it ever came to that. A military official
who helped prepare the report said its genesis derived from
the frustrations of Guantanamo interrogators, who wanted
cover for their unorthodox methods on recalcitrant prisoners.
"We'd been at this for a year-plus and got nothing out of
them" so officials concluded "we need to have A LESS-CRAMPED
VIEW of what torture is and is not." (emphasis supplied)
• After many months of deliberation, the working
group from State and Justice (those from the State Department
opposed the findings) emerged in March of 2003 with a 56-page
report that, with strangled logic and weird interpretations
of existing law, supplied their bosses philosophical and
legal justifications that would authorize a President to
do whatever he felt needed to be done on the "war on terror,"
including torture of captured suspects.
The philosophical trick was to cloak Bush's actions not
in his role as President but rather in his role as Commander-in-Chief
during "wartime." (This required that they ignore that no
official Declaration of War had been passed by the one body
authorized to do so, the Congress.) Since the U.S. is engaged
in a "war on terrorism," according to Bush's lawyers, it follows
that a Commander-in-Chief must do whatever needs to be done
to win that war against the enemy. As Commander-in-Chief,
whatever actions he takes are therefore lawful under wartime
conditions.
BUSH & NIXON ON SHAKY LEGAL GROUND
To protect subordinates should they be charged with torture,
the memo advised that Bush issue a "presidential directive
or other writing" that could serve as evidence, since authority
to set aside the laws is "INHERENT IN THE PRESIDENT." (emphasis
supplied)
In short, American torturers, and those who authorized the
torture, would not be violating any law because, under this
theory, whatever Bush authorizes cannot be unlawful, because
he is the law. This claim reminds one of the theory
espoused by President Richard Nixon - later struck down by
the courts - which claimed that when a president takes any
action, because he is the president, by definition his actions
are not illegal.
Under the philosophy in this memo, Bush's actions are legally
protected not only in attacking the enemy and extracting information
from captured "enemy combatants," but also in dealing with
those suspected of aiding the enemy domestically, including
American citizens. (Several U.S. citizens already have been
arrested and held, without charge, for months and years.)
In short, in this view, no court, no Congress - nobody - can
legally interfere with these Commander-in-Chief functions.
Whether Bush ever officially approved of the findings of
the report (he claims not to remember ever having seen it,
but is sure he never authorized it as policy), in point of
fact its underlying philosophy has resulted in torture and
abuse of prisoners in Guantanamo and - once General Miller,
the officer in charge of the Cuba prison, traveled to Iraq
to visit the jails and prisons there - in Iraq as well, and
probably other jails around the world. Much of the behavior
of the Abu Ghraib guards and interrogators that we know so
well from the photos and videos mimics what is laid out in
those memos - and in an earlier CIA manual for effective interrogation.
We will, for the moment, merely mention that almost everyone
(including Ashcroft) agrees that torturing inmates for confessions
most often results in useless information being provided,
since those being brutalized will say anything to stop the
process. But the torturing continues, for reasons one can
only speculate about, with horror.
CONVENTION PROTECTS U.S. TROOPS
Before moving on to those infamous torture-memos themselves,
it might be a good time to remind ourselves - as Senator Joe
Biden did to Ashcroft the other day - why the U.S and other
countries many decades ago established the Geneva Conventions
and, later, international anti-torture treaties.
As Biden said, his eyes flashing, his teeth bared in barely-concealed
anger:
"There's a reason why we sign these treaties: to protect
my son in the military. That's why we have these treaties,
so when Americans are captured they are not tortured. That's
the reason, in case anybody forgets it." (As if to underline
that point, the group that took an American hostage the other
day in Saudi Arabia said he would be treated the same way
the U.S. soldiers treated prisoners in Abu Ghraib.)
NO WRITTEN ORDER
Now Bush&Co. are claiming that those torture-memos were
just working drafts, or philosophical speculations by government
attorneys, never adopted into official policy, never turned
into orders or laws. And, in the narrowest sense - even though
government actions to date have mirrored what was laid out
in those documents - they may be correct that Bush never explicitly
signed a written order that said "go thou and torture." (Oral
transmission is another matter, maybe something open-ended
like "do what needs to be done" - but how to prove that one?)
But there was no need for an explicit order. The major players
in the Bush Administration had been meeting on this sensitive
subject for more than a year and a half, at least three major
memoranda had been issued outlining ways to minimize legal
jeopardy for torturers and those who authorized the torture,
the torture was being carried out (sometimes to the point
of death of the prisoners being interrogated), and there were
no outcries from the press and public. So, from the Bush Administration's
perspective, they were home free on the torture question.
