"I wouldn't join the International Criminal Court. It's a body based in The Hague where unaccountable judges and prosecutors can pull our troops or diplomats up for trial.
"And I wouldn't join it. And I understand that in certain capitals around the world that that wasn't a popular move. But it's the right move not to join a foreign court that could -- where our people could be prosecuted." - George W. Bush 09/30/04
"Men without conscience are capable of any cruelty the human mind can imagine." - Dick Cheney 01/26/05
Nat Hentoff addresses the central issue of Presidential authority in the torture scandal, in the context of the Senate's overwhelming vote to include an anti-torture provision in the pending defense appropriations bill: John McCain v. Bush: Defying the president, the Senate condemns torturing anyone in American custody anywhere Village Voice 10/14/05.
Hentoff gives that Maverick McCain a bit too much credit on this one. Don't get me wrong. I'm glad to see McCain is objecting to the torture and making some kind of issue out of it. And the reasons mention in this piece by Hentoff probably have a lot to do with it.
But the measure is essentially cosmetic. As he writes, the Republican House passed the bill without the anti-torture provision. And Bush has threatened to veto it in any case. The Senate negotiators in the conference committee could agree to a compromise version of the bill without the provision, which would then go back to be approved by both Houses. That will allow the Republican Senators to vote against the anti-torture provision after they voted for it.
And the torture being practiced in the Bush Gulag is already illegal several times over, both through domestic legislation and throughbinding international treaties and law. If Bush and Rummy are ignoring those laws, why would they obey a new one? Until the Republican Congress is prepared to hold a serious investigation of the failures of command responsibility and civilian authority, it all looks like cosmetic fluff to me.
Hentoff is right about the question of Executive authority, though:
Bush insistently believes that, as commander in chief, he i s the law, and neither Congress nor the courts have any right to interfere with his conduct in the war on terrorism.
When there are adverse court decisions partially disagreeing with him, Bush grudgingly appears to back off briefly, but he continues to move in the courts to assure his supremacy.
Tony Lewis, in a New York Times op-ed not put behind subscription, also addressed the issue: License to Torture by Anthony Lewis New York Times 10/14/05 The Judy Miller disgrace hasn't yet made having one's work appear in the Times a kiss of death to credibility to the writer.
The Bush administration has often resisted checks on executive branch decisions taken under the heading of war power. In memorandums in 2002 and 2003 on the torture of prisoners, for example, the administration argued that the president could order the use of torture even if it was forbidden by treaty or by Congressional statute.
When those memorandums leaked out last year, the administration withdrew them. But Alberto Gonzales, who as White House counsel rejected objections to them, is now attorney general. And one of their principal authors, John Yoo, now a law professor at the University of California, Berkeley, continues to argue forcefully for dominant presidential power. To hear him tell it, the framers constructed a political system on the model of King George III.
The administration has also maintained that decisions taken under the president's power as commander in chief should not be subject to effective review by the courts. Thus, it argued that detaining a citizen as an enemy combatant could be justified by a government statement of alleged facts, without any meaningful legal process to verify them.
Lewis worries that Harriet Miers will be willing to uphold the Bush dynasty's royalist view:
Harriet Miers has no public record on these issues. But Professor Yoo, writing in The Washington Post after her nomination, said, "She may be one of the key supporters in the Bush administration of staying the course on legal issues arising from the war on terrorism." He did not explain.
Hentoff addressed the torture policy in a column the previous week: The Broken Constitution: More eyewitnesses to U.S. torture of detainees pierce the Bush administration's cover-up by Nat Hentoff Village Voice 10/07/05.
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.
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