The Broken Constitution
The outlook of Richard Nixon was that he was above the law. Watergate disabused him of the notion. The position of George W. Bush is that he is a law unto himself. - Lincoln Caplan, editor of Legal Affairs (associated with Yale Law School), September 2005
Have we ever had a situation like this, where presumably this warlike status could last for 25 years, 50 years, whatever it is? - Supreme Court Justice Sandra Day O'Connor, during oral arguments, Hamdi v. Rumsfeld, 2004
The torture of detainees was so widespread and accepted that it became a means of stress relief for soldiers. Soldiers said they felt welcome to come to the PUC [Person Under Control] tent on their off hours to 'Fuck a PUC' or 'Smoke a PUC.' 'Fucking a PUC' referred to beating a detainee, while 'Smoking a PUC' referred to forced physical exertion sometimes to the point of unconsciousness. - "Leadership Failure: Firsthand Accounts of Torture of Iraqi Detainees by the U.S. Army's 82nd Airborne Division," Human Rights Watch, September 2005
Since 9-11, I've been covering the steadily increasing dislocation of our system of governmentmost vividly demonstrated by the Bush administration's systematic abuses of detainees (a/k/a prisoners), including torture. But despite the huge amount of documented evidence, only low-level soldiers have been disciplined. The top of the chain of commandBush, Rumsfeld, Gonzales, et al.is untouched by the Defense Department's "investigations" of itself.
During the 1787 Constitutional Convention in Philadelphia, there was a continuing, fractious debate on how to prevent one branch of government (the executive) from overpowering the other (the legislative). The Supreme Court had yet to realize its full identity until John Marshall became chief justice in 1801. (Earlier, Alexander Hamilton erroneously called it "the least dangerous branch.")
There have been times in our history when the presidency did overpower the other two branches. During the Civil War, Abraham Lincoln suspended "the Great Writ," habeas corpusby which a person imprisoned can go to a court and make the government prove he or she is being held legally. With Lincoln supreme, around 38,000 Americans suspected of espionage or just disloyalty were arrested by military officers, and were imprisonedwithout chargesindefinitely, even though the civilian courts were still open. (George W. Bush has followed suit with "enemy combatants." And the Republican leadership in Congress is now working on bills to "streamline" habeas corpus into a corpse. More on that in a later column.)
In 1866, Lincoln, dead by then, was sternly rebuked by the Supreme Court (Ex Parte Milligan) for the unconstitutional powers he had taken during the Civil War. Said the Court:
"The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances." (Emphasis added.)
But George W. Bush, as commander in chief, ignores that ruling in the forbidding name of national security as he keeps declaring that this nation is an example to the worldof freedom and the moral values of a constitutional democracy.
Recently, at least some of the press has given considerable space to the newest in a series of reports by Human Rights Watch, an invaluable watchdog of this administration's making up the rule of law as it goes along. However, another hurricane or another disappeared young woman will take the place of Human Rights Watch's "Leadership Failure: Firsthand Accounts of Torture of Iraqi Detainees by the U.S. Army's 82nd Airborne Division."
As National Public Radio's excellent national security correspondent Jackie Northam said during her September 25 report on this Human Rights Watch exposé: "There's just too many reports like this from captains, sergeants, officers, non-commissioned officers, that we can't keep ignoring it."
I have large files of such reports from Amnesty International, Human Rights First, the Center for Constitutional Rights, The New England Journal of Medicine (about military doctors' complicity in these often savage abuses of prisoners), and New York University law school's Center on Law and Security. But with Republican control of Congress, and an opposition Democratic Party that doesn't focus nearly enough on this continually broken rule of law (including the evisceration of the Fourth Amendment at home), all the protectors of the Constitution can do is keep hanging on. (Next week: How John McCain is insistently staying on the case of brutalized detainees.)
From the Human Rights Watch report: "Residents of Fallujah called them 'the Murderous Maniacs' because of how they treated Iraqis in detention. They were soldiers of the U.S. Army's 82 nd Airborne Division . . . stationed at Forward Operating Base Mercury in Iraq. The soldiers considered this [description of them] a badge of honor."
The report discloses that two non-commissioned officers and a captain, Ian Fishback, in multiple interviews with Human Rights Watch investigators, say that "torture of detainees took place almost daily . . . from September 2003 to April 2004. . . . The acts of torture and other cruel or inhuman treatment . . . include severe beatings (in one incident, a soldier reportedly broke a detainee's leg with a baseball bat); the application of chemical substances to exposed skin and eyes; forced stress positions . . . sometimes to the point of unconsciousness; sleep deprivation [for days on end]; the stacking of detainees into human pyramids; and, the withholding of food (beyond crackers) and water."
For 17 months, Captain Fishback raised his concerns within the army chain of command, and the army agreed to conduct an investigation "only after he had contacted members of Congress [including Senator John McCain] and considered going public with the story." Days before the Human Rights Watch report was released, the captain was told he couldn't leave the base to meet with members of McCain's staff "without approval and that approval was being denied because his commanding officer felt [he] was being naive and would do irreparable harm to his career."
The captain, however, refuses to be muzzled.
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