Bush: A "Plenty Tough" Torturer's Apprentice

Addressing the use of torture Wednesday, President George W. Bush played to the baser instincts of Americans as he strained to turn his violation of national and international law into Exhibit A on how "tough" he is on terrorists. His tour de force brought to mind the charge the Athenians leveled at Socrates - making the worse case appear the better. Bush's remarks made it abundantly clear, though, that he is not about to take the hemlock.

As the fifth anniversary of 9/11 approaches and with the midterm elections just two months away, the president's speechwriters succeeded in making a silk purse out of the sow's ear of torture. And the artful offensive will succeed if - but only if - the mainstream media is as cowed, and the American people as dumb, as the president apparently thinks we are. Arguably a war criminal under international law and a capital-crime felon under US criminal law, Bush is in even more serious legal jeopardy than when he deserted in time of war (Vietnam). And this time, his father's friends will not be able to fix it.

Bush's Official Authorization of Torture: Download It

Bush in jeopardy? Yes. The issue is torture, which George W. Bush authorized in a memorandum of February 7, 2002, in contravention both of the Geneva Accords and 18 US Code 2441, the War Crimes Act approved by a Republican-led Congress in 1996. That law incorporates the Geneva provisions into the federal criminal code. Heeding the advice of Vice President Dick Cheney's counsel, David Addington, then-White House counsel Alberto Gonzales, and Assistant Attorney General Jay Bybee, the president officially opened the door to torture in that February 7, 2002, memorandum. His remarks yesterday reflect the determination of Cheney and Bush to keep that door open and accuse those who would close it of being soft on terrorists.

The administration released that damning memorandum in the spring of 2004 after the photos of torture at Abu Ghraib were published. It provided the basis for talking points showing that the president wanted "humane" treatment for captured al-Qaeda and Taliban individuals. And - surprise, surprise - mainstream journalists like those of the New York Times swallowed the bait, clinging safely to the talking points, and missed altogether Bush's remarkable claim that "military necessity" trumps humane treatment. That assertion over the president's signature provided the gaping loophole through which Defense Secretary Donald Rumsfeld and then-CIA Director George Tenet drove the Mack Truck of officially sanctioned torture.

Using the arguments adduced by the Addington/Gonzales/Bybee team, Bush's February 7, 2002, memo made the point that the bedrock provision of Geneva - common Article 3 - does not apply to al-Qaida or Taliban detainees, but that the US would "continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva." (Emphasis added.)

Sounding very much like Mafia lawyers, the president's legal troika felt it necessary to warn him that playing fast and loose with the US War Crimes Act (Section 2441) could conceivably come back to haunt him. The bizarre passage that follows is the best they could offer in terms of reassurance:

It is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441. Your determination would create a reasonable basis in law that Section 2441 does not apply, which would provide a solid defense to any future prosecution.

While the imaginative lawyering of Addington (now Cheney's chief of staff), Gonzales (now Attorney General), and Bybee (now a federal judge) may have qualified for a presidential "heck-of-a-job" at the time, Bush is learning the hard way that, while sycophants are fun to have around, they can do a president in. Between the lines of Bush's rhetoric yesterday lies belated acknowledgement that his decision to condone the torture of al-Qaeda and Taliban captives is now back to haunt him - big time.

The Supreme Court decision on Hamdan v. Rumsfeld, announced on June 29, 2006, stripped the president of the magic suit of clothes procured by his courtiers, when it found illegal the "military tribunals" invented by the Cheney-Rumsfeld cabal to try terrorists. The Court rejected the artifice of "unitary executive power" used by the Bush administration to "justify" practices like torture, indefinite detention without judicial process, and warrantless eavesdropping. In other words, the Supreme Court of the US reaffirmed that ours should be a government of laws, not of the caprice of the vice president or president. And in condoning torture they are, demonstrably, outlaws.

The Defense Rests Not

The president's performance yesterday reflects the time-honored adage that the best defense is an aggressive offense - and especially with a mere two months before the midterm elections. Bush devoted fully half of his speech to cops-and-robbers examples, none of them persuasive - indeed, several of them grossly inaccurate - of how "tough" interrogation techniques have yielded information preventing all manner of catastrophes.

