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Secrets and Lies | The Nation

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Secrets and Lies

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As the pieces of the puzzle are put into place, a picture emerges of torture not only as official policy but also as a window onto the Bush Administration's strategy in the "war on terror." In the more than eighteen months between September 11 and the invasion of Iraq, the Administration had committed itself to the need for a new paradigm. That paradigm was based on the conviction that in the face of an unprecedented terrorist threat, the President could exercise unprecedented authority--authority even greater than that wielded by Presidents who confronted the real threat of nuclear destruction. This grab for power, justified in legal terms by the torture memos, was premised politically on the notion that the country would allow the Administration to do anything and everything it could to respond to the terrorist attacks, no questions asked. The key components of this expansive definition of executive power have been secrecy, nontransparency, nonaccountability and disinformation.

About the Author

Karen J. Greenberg
Karen J. Greenberg is the Director of the Center on National Security at Fordham Law School and author of the book The...

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As a part of the secrecy and dismantling of accountability structures, facts have become increasingly elusive, deliberately obscured from anyone outside the inner circle. We still do not know the exact number of detainees. We are not sure when, how and where many were apprehended. We do not know where they are held, or under what conditions. To this day, interested parties have had to fight to get the statistics on casualties in the war, on the locations of prisons, on the names and national origins of detainees and recently on the numbers of detainees involved in the hunger strikes at Guantánamo. A government estimate of approximately 14,500 detainees was finally released only in November of this year. Meanwhile, those facts that have been obtained have entered the public sphere largely as the result of persistent FOIA requests. Following former Attorney General John Ashcroft's mandate in October 2001 to fight FOIA requests aggressively, the impulse to withhold information and documents that have traditionally been public has become the trademark of the Bush Administration. In 2001 there were 8 million government classified documents per year. The number has now expanded to 16 million. Moreover, the rate of declassification has decreased significantly, to one-sixth of the average number declassified per year during the second Clinton Administration.

Secrecy persists. Despite a wealth of documents extracted through legal processes and leaks, the Administration continues to try to control the picture that is displayed. Executive summaries of government reports are often at odds with the actual body of the texts, a particular problem when, as in the case of the Church Report, only the summaries are shared. The Administration continues to refuse the release of documents, such as the Jacoby report on Afghanistan and the Green report on Abu Ghraib that might provide further clarification on those held in American detention.

In its attempt to shield the executive branch from accountability, the Administration has systematically attempted to emasculate the US judiciary. The purpose of drafting the Justice Department memos on detainee policy was to deactivate the Constitution in all matters relating to detention during the "war on terror" and to make the Constitution's protector, the courts, wholly irrelevant. These memos conceived law and legalism as obstacles to an effective campaign against terrorists. Law was said to take away the flexibility the executive needed to confront a lethal and ruthless enemy. Bush summed it up in his State of the Union address in 2004: "It is not enough to serve our enemies with legal papers." Indictments are not forceful or violent enough to help us cope with such a ruthless foe. Secretary Rumsfeld reiterated this point in the 2005 National Defense Strategy of the United States: "Our strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism."

This disparagement of the courts, and of the rule of law itself, is a particularly pernicious part of the Administration's new national security paradigm. The country's record on terrorist convictions is low; the most celebrated cases have been overturned due to insufficient evidence and tampering with the evidence. The decision not to try high-value detainees, like Khalid Shaikh Mohammed and Ramzi bin al-Shibh, has never been publicly debated or explained. The revelation of secret dockets in at least one terrorist-related case--a habeas corpus challenge by an Algerian, Mohamed Kamel Bellahouel, suspected of a terrorism-related crime--has raised questions about the possibility of further secret dockets in terrorism related cases. The Graham/Levin amendment pending in the Senate, meanwhile, proposes a legislative repudiation of the Supreme Court's 2004 finding that the detainees at Guantánamo have a right to habeas relief within US courts.

While attempting to hide the facts and gutting the court process, the Administration engages in doublespeak. The public is told repeatedly that the United States does not condone torture, but the stories and facts continue to pour in to the public domain, even in reports penned by the government itself. Denying rather than accounting for torture, moreover, the government refuses to admit facts or reality to the debate. Implied in the ignoring of the facts are assumptions such as if a detainee said it, it isn't fact and if it's in a human rights report, we need pay no heed. Yet, this is the government that took us to war on the basis of the flimsiest of hearsay evidence, warning us of the probability that the "smoking gun" (which is yet to be found) would turn out to be a "mushroom cloud."

Disclaimers, denials and secrecy aside, the record shows that torture has been and is still being practiced in the name of the United States. The outline is clear; there is no further need to connect the dots. There is no need to search for a smoking gun--it's already there in the torture memos. There is instead a need to comprehend the human toll, as well as the "collateral damage" to American democratic processes that has occurred as the government has wrapped itself in overt and indirect defenses of torture. Beyond that, there is the need to bring the story to closure, to re-empower the rule of law and to restore integrity to the realm of fact and its institutional guarantor, the courts.

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