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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Thursday, June 08, 2006

Defining America away

By Hume's Ghost

"If cruelty is no longer declared unlawful, but instead is applied as a matter of policy, it alters the fundamental relationship of man to government. It destroys the whole notion of individual rights. The Constitution recognizes that man has an inherent right, not bestowed by the state or laws, to personal dignity, including the right to be free of cruelty. It applies to all human beings, not just in America--even those designated as 'unlawful enemy combatants.' If you make this exception, the whole Constitution crumbles. It's a transformative issue." - former general counsel of the U.S. Navy Alberto J. Mora, in "The Memo"

In A.L.'s "Defining America Down" post he noted that for the last four/five years the administration has been defining America's principles down. I think it's worse than that. I think our principles are being defined away. We used to be for human rights. Those have been defined away. We used to be for the rule of law. That has been defined away, too.

Yes, one can point out that there have been times in our past that we failed to live up to those ideals, to times that they were betrayed. But they were still there, and when an injustice was done, America could be called to task by pointing out we were failing to live up to a promise that was made in the Declaration of Independence and in the Bill of Rights. A promise that all humans are to be treated fairly, humanely, and equally before the law. When Frederick Douglass famously excoriated the United States on the Fourth of July for its hypocrisy in tolerating slavery, he pointed to the Declaration of Independence and the Bill of Rights and reminded the nation that it was failing to live up to the principles that it claimed to hold sacrosanct.

But if the current administration gets its way, no one will be able to say we're failing to live up to our principles, because our principles will have been replaced with empty rhetoric that "is designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind." Rhetoric like: "extraordinary rendition," "enhanced interrogation technique," and "maximum flexibility." How else can you describe a statement like the following from George W. Bush on June 26, 2003 as anything but pure wind?

Torture anywhere is an affront to human dignity everywhere. We are committed to building a world where human rights are respected and protected by the rule of law…The United States is committed to the worldwide elimination of torture and we are leading this fight by example.
Leading by example, how? By kidnapping people and sending people to countries that boil prisoners alive to be tortured? By "interrogating" people to death? By defining torture so narrowly that barely anything can be said to be torture? By arguing the right to torture people on technicalities? By arguing that those detained do not have the right to challenge torture?

In A.L.'s post he referenced a LA Times report that the Pentagon, with Cheney leading the charge, is now seeking to drop Article 3 of the Geneva Conventions from the Army Field Guide Manual which prohibits “humiliating and degrading treatment”. Unlike the other provisions where administration lawyers have sought to argue for the right to treat people cruely and inhumanely on technical grounds, there is no legal argument to be made for this. The provisions they seek to abandon apply to any person detained, regardless of their status as a POW. This is a flat our rebuke of the basic standards of human decency that the world agreed upon after World War II. Basic standards of decency meant to separate us from the people who committed the horrors of the Holocaust.

What strikes me is how shameless Cheney and his ideological allies are. They don't care if Congress passed legislation meant to suggest that cruel and inhumane treatment is unacceptable. They don't care if we can't bring terrorists to justice because the means by which we treat them are not admissable in court.*

They don’t care if experts believe that abandoning these basic standards of human decency will put our troops at risk around the world. They don't care if abandoning these standards turns opinion against us in the Arab world, where winning hearts and minds is a vital component of confronting terrorism. They don't care if those detained are radicalized by harsh treatment, creating the very threat they are supposed to be preventing.

They don’t care if the entire world, including our closest allies, begins to think that America is a rogue nation that will not follow internationally agreed upon rules of conduct. They do not care if these allies are reluctant to turn prisoners over to us because they fear that we will not treat them in a manner consistent with their laws prohibiting inhumane treatment. They do not care if the world thinks that we are hypocrites for declaring our commitment to human rights while quietly putting forth legal arguments that rules meant to protect human rights do not apply.

They don’t care if intelligence officials tell them that the use of torture as an interrogation method is unreliable, yielding more noise than intelligence. They don’t care if torturing Ibn al-Shaykh al-Libi until he confessed the untrue statement that al Qaeda was being trained in chemical weapons in Iraq helped lead us into a costly and unnecessary war.

