What the Democrats Must Do

Mandate for the new majority: Curb the president's power to torture

 In both their outsourcing of interrogation and the use of enhanced methods, CIA officers knew torture was involved. . . . From the beginning, the White House was fully aware of everything that was happening.Ghost Plane: The True Story of the CIA Torture Program (St. Martin's Press) by Stephen Grey, contributor to CNN, CBS's "60 Minutes," The New York Times.

We can be confident that our program remains—as it always has been—fully compliant with U.S. law, the Constitution, and our international obligations. —General Michael Hayden, director of the CIA, following the signing by the president of the Military Commissions Act of 2006.


The congressional Democratic leadership, eager to start investigations into the failures and cover-ups of their Republican predecessors have a list; but so far, the "black sites" of the CIA are far from a priority. But the president—who gave the CIA "special license" in 2002 to operate outside the law in kidnapping suspected terrorists and sending them to torture prisons abroad for interrogation—has already protected its interrogators with provisions he and Dick Cheney inserted into the Military Commissions Act of 2006.

So compliant, and complicit, was the Republican congressional leadership that when Democratic Senator Jay Rockefeller of West Virginia proposed requiring that the CIA report to Congress on its practices every five years, the amendment was defeated.

Joanne Mariner—on the faculty of Georgetown University law school and director of the Terrorism and Counterterrorism Program at Human Rights Watch—describes the president's ardent solicitude for the CIA in the Military Commissions Act:

"The MCA amends the War Crimes Act to . . . immunize the CIA from domestic prosecution for the crimes committed in interrogating the prisoners in its custody."

Moreover, "the MCA contains several provisions that are meant to bar the public from ever hearing direct testimony about the CIA's abusive methods. . . . Attorneys who represent Guantánamo detainees . . . can only speak about the information they have received from their clients after it undergoes classification review."

But the so-called Justice Department has now decided to strengthen and expand the silence about torture inflicted by the CIA. As reported in the November 4 Washington Post, "The Bush administration has told a federal judge that terrorism suspects held in CIA prisons should not be allowed to reveal details of the 'alternative interrogation methods' that captors used to get them to talk." It's like the British Star Chamber, centuries ago, where in secret trials, the defendants were tortured.

The CIA methods, past, present, and future, the administration insists, must be kept from the public.

We are left to imagine the range of those "dark arts," some of them detailed by survivors in Stephen Grey's hugely documented, essential new book, Ghost Plane.

In the public interest—and to show the world the First Amendment still waves despite Bush and Cheney—St. Martin's Press should send copies of Ghost Plane to the relevant new Democratic chairs in the House and Senate.

One of them—Pat Leahy of Vermont, who takes over the chairmanship of the Senate Judiciary Committee—already knows a lot of what's in Ghost Plane, but I expect even he will be much further informed. (For one of many examples, there are densely packed pages of CIA flight plans as the agents conducted "renditions" of kidnapped terrorism suspects to countries where they'd be tortured to exact information beyond what the CIA could get.)

As James Friedman of the University of Maine law school pointed out November 13 on the invaluable Jurist website (jurist.law.pitt.edu):

"The veil of secrecy with which the United States has shrouded the detention and interrogation of terrorist suspects makes the rule of law impossible to determine—and thus to maintain. [And now] telling the suspect he is forbidden to speak of his own interrogation is the logical outcome, and an almost literary symbol, of government by secrecy."

I may have done Attorney General Alberto Gonzales an injustice by underestimating his acquaintance with renowned literary novels; but it may be that, in the course of his duties, he has been drawn to the works of Frank Kafka. (After all, the president recently revealed that he had been reading Albert Camus's The Stranger—to what end I do not know.)

What does hearten me is that Pat Leahy and Christopher Dodd are working on separate bills to reverse some of the parts of the Military Commissions Act of 2006 that were so manifestly in contempt of the Constitution, the War Crimes Act, and the Geneva Conventions—as well as in contempt of recent Supreme Court decisions (Rasul v. Bush, in 2004) and (Hamdan v. Rumsfeld, in June).

But Senators Leahy and Dodd should not be alone in bringing the CIA and the president back into the rule of law. The Albany (N.Y.) Times Union—a newspaper with superbly consistent record of soldiering for the Constitution—headed its November 12 editorial, "Democrats' Job No. 1."

Among the Democrats' imminent "agenda for change," the editorial emphasizes, "one issue that many Democratic Candidates have skirted for years, when Republicans were in control, cannot be avoided: What to do about protecting basic freedoms that have been sacrificed in the name of waging war on terrorism? . . .

"[The resurgent Democrats] must address the anti–terror legislation . . . that invests the President with the power to declare anyone, including an American citizen, as an enemy combatant and . . . [to hold them] indefinitely without trial. The legislation stripped away habeas corpus for detainees, a right that allows a suspect to challenge his or her detention." (An echo of Franz Kafka's The Trial.)

I hope the editorial page editor of the Times Union will send a copy of that opinion to New York's senior senator, Charles Schumer—now third in the majority hierarchy as a reward for all the money he raised for the midterm elections. The loquacious Schumer has been indifferent to the administration's war on the Constitution and on our laws and treaties. Time for him to pay attention.

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