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The Torture Election | The Nation

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The Torture Election

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Searching for a Rallying Point

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Jonathan Schell
Jonathan Schell is the Lannan Fellow at The Nation Institute and teaches a course on the nuclear dilemma at...

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After 9/11, the US invented a new kind of borderless, pre-emptive warfare, plunging the world into an endless cycle of violence.

The United States is no Soviet Union—and yet it has set up machinery that satisfies certain tendencies that are in the genetic code of totalitarianism.

Still, the unpopularity of the war in Iraq had left a gap in the formula that needed to be filled. For electoral purposes, the President's "caliphate" speech (he returned to the bizarre theme a few times in later statements, then dropped it) amounted to a framework without a content, a kind of splendid platter with no food on it. ("Stop the caliphate!" would make a bewildering bumper sticker.) Some specific rallying point for the campaign was needed, some concrete proposal related to the war on terror, but not to Iraq, on which Republicans would vote yea, the Democrats nay and the voters would side with the Republicans. Two candidates were found. One was the disclosure by the New York Times of the warrantless wiretapping of calls between Americans and foreigners, a program Bush had ordered in secret. This was in violation of the Foreign Intelligence Surveillance Act, passed by Congress in 1978, which set up a system requiring warrants for all such taps. Before the order's disclosure, Bush had flatly lied to the public about its existence. In April 2004 he had said, "Now, by the way, any time you hear the United States government talking about wiretap, it requires--a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution." But when his new program was revealed and he was caught out in his lie, Bush, instead of expressing contrition, went on the offensive, asserting that it was not his act but the Times's decision to reveal it that was "shameful" and announcing that he had not only ordered the warrantless wiretapping program but renewed the order some thirty times. The Administration's political calculation was that any public concern about his lying and secret lawbreaking would be trumped by its fear of terrorism. Karl Rove duly included a defense of the warrantless wiretapping in his election-year blueprint in January.

A pattern had been established. Actions taken in pursuit of the war on terror but in violation of the law would be exploited for political advantage.

The second and more significant candidate concerned the handling of detainees, including their abuse and torture. In the unfolding constitutional struggle, the Supreme Court, though containing a majority of Republican-appointed Justices, had struck out on an independent course in a series of decisions. In the case of Hamdi v. Rumsfeld, the Court ruled that the President had no right to designate someone an "enemy combatant" on his own authority but must accept the participation of courts in the matter. It was this decision that produced Sandra Day O'Connor's memorable declaration that "a state of war is not a blank check for the President." In Rasul v. Bush, the Court ruled that detainees at Guantánamo must be granted habeas corpus rights. Finally, in Hamdan v. Rumsfeld, the most important and sweeping of the decisions, the Court ruled that military tribunals that Bush had set up on his own, self-granted authority were unconstitutional. In arriving at this decision, the Court set forth a wholesale rejection of Bush's aggrandizement of his own powers. The Bush order had placed the detainees outside any existing framework of law, domestic or international. Now the Court ruled that he had no authority to set up the tribunals independent of Congress--thus restoring a traditional check on executive power. Second, it declared that, contrary to Administration claims, the rules for treatment of detainees contained in the Geneva Conventions applied to detainees in the war on terror. In other words, international law applied. Third, it ruled that "the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction," including the Uniform Code of Military Justice, which forbids torture as well as "cruel and unusual punishments." So domestic law applied too. It was by now well-known that in a program ordered by Bush, the CIA had used waterboarding and other tortures and abuses, all of which, though not mentioned specifically by the Court, now had presumably been forbidden by its decision.

When the Hamdan decision came down, many liberal hats were thrown in the air. But where liberals saw judicial rout, the White House again saw political opportunity. (Others, including David Brooks of the New York Times, agreed that the abuse issue could be used by the Republicans to gain advantage.) Now an extraordinary chapter in American politics began to unfold. According to the Supreme Court, the President had committed grossly unconstitutional acts. If anyone cared to notice, he had almost certainly committed impeachable offenses as well.

Constitutional rulings, not impeachments, are the business of the Supreme Court, but in the wake of its rulings, it was clear that the case that the President, even if judged by the strictest standards, has committed impeachable offenses was greatly strengthened. Articles of impeachment were drawn up against President Richard Nixon for illegal wiretapping and for lying to the public. Ordering torture and other abuses in secret, with self-given authority, would appear to fall even more clearly into the category of impeachable "high crimes and misdemeanors." The legality of a war based on false evidence of danger, though not addressed by the Court, must be considered another prime candidate. But impeachment is a political process par excellence, and the fact is that a will to impeach President Bush, though increasing among the public, is still very weak in Congress, where impeachment must take place. Certainly one of the prime reasons for this is that the less drastic remedy for abuses, an election, is at hand. And one of the peculiarities of the present moment is that abuses for which impeachment of the President is the logical response are now to be faced by the oblique method of an election of members of Congress.

Yet once again, Bush, rather than expressing regret, or even defending himself, went on the attack. In obedience to the strategy of drawing a distinction between Republicans and Democrats on a non-Iraq issue relating to terrorism, he sought to make just these abuses, including the practice of torture, the core of his party's appeal in the Congressional election. If successful, it would be as if when President Nixon had been accused of illegal wiretapping, lying and obstruction of justice, he had, instead of being subjected to articles of impeachment and thrown out of office, beaten the charge by muscling Congress into legislative complicity with his high crimes and then gone on to lead his party to victory in the next Congressional elections. (In actuality, of course, the Democrats won in a landslide in 1974.)

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