They don’t care if some grunts, a “few bad apples”, have to take the blame for their decisions to remove the guidelines meant to give our military clear standards of treatment to abide by. They don’t care if it has been demonstrated clearly that the abuses that have occurred are a result of upper level decisions to abandon the clear standards of treatment enshrined in the Geneva Conventions in favor of harsher interrogation tactics. They don't care if they were warned in advance that the legal theories they were arguing would invite abuse. They don't care if the abuses that took place at Abu Ghraib took place after interrogators under investigation for abuses (resulting in deaths ruled homicide) at Bagram were transferred there. They don't care if the abuses took place after the man who was in charge of Guantanamo, General Geoffrey Miller, where the Geneva Conventions did not apply, was transferred to Abu Ghraib to "Gitmo-ize" it.

They don't care about soldiers like Captain Ian Fishback begging for clear standards of conduct, bravely asking/stating

Do we sacrifice our ideals in order to preserve security? Terrorism inspires fear and suppresses ideals like freedom and individual rights. Overcoming the fear posed by terrorist threats is a tremendous test of our courage. Will we confront danger and adversity in order to preserve our ideals, or will our courage and commitment to individual rights wither at the prospect of sacrifice? My response is simple. If we abandon our ideals in the face of adversity and aggression, then those ideals were never really in our possession. I would rather die fighting than give up even the smallest part of the idea that is "America."
They don't care about interrogators like Erik Saar who warn

The price we are paying for Gitmo is too high given the meager results we are getting. Guantanamo is a rallying cry throughout the Arab and Muslim world, and even some of our closest allies oppose us in this venture. The bottom line is this: the minimal intelligence we are gathering from those held in Cuba is not worth the harm we are doing to our international reputation. It's costing us our moral leadership in the world. How long until we pause, look over our shoulder, and find no one is following?
They don't care that reports have shown that the bulk of people held at Gitmo don't belong there. They don't care if the ICRC reports that "certain CF military intelligence officers told the ICRC that in their estimate between 70% and 90% of the persons deprived of their liberty in Iraq had been arrested by mistake." They don't care.

The question is: do we care? Do we care if our government tells us that freedom from cruel, degrading, and inhumane treatment are not basic human rights? In How Would A Patriot Act?, Glenn demonstrates that every power the administration claims to have to treat the targets of the "war on terror" inhumanely applies equally to American citizens. He writes

In its January 19, 2006, defense of the president, the Justice Department actually argued that the president's powers include "at minimum, discretion to employ the traditional incidents of the use of military force" within the United States and against U.S. citizens (p. 10 - 11). The memo also said the president can use these powers "wherever [terrorists] may be - on United States soil or abroad." And these powers, in turn, "include all that is necessary and proper for carrying these powers into execution" (p. 7).

And not only do they have the right to use those war powers against Americans on U.S. soil, they have the right to use them even if Congress makes it a crime to do so or the courts rule that doing so is illegal. Put another way, the administration has now flatly stated that whatever it is allowed to do to our enemies, it can also do to our citizens, and that neither Congress nor the courts can stop them.

Jose Padilla is an American citizen who lost the rights promised him by the Constitution because of nothing more than George Bush's fiat. If the Constitution does not protect Jose Padilla, it does not protect you. As Eric Alterman succinctly put it, "If Jose Padilla lives in a police state, then so do you."

One thing I believe the administration has correct is that we need to help spread democracy around the world. But democracy can not be spread by declaring that the most fundamental principles in our Constitution apply only to ourselves, or worse, only when George W. Bush decides they apply.

When John Yoo defined the President's powers to be without limit, he defined America away.

*Although the administraton, with the help of Congress, is working on making torture admissable in court.

UPDATE: If you're interested to know what argument the administration will be using to explain abandoning the minimum standards of humane treatment in the Geneva Conventions, Dave has written about it here, as well as the implications this might have in the future.

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