Waterboarding the Rule of Law
By Steve Weissman,
t r u t h o u t: Aoril 28, 2009
Asked what he thought of Western civilization, the nonviolent Mahatma Gandhi
famously replied, "I think it would be a good idea." Unless millions of
Americans now demand better, we can say the same of "the rule of law." What
a good idea it would have been, but - like the tooth fairy - it will not
exist, not when competing priorities get in the way. The balancing - and
trimming - is well on its way.
Should a special prosecutor hold Bush, Cheney, Rice and Rumsfeld
accountable for violating the law against torture when they specifically
authorized waterboarding, sleep deprivation, stress positions and sexual
humiliation of detainees? "No one is above the law," President Obama
repeatedly tells us. But, prosecuting Bush & Co. would tear the country
apart, the Republican chorus chimes in. And it would create a precedent for
prosecuting future presidents whose policies we might not like, just as in a
banana republic.
Should Congress or a truth commission investigate torture and other war
crimes so they will never happen again? Better not, the White House tells
us. The country needs to look ahead and not to the past, and the
administration needs to focus on fixing the economy and creating a universal
health care system.
Should Congress impeach former Deputy Attorney General Jay Bybee, now a
federal appeals court judge, for giving his superiors the legal arguments
they wanted to justify the torture they had already decided upon? Absolutely
not, his defenders insist. Lawyers must feel free to give officials their
best legal advice, and officials must feel free to get the legal advice they
need.
None of these alternative priorities are trivial. America should never
criminalize differences over lawful policies. Obama and his administration
should focus on ending the economic crisis and fulfilling his campaign
promises. And senior officials should feel free to consult with government
lawyers. But all these priorities must remain within legal limits, and none
of them justify giving a pass to those who commit criminal acts, no matter
how high their office. Either we uphold the rule of law or we make political
priorities paramount. We cannot have it both ways, and we should stop
pretending that we can.
The stakes here go far beyond whether or not we torture our enemies, our
suspected enemies and then our own people, though these are obviously
life-and-death concerns. What should scare us even more is whether or not we
maintain even the façade of democracy.
In overriding the Geneva Conventions, other treaty obligations and
American laws banning torture, the Bush administration explicitly claimed
that the president could do whatever he thought necessary to full his
constitutional obligation to defend the country. He was the decider in
chief, and neither Congress nor the courts could overrule his decision. As
Jay Bybee's torture memo put it, "the President enjoys complete discretion
in the exercise of his Commander-in-Chief authority and in conducting
operations against hostile forces."
Right-wing legal ideologues call this view of sweeping and unchecked
presidential power "a strong unified presidency." Those who believe in it
would turn our chief executive into an elected monarch, and some proponents
would even grant him or her the right to call off elections in time of
crisis, real or contrived. Following this grandiose view, President Bush
usurped powers that the Constitution does not permit, and his administration
used those powers to commit other crimes, from torture to invading Iraq on a
pack of lies. Do we prosecute Bush's power grab as a criminal violation of
the Constitution? Or, do we accept a crime bordering on treason as just
another policy decision with which we may or may not disagree?
Either way, we set a precedent. Prosecute Bush, Cheney, Rice and
Rumsfeld and we confirm that every future leader must operate within the
rule of law. Give them a pass and their successors will feel free to rule as
they will. The choice is clear, if only Americans have the courage to pursue
it. My guess is that we do not, and that we will soon come to rue it.
***
http://www.truthout.org/042909T
Spanish Judge Opens Probe Into Guantanamo Torture
by: Agence France-Presse: April 29, 2009
Madrid - A Spanish judge on Wednesday opened an investigation into an
alleged "systematic programme" of torture at the US Guantanamo Bay detention
camp, following accusations by four former prisoners.
Judge Baltasar Garzon will probe the "perpetrators, the instigators, the
necessary collaborators and accomplices" to crimes of torture at the prison
at the US naval base in southern Cuba, he said in his ruling, a copy of
which was seen by AFP.
The judge based his decision on statements by Hamed Abderrahman Ahmed,
known as the "Spanish Taliban" and three other former Guantanamo detainees -
a Moroccan, a Palestinian and a Libyan.
Garzon said that documents declassified by the US administration and
carried by US media "have revealed what was previously a suspicion: the
existence of an authorised and systematic programme of torture and
mistreatment of persons deprived of their freedom" that flouts international
conventions.
This points to "the possible existence of concerted actions by the US
administration for the execution of a multitude of crimes of torture against
persons deprived of their freedom in Guantanamo and other prisons including
that of Bagram" in Afghanistan.
The four former Guantanamo detainees alleged they were held in cramped
cells and suffered beatings and other physical and mental mistreatment.
The Palestinian, Jamiel Abdelatif al Banna, said he suffered "blows to
the head that caused him to lose consciousness, was detained in an
underground place without light for three weeks and deprived of food and
sleep."
The decision by Garzon, known around the world for ordering the arrest
of former Chilean dictator Augusto Pinochet in London in 1998, was unrelated
to another investigation by the judge into six officials of the former US
administration of George W. Bush over alleged torture at Guantanamo Bay.
Prosecutors this month issued an official request to the judge to drop
that probe, arguing that the complaint targets officials who did not have
the power to make decisions but who simply "drafted non-binding judicial
reports."
Spain since 2005 has assumed the principle of universal jurisdiction in
alleged cases of crimes against humanity, genocide, and terrorism. But it
can only proceed when any such cases of the alleged crimes are not already
subject to a legal procedure in the country involved.
Several human rights groups have asked judges in different countries to
indict Bush administration officials over the camp, which US President
Barack Obama has vowed to close by January 2010.
More than 800 detainees have been held at the US military prison since
2002.
Some 240 people are still there. About 60 of them have been deemed
eligible for release, but the Obama administration is struggling to arrange
their transfer to a third country.
The Bush administration had charged about 20 of the detainees on
terror-related charges, including two prisoners arrested when they were
still teenagers.
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