With all the media attention given to the past presidential election campaign, the president-elect’s choices for his cabinet and other posts, the bailout of the United States economy, and the residual concern for the costly “war� (i.e., occupation) of Iraq, it is easy to lose sight of the fact that the Bush administration is continuing to imprison, torture and abuse so-called “enemy combatants� without trial or recourse to courts of law, in explicit violation of the U.S. Constitution, international treaties and laws, as well as elementary standards of morality.
In spite of three shattering legal defeats at the hands of a very conservative U.S. Supreme Court, in Rasul v. Bush (2004), Hamden v. Rumsfeld (2006) and Boumedienne v. Bush (2008), the Bush administration has made virtually no discernible effort, other than a couple of mock show trials, to curb these abuses, or speak out against them, or even comply with the judgments and orders of the highest court in the land. It is as if the law didn’t exist, or didn’t apply to them. As if morality, too, were irrelevant. As if the American people and the rest of the world weren’t even looking.
In response to the courts and to public outcry, the Bush administration has simply redoubled the intensity and secrecy of their continuing criminal abuse of “detainees� at Guantanamo, Abu Ghraib, Bagram, Kandahar and an unknown number of other U.S.-controlled “black sites,� where “detainees� (most of whom have never seen “combat,� or been involved in, or charged with, criminal activity of any kind ) continue to be hung in chains, beaten, subjected to sensory deprivation and sexual abuse. (This last is a peculiarly Bushite-American form of human degradation.) Many of these cases of “enhanced� interrogation have resulted in death.
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In Boumedienne v. Bush, a five to four majority of the Supreme Court held that the denial of habeas corpus violates the U.S. Constitution’s guarantee of the right of access to the courts of law. Senator Barack Obama promptly lauded the decision. Senator John McCain, himself reported to be a victim of torture, called Boumedienne “one of the worst decisions in the history of the country.� Justice Antonin Scalia, in dissent, warned that if detainees were released, they would return to combat against the United States. The question is, would they? And does this mean we must detain them forever?
Justice Scalia is right — 50 percent of the time. Detainees who have been released so far seem to fall into two different groups, roughly equal in size, no matter on what grounds, or lack of grounds, they were originally apprehended: Half of them are broken men, never to return to normal, hounded by post traumatic stress resulting from isolation and torture.
The other half, however, emerge in a state of rage and fury against the United States, seeking revenge, and using their stories to goad decent people throughout the Middle East and worldwide to rise up against the Bush-Cheney version of an evil American empire. This is the fundamental reason why U.S. “victory� is not and never will be possible in Iraq or anywhere else — unless we change Washington.
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As Jay Rockefeller, chairman of the Senate Intelligence Committee, has said, there has never been a single documented case showing that information obtained from “enhanced� interrogation has prevented any sort of terrorist attack, or yielded valuable and reliable information that could not have been obtained by traditional, lawful and humane means.
But woe to those who stand up for justice. When U.S. military lawyers have stood up for decency and the rule of law, such as General Anthony Taguba and Navy Lieutenant Commander Charles Swift, they have been demoted in rank, and hounded out of the service. They deserve every honor and full restitution.
There is little doubt that a string of conspiring officials in the Bush administration stands to face criminal prosecution, if not in U.S. courts, then surely in the courts of other allied countries and international tribunals, applying the principles of the U.S.-designed Nuremberg doctrine. The potential defendants include: John Yoo, Jay Bybee, Robert Delahunt, Alberto Gonzales, David Addington, William Haynes, and, yes, Dick Cheney and Donald Rumsfeld.
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As to citizen George W. Bush, after he leaves office on Jan. 20, that’s a special case. After all, he occupied the iconic post of president of the United States. Yet, he was under oath faithfully to execute the law. He failed in that duty. What can be said in mitigation? Bush was repeatedly assured by all those mentioned above that, as a “wartime� president and commander-in-chief, he had the exclusive and lawful authority to declare torture “perfectly legal,� and he was empowered to set up any detainment prison conditions and processes he liked, designed to effect torture and abuse, regardless of the law. And with that advice, that’s exactly what he did.
The problem is this: A mistaken view of the law is not a defense. Furthermore, the Nuremberg principle reaches every level of government, from bottom to top. No one is above the law. No one gets to ride off, scott-free, into the Western setting sun, with saddle bags full of ill-gotten gains, to retire in comfort at his ranch — unless we, the American people, let him. We have a duty to prosecute.
More than 100 attorneys and former prosecutors are known to be standing ready to take cases, state by state, on the question of Bush-Cheney liability for war of aggression and murder in Iraq. (See “Question of criminal prosecution of George W. Bush,� in The Lakeville Journal, Sept. 4, 2008.) Recently, a planning meeting of lawyers and prosecutors was held in Andover, Mass., to prepare for these prosecutions.
To that we now add the national and international prosecution of the highest conspirators and players in the Bush administration for their engagement in the policy and practice of torture, war crimes and crimes against humanity. If any cause could bring a prosecuting attorney out of retirement, this is it.
Sharon resident Anthony Piel is a former director and legal counsel of the World Health Organization.