But someone in the White House apparently forgot to tell the Army, for Army Lt. Gen. John Kimmons, head of Army intelligence, spoke from a very different script at a Pentagon briefing yesterday. Kimmons explained why the new Army manual for interrogation is in sync with Geneva. Conceding past "transgressions and mistakes," the general said:

No good intelligence is going to come from abusive practices. I think history tells us that. I think the empirical evidence of the last five years, hard years, tells us that.

Grabbing recent headlines today is the fact that Bush actually admitted that the CIA has taken high-value captives to prisons abroad for interrogation using "tough" techniques. More telling are the facts that (1) CIA interrogators are not bound by the strictures in the new army field manual, and (2) the president is determined to maintain in place detention centers where CIA interrogators can ply their trade with more permissive guidelines.

The president brags about how his government "changed its policies," giving intelligence personnel "the tools they need" to fight terrorists, and makes it clear that the CIA was given permission to use "an alternative set of procedures." He said he could not describe the specific methods used, "But I can say the procedures were tough." Bush went on to recount how several plots were stopped, allegedly "because of the information from this vital program." The alumni of this school of hard knocks are now on their way to Guantanamo, but Bush made it clear that he wanted to keep the schools open for freshmen and transfer students.

Acknowledging that other terrorists are waiting in line to take the place of captured leaders, the president made it clear that he wants the "CIA program" for interrogating advanced placement terrorists to continue. Bush conceded that, after the Hamdan decision, "some believe" that intelligence personnel "could now be at risk of prosecution under the War Crimes Act - simply for doing their jobs in a thorough and professional way." Thus, he is asking Congress to pass legislation squaring the circle, so that even while using "alternative" procedures, CIA personnel can be said to be in compliance with common Article 3 of Geneva. (The not-so-hidden threat, of course, is the virtual certainty that any member of Congress opposing this kind of legerdemain will be branded soft on terrorism in the weeks leading up to the November election.)

In a telling twist, the retroactive nature of this legislation, which the president said "ought to be the top priority," would immunize from subsequent prosecution Bush himself, as well as intelligence practitioners of "alternative procedures." It takes no lawyer to see how the legislation Bush proposes would complicate any effort to charge him under the US War Crimes Act in effect when he authorized torture and other abuse.

And so the stage is set, and Bush's advisers see still more opportunity to highlight "national security" issues on which they hope to put Democrats on the defensive. The president can now be expected to focus more on playing up the importance of being able to eavesdrop on Americans without the court warrant required by law. This practice has been ruled unconstitutional and illegal by Judge Anna Diggs Taylor in Detroit on the grounds that it violates the Fourth Amendment and the Foreign Intelligence Surveillance Act. But, speaking in Atlanta yesterday, the president reiterated that his administration "strongly disagrees" with Taylor's ruling and hopes to reverse it on appeal. Still more grist for the political mill.

The White House has been putting pressure on Senate Judiciary Committee chair Arlen Specter (R-Pa.), who initially called the warrantless eavesdropping activity extralegal and vowed to put it under close scrutiny. Specter has now come full circle, drafting legislation that would hold harmless the president and others involved in that program - again, retroactively. Hard to tell what changed Specter's mind. Not to be ruled out is the possibility that NSA coughed up some juicy detail on his political or even personal life - and that the administration used the kind of "alternative procedure" employed so successfully by former FBI director J. Edgar Hoover. It is worth remembering that it was precisely this kind of illegal activity that the FISA law was designed to stop.

Accountability

Is there no one to hold our leaders to account? The Bush Crimes Commission, a grass-roots citizens' initiative determined not to follow the example of the obedient, passive Germans of the thirties, has taken testimony on torture and other key issues to establish whether President Bush is guilty of war crimes. Testimony was given in October 2005 and January 2006, indictments have been brought and served on the White House, and the judges will issue their verdict on Wednesday, September 13 in Washington (See http://bushcommission.org.) (Full disclosure: I was privileged to have been invited to take part in the proceedings of the Bush Crimes Commission.) Join us next week.

Ray McGovern works with Tell the Word, the publishing arm of the ecumenical Church of the Saviour. He was an Army infantry/intelligence officer, then a CIA analyst for 27 years, and is now on the Steering Group of Veteran Intelligence Professionals for Sanity (VIPS).

This article first appeared on TomPaine.com.

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