Poisoned Orchard

By Leonard Fein

Published November 11, 2005, issue of November 11, 2005.
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Here’s the scenario: You’re watching television, and suddenly, there’s the president of the United States saying, “We’ve received reports that the nine American soldiers kidnapped last week by terrorists in Iraq are being subjected to brutal torture. This outrage must stop, and it must stop immediately. It is a violation of international law, and it is a violation of the most basic ethical code. The United States will not stand for it, and I want those responsible to know that they will be held accountable for their inhuman behavior.”

Question: Are you watching a presidential news conference, or are you watching a satirical sitcom?

International law is, indeed, quite clear. Article 3 of all four Geneva Conventions of 1949 prohibits “at any time and in any place whatsoever… violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture, [and] outrages upon personal dignity, in particular, humiliating and degrading treatment.” And then there’s the 1985 United Nations Convention Against Torture, a treaty negotiated by the Reagan administration and duly ratified by the Senate, which provides that “no exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.” So if in fact they’re torturing our people, their only excuse is that they are terrorists; they never signed these agreements.

But what’s our excuse? We did sign them. And yet, for all the justifiable outrage after the Abu Ghraib pictures were published — just “a few bad apples” were responsible, right? — it turns out that the Bush administration is now asking Congress to pass a law establishing our right to torture.

So of course you must be watching a satire; President Bush cannot promise to hold those responsible for torture accountable because he is fully aware that when the day of reckoning comes, Vice President Dick Cheney and Defense Secretary Donald Rumsfeld will be called to testify. And if legal proceedings follow — what else does accountability mean? — they will be indicted.

Whatever sliver of ambiguity there may have been before last month about the involvement of senior officials in our torture of detainees in Iraq and Afghanistan, that ambiguity is over and done. Witness the reaction of the administration to the McCain amendment, approved in a 90-9 Senate vote on October 5 and reaffirmed unanimously on November 4, an amendment that would outlaw “cruel, inhuman or degrading treatment or punishment” of anyone detained by any agency of the American government anywhere in the world.

Against sustained opposition from the administration, the Senate registered a truly extraordinary consensus, put forward by former prisoner of war and torture victim Senator John McCain as an amendment to the military appropriations bill. The lopsided votes were helped along by the many flag officers who advocated the amendment’s passage and in particular by testimony in its favor by former secretary of state Colin Powell and General John Shalikashvili, like Powell a former chairman of the Joint Chiefs of Staff. And for sure the “yea” vote was not hurt by the withering of popular support for the president and his people. (If this administration were listed on the stock exchange, it would by now be approaching junk bond status.)

Bush has said that if the $440 billion appropriations bill in its amended form reaches his desk, he will veto it. The administration argues that the prohibition of torture does not apply to foreigners held outside the United States or to “unlawful combatants.” (The definition of the term “unlawful combatants” is vague; accordingly, it is difficult to know what legal code, if any, governs their treatment.)

That, presumably, is how the president can, with a straight face, assert both that “we do not torture” and that an amendment saying “we must not torture” is objectionable to him. The McCain amendment offers a clear and explicit prohibition: “No,” once and for all, to torture. “No” to the secret facilities the CIA operates in several foreign countries, reportedly including Romania and Poland. And Bush responds: “No” to such a prohibition.

The president, the vice president and the secretary of defense are all on record as distancing the United States from the Geneva Conventions — to say nothing of Attorney General Alberto Gonzales who, when he was White House counsel, famously described the them as “obsolete.” And Cheney, along with CIA Director Peter Goss, have pleaded with McCain at least to add to the pending legislation a clause that would exempt the CIA from its restrictions — a position so outlandish that the Washington Post editorial on the matter was entitled “Vice President for Torture.”

As the Post put it, the vice president is in effect arguing that Congress should legally authorize the use torture as an instrument of interrogation. That would put us on record as the only country in the world to declare such a right, in bold rejection of the plain language of solemn treaties and of domestic law.

It is against this shameful background that the United States seeks to promote democracy and the rule of law and transparency around the world. But who can any longer take that effort seriously?

This administration has already done grievous damage to the stature of the United States. Now, adding injury to injury, it seeks to make legitimate space for torture, a policy that would put all future American POWs at dramatically increased risk.

The specific policies not merely condoned but encouraged by the president and vice president themselves — including, it now seems, promotion by lies and distortions of a miserable war — surely suggest, if they do not compel, impeachment. Or, if that is too much for a distressed nation to swallow, then at the least a full-fledged inquiry by an independent commission or special prosecutor.

Torture: It is not “a few bad apples” who are to blame; it is those who have wittingly poisoned the orchard.

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