Monday, June 14, 2004

A Government of Laws, Not Men: Another Outdated Concept

It's time for "outrage about the outrage" on the right. You can hear them already, complaining that there's certainly been way too much attention paid to the fact that the Bush administration developed policies to minimize the definition of torture, and to expand its use, and that the administration believes that the president can do what he likes, regardless of statutes or treaties, because he says so. It's crowding out what's really important, you know. Why, the coverage is so over-the-top, and so taking attention away from what really matters, you might not have realized that Ronald Reagan died.

Newspaper version available here for a month or so.

East Valley Tribune, June 13, 2004

Thanks to the Bush administration and its lawyers, the North Vietnamese no longer have anything for which to apologize to Sen. John McCain. Sure, he suffered severe pain and outrageous abuse while a prisoner of war. But the Bush administration now says none of it constituted “torture.”

The Bush lawyers say that interrogators can inflict severe pain on a detainee, so long as there’s no clear intent to harm the prisoner on a long-term basis. But the Bush administration’s theory that “it isn’t torture if you really meant something else” (thereby creating a new category, “accidental” torture) apparently wasn’t disgusting enough. Their lawyers went further, claiming that interrogators can inflict severe pain with impunity unless they know for certain they’ve caused “prolonged” physical or mental effects. Maybe those broken bones heal soon enough that to Bush’s lawyers, it’s not actually torture.

But if those loopholes were still considered too restrictive, the Bush administration also claims that the Constitution doesn’t apply to the commander in chief in wartime. Never mind that there’s no declaration of war, or that this “war on terror” probably never ends; the Bush administration believes that a “war president” has an “inherent” power to ignore federal law and treaties. If George W. Bush says so, the United States can use torture.

Without any apparent irony, the Bush administration says that the president could instruct interrogators to torture suspects, and that in any prosecution, the torturers could beat the rap by claiming that they had to follow orders -- the “Nuremberg defense.” Who needs Michael Moore when the Bush administration cites the Nazis as justification?

Isn’t it nice we’re no longer ruled by moral relativists? Unfortunately, the key word there is “ruled.” The Bush administration believes that because we’re at war, Bush may be called president, but he’s really an emperor. I’m glad all you libertarians and “small government conservatives” (ha!) are comfortable with the Bush administration’s view of treaties, statutes, and the Constitution. Loss of our nation’s moral standing is but a small price to pay for getting rid of that terribly inconvenient “government of laws, and not men” folderol.

The legal memos make it clear that what we’ve seen in the Abu Ghraib prison photos wasn’t the work of a few “bad apples.” Instead, the top legal guns in the administration strained to create justifications for acts that, in the words of the Houston Chronicle, “are clearly beyond the bounds of a civilized nation.” The use of nudity and sexual humiliation; the use of personal medical records; psychological threats; the attack dogs -- all of it was approved and authorized by the Bush administration to “soften up” prisoners for interrogations.

The administration’s novel “intent” requirement also means that if we use amateur torturers, who conveniently don’t know what they’re doing, their ignorance gives them legal immunity unavailable to an “expert.” Maybe there’s a command-and-control reason the pictures we’ve seen involved an ill-trained Reserve unit. Under the Bush doctrine, amateurs have more leeway to torture than do pros. Their lawyers told them so.

Putting POW’s in cages, breaking bones, depriving them of food and medical care -- our government says what happened in Vietnam then is O.K. in Iraq and Guantanamo today, and our government’s lawyers will tell you how to get away with it. And if you’re caught, the Bush administration says the president can suspend the laws if he, and he alone, says the ends justify the means.

If the North Vietnamese had lawyers as “accommodating” as the Bush administration’s, who knows if John McCain would have had a future in politics? And in our next war, now our enemies know where to get their legal advice.

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