A Fabric of Illegality

Now we know the truth: For months in 2002, when George W. Bush and his top lieutenants were publicly insisting on their adherence to the Geneva Conventions, they were privately torpedoing efforts by Alberto Mora, the Navy's courageous general counsel, to prevent, and establish accountability for, brutal treatment of detainees. Two years before the publication of the Abu Ghraib photos, Mora confronted the highest-level Pentagon officials over abuse of prisoners at Guantánamo and warned the Administration that its interrogation policies invited torture and cruelty. The New Yorker's Jane Mayer revealed Mora's lonely campaign just as Kofi Annan and a team of United Nations investigators declared Guantánamo a torture camp that should be closed and its prisoners either tried or released.

If the Administration has so far been able to resist demands for accountability, whether from the Pentagon's own lawyers or the UN, it is because of the collusion of the courts and Congress in abuses both international and within the United States. Exhibit A: the grotesque February 16 ruling by US District Judge David Trager denying his court's jurisdiction over the rendition to Syria and torture of Canadian national Maher Arar, who spent nearly a year in secret captivity (see David Cole on page 5). Exhibit B: the bipartisan effort to avoid Congressional investigation of the NSA's warrantless surveillance of American citizens.

Although key leaders remain angry at the White House for not seeking Congressional approval for the NSA wiretap program, debate over surveillance has been sidelined. Leaders from both parties are lining up behind proposals to bleach the stain of illegality from warrantless wiretaps--either by incorporating warrantless eavesdropping into the Foreign Intelligence Surveillance Act or by simply declaring warrantless taps legal. Lost is the simple fact that both plans broaden domestic spying far beyond the Patriot Act and make hash of the venerable constitutional demand for search warrants.

That Guantánamo and NSA spying on citizens--the Administration's abuses abroad and at home--are part of the same fabric of illegality was brought home by a February 14 House national security subcommittee hearing. Led by Christopher Shays and Henry Waxman, the subcommittee heard firsthand evidence of what becomes of truth-tellers in the Bush military and intelligence services.

In this sense Mora was lucky: He was merely blocked at every turn. He wasn't demoted like Specialist Samuel Provance, who was kicked downstairs after confronting a general with horrifying details about interrogations at Abu Ghraib. Mora wasn't declared by his bosses to be mentally ill, like NSA whistleblower Russell Tice--who indicated to the subcommittee that the agency's illegal "black ops" extend well beyond the wiretap program. No one spread false rumors about Mora's sex life, as the Defense Intelligence Agency did about Lieut. Col. Anthony Shaffer after he revealed the extent of the government's pre-9/11 knowledge about Mohamed Atta (gained through the "Able Danger" data-mining program).

The dark arts of trashing whistleblowers, who are supposedly protected by federal law, add yet another layer of illegality to the "war on terror." Still, Congress and the courts dodge their responsibilities while the White House maintains its right to stand above the law--and torture, imprisonment without trial and warrantless spying on Americans go on, and on.

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