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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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