Then the Abu Ghraib photos and videos were revealed in the
public media, and the proverbial fecal matter hit the air
circulator. The Administration and its supporters want us
to focus on the actual abuse and sexual humiliations and tortures,
and stay away from examining the underlying philosophy that
came down from the highest levels of the Bush Administration
- the fascist-like underpinnings for that behavior that aim
to place a president above the law. At least the traditional
law as we understand law, not the "law" Bush would set on
his own, as laid out in the torture memos.
"If anyone in the higher levels of government acted in reliance
on this advice, those persons should be impeached. If they
authorized torture, it may be that they have committed, and
should be tried for, war crimes. And, as we learned at Nurenberg,
'I was just following orders' is NOT (and should not be) a
defense," writes law professor Michael Froomkin.
"ABOVE THE LAW" NO LONGER A METAPHOR
"The breadth of authority in the [memo] report is wholly
unprecedented," says Avi Cover, a senior attorney with the
U.S. Law and Security programme of Human Rights First. "Until
now, we've used the rhetoric of a president who is 'above
the law,' but this document makes that [assertion] explicit;
it's not a metaphor anymore."
Even conservatives that are doing all they can to keep Bush
in office, and thus preserve their party's majority status
in Congress, are having great difficulty coming to the defense
of Bush&Co. on this issue. If impeachment is initiated in
the next few months, it will come with the aid of Republicans
appalled by these extra-constitutional moves by Bush and his
handlers to sidestep the Constitution, the Bill of Rights,
the Congress, the courts, indeed any individual or institution
that gets in their way.
Let me reiterate: what is being discussed here is not the
torture of detainees or prisoners in the "war on terror."
That is an important issue all its own, one that flows naturally
from the philosophy being advanced in the leaked memos. (And,
by the way, even though Ashcroft has asserted that he will
not turn over the memos to the Congress - which could be grounds
for citing him for contempt of Congress - at least two of
the memos already are out on the Internet.
What is being examined here is the proclaimed right
of this Administration to torture anyone, to imprison anyone,
to invade any country, simply because (it is claimed) as Commander-in-Chief
in a war, he has the sole right to decide who should be prosecuted,
imprisoned, tortured, invaded, killed.
HOW TO RESPOND TO THIS TAKEOVER
Our Founding Fathers were all too aware of that type of
thinking and government, which is why they rebelled against
a tyrannical monarch who abused them so, and set up their
own carefully thought-through system of governance, one designed
to prevent any one person or faction from too easily being
able to do civic damage in the name of righteousness. The
separation of church and state, the checks-and-balances system
of government, with a strong free press ferretting out scandals
and dangerous rascals - all were designed to ensure democracy
and freedom.
That system of government has worked beautifully (if sluggishly)
for more than two centuries. But within just a few years,
acting out of greed and power-hunger, a few extremist ideologues
have tried to turn that system on its head, installing what
amounts to a king as president, and woe be unto those who
demur or oppose.
Using fear and demagoguery after the terrors of 9/11 - an
attack they knew was coming but did nothing to prevent or
ameliorate - those ideologues manipulated the Congress and
populace into giving them a blank check to go after those
who perpetrated this terrorist mass-murder, and they've been
riding that same horse ever since in service of their other,
more extreme agendas. Bush&Co. even invented a non-existent
tie-in to 9/11 to justify their invasion of Iraq - and then,
much later, with very little attendant publicity, Bush admitted
that there hadn't been any such relationship.
Friends (and any Democratic office-holders reading this),
we either stop this pack of wolves here - by forcing them
to resign, impeaching them shortly, or in November throwing
them out of the offices they've disgraced - or we wind up
living in a police-state at home, and carrying out more disastrous
imperial wars abroad. Is this the free country so many veterans
have fought and died for? Is this the kind of government you
want your kids raised under? Is this, finally, what we've
come to in America because we didn't pay enough attention
to what was really happening under our noses, and permitted
ourselves to be snowed and manipulated so easily?
I think not. It's time for us to raise our voices in a mighty
roar to our elected officials, to organize our friends and
neighbors, to shout out to the rest of the world that this
is not the true America and will not stand. IT WILL NOT STAND.
Bernard Weiner, Ph.D. in government & international relations,
is co-editor of The
Crisis Papers, and a contributing author to the just-released
Big Bush Lies book, available at bookstores and through
RiverWood
publishers. Note: This essay includes a few paragraphs
first used by the author in a recent blog.
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