A Question of 'Compromise'

McCain's deal on prisoners means White House lawlessness rolls on

Our government is the potent, omnipresent teacher of the whole people by its example. . . . If the government becomes a lawbreaker, it breeds contempt for the law. —Supreme Court Justice Louis Brandeis, dissenting in the first wiretap case, Olmstead v. U.S., 1928


The civil war between three Republican senators and the president over his treatment of imprisoned suspected terrorists has resulted in a public break with George W. Bush's own former secretary of state, Colin Powell. But in all these stories about Powell's mutiny, I've seen no mention of an angry, prophetic memorandum he wrote on January 25, 2002, protesting the administration's pending decision to scrap the Geneva Conventions on the treatment of prisoners in Afghanistan.

That warning becomes particularly timely now, because the former chairman of the Joint Chiefs of Staff anticipated the increasing disclosure ever since of Bush's systemic lawlessness, especially his unleashing of the CIA, in the "war on terrorism." Despite a widely hailed bill, the Military Commissions Act, that purports to curb the president's excesses, that lawlessness will continue, courtesy of a so-called compromise between the sponsoring senators John McCain, John Warner, and Lindsey Graham, and the White House. Citing the fallout over Abu Ghraib, the CIA's "renditions," and the conditions at Guantánamo—for which Bush was rebuked by the Supreme Court in this year's Hamdan v. Rumsfeld decision—Powell said on September 19 that our professed "high moral standards" are being questioned around the world.

But the former Bush cabinet member predicted the unraveling of American principles back in 2002, when he wrote to Alberto Gonzales, then serving as counsel to the president and orchestrating advice by the president's lawyers on how to torture prisoners without admitting it. Powell warned him that ignoring Geneva Conventions "will reverse a century of U.S. policy . . . and undermine the protections of the law of war for our troops [and] make them more vulnerable to protections [abroad] and domestic charges."

Ignoring his own top foreign policy adviser, Bush declared on February 7, 2002, "that none of the provisions of Geneva apply to our conflict with Al Qaeda in Afghanistan or 'elsewhere.' "

Already, on September 17, 2001, Bush had disregarded Powell and given the CIA, under Vice President Dick Cheney's tutelage, a special license to violate both international and American law. Bush had earlier made Cheney "vice president for torture," in the words of former CIA director Stanfield Turner.

Margaret Satterthwaite, of NYU Law School's Center for Human Rights and Global Justice, offers a history of Bush's malfeasance in the current Amnesty International Magazine. "President Bush signed a Presidential Finding that authorized the CIA to kill, capture or detain suspected al Qaeda members anywhere in the world," Satterthwaite writes, drawing on a report by Dana Priest in the Washington Post. "This classified document apparently became the basis for a new, integrated system on illegal tactics: 'U.S. authorities [can] render suspects to the custody of foreign governments known for torture, or they [can] secretly detain them in CIA-run "black sites." ' "

She continues: "In a leaked memo dated November 2002, an FBI supervisory special agent warned his superiors that extraordinary rendition [to be tortured] was illegal, and explained that the intent of rendition was to 'utilize, outside the United States, interrogation techniques that would violate' federal criminal law outlawing torture. Carrying out an extraordinary rendition, he concluded, would amount to a federal crime, and plans to carry out such a transaction would amount to conspiracy to commit torture."

For years now, CIA agents have known they were in danger of prosecution for renditions and for whatever was going on in those secret CIA prisons. And that's why, before "the compromise," the September 11 Washington Post reported: "CIA counterterrorism officers have signed up in growing numbers for a government-reimbursed, private insurance plan that would pay their civil judgments and legal expenses if they are sued or charged with criminal wrongdoing. . . . "

But as I will show next week in a roundup of what Bush won when the senators caved, CIA agents will not have to worry any longer, let alone buy insurance, because if "the compromise" becomes law, they will be protected from any past violations of "aggressive" techniques or criminal wrongdoing. (Chilling accounts of horrific CIA war crimes can be found in a number of extraordinary articles by Jane Mayer in The New Yorker, as well as in reports by the ACLU, Human Rights First, Amnesty International, and Human Rights Watch.)

Even before this three–card monte compromise was reached, the Senate Armed Services bill—passed because of McCain, Warner, and Graham's efforts— included an abolition of habeas corpus hearings for any alien detainees outside the United States.

A similar removal of habeas rights is in a companion House bill— and is welcomed by the president. This means that lawyers will no longer be able to get court hearings, despite rulings to the contrary by the Supreme Court , on prisoners' conditions of confinement, including alleged torture. Such a radical removal of "the Great Writ," habeas corpus, will make it impossible for their lawyers to uncover these criminal violations of the Geneva Conventions.

Yet, on announcing the deal with the White House, presidential aspirant McCain declared: "The agreement we've entered into gives the president the tools he needs to fight the war on terror and bring these evil people to justice. There is no doubt that the integrity and spirit of the Geneva Conventions has been preserved." (Emphasis added.)

As he gracefully acknowledges applause around the country for his principled determination in forcing the president into a "compromise," McCain may be hearing, in his inner ear, a future military band playing "Hail to the Chief"—only for him. The senator's patriotism gets to remain intact because Bush approvingly says the compromise preserves "the CIA program to question the world's most dangerous terrorists and to get their secrets." The "black sites" live on.

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