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Slipped into the bill (H.R. 10) was a section that, for the first time, made official and legal the CIA's practice, beginning at least two years ago, of sending noncitizen detainees allegedly involved in terrorism to countries where they would be torturedand then returned to the CIA with their "confessions."
That this would become American policy, in clear violation of both international and our own law, brought to my mind the title of Joseph Conrad's novel Heart of Darkness, referring now to holes in the hearts of Hastert, DeLay, and Sensenbrenner. These are not good men.
But a storm of angry protest over the torture provision of the billranging from the ACLU and human rights groups to the American Bar Association and the United States Conference of Catholic Bishopsled the counsel to the president, Alberto Gonzales, to declare that the president is wholly opposed to torture and does not support that section of the bill.
But on September 30, John Ashcroft's Justice Department, along with the House Republican leadership, supported the torture section. How were Bush's Republican leaders in the House going to make it possible for the president to avoid having to veto a bill endorsing torture after he had proclaimed his opposition?
In the House, up stepped Republican conservative John Hostettler (Indiana) with an amendment that the leadership thought would do the trick.
The amendment was voted into the final House passage of H.R. 10. It's important to note that none of the language in this amendment is in the Senate bill (S. 2845) on reforming intelligence agencies that was previously passed overwhelmingly by that body. Because of this, and other sharp differences between the two bills, a Senate-House conference committee has been trying to work out a compromise.
On October 8, on the floor of the House, before the vote, Edward Markey, Democrat of Massachusettsthe leading member of Congress to expose and oppose the sending of noncitizen prisoners to countries that will torture them to get informationtried to explain to his colleagues how disingenuous the Hostettler amendment is.
He noted the amendment (section 3032) claimed to provide an alternative to sending these prisoners to the torture chambers of countries working with the CIA.
In the alternative, Markey pointed out, the secretary of homeland security would be given "unreviewable discretion" to hold especially dangerous aliens "behind bars indefinitely [in American custody], with no recourse to a court or other independent fact finder empowered to review the basis for the Secretary's decision." There would be no trial.
This section is unconstitutional in view of the Supreme Court's decision (June 28) in Rasul et al. v. Bush (regarding the Guantánamo detainees). The Court ruled that even noncitizens held by the United States must be accorded due process.
The same amended section 3032, Markey noted elsewhere, allows alien detainees to "still be deported to countries that engage in torture with the only safeguard being that the Secretary of State will seek 'diplomatic assurances' that such an alien be protected." (Emphasis added.)
Markey then got to the cynicalindeed despicablecore of the Hostettler amendment's duplicity:
"The U.S. already has sent suspected terrorists to countries thataccording to the State Department's annual human rights reportpractice torture, including Syria and Egypt."
Markey continued, giving the following example: In 2002, Maher Arar, a Syrian-born Canadian citizen, was intercepted at New York's JFK airport, where he was detained, deported to Syria, and reportedly tortured. According to Markey, "The Washington Post has reported that while Syria provided 'diplomatic assurances' that Arar would not be mistreated, these assurances proved worthless."
Arar says he was tortured with cables and electrical cords for almost two weeks, and held for 10 months without charges in a cell so small that he described it as "a grave." And dig thisin the November 19, 2003, Washington Post, Dana Priest, who has often written about these "extraordinary renditions," as the CIA calls them, to accommodating countries, reports:
"ThenDeputy Attorney General Larry D. Thompson, in his capacity as acting attorney general, signed the highly unusual order [sending Arar to Syria], citing national security . . . "
In a forthcoming column, I'll be citing details from an April 2004 report by Human Rights Watch: "Empty Promises: Diplomatic Assurances No Safeguard Against Torture." Arar's case is included.
On the floor of the House on October 8, Congressman Markey challenged his colleagues on whether America should be "outsourcing torture to countries like Syria or Sudan."
An editorial in the October 6 Los Angeles Times, "Blood on Our Hands," said of the torture language in the House intelligence reform bill: "If this language . . . survives, it would shred the international treaty against torture that the United States signed on to 20 years ago. Beyond the diplomatic fallout, it would mock any claim to moral high ground offered up to justify the war in Iraq." (Emphasis added.)