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For his first presidential act upon taking office on Jan. 20 last year, President Obama signed an executive order requiring the closure of the Guantanamo Bay detention facility within a year. Many liberals and human rights activists breathed a sigh of relief as Obama promised to return the U.S. to the “moral high ground” and put an end to a shameful chapter in modern American history. One year later and that high ground appears beyond the reach of the Obama administration, as Guantanamo Bay prison remains open with the White House lacking a comprehensive plan to deal with its estimated 245 detainees.  

Obama’s laudable plan to close the prison has stalled for various reasons, some of which are beyond his control. The first reason relates to his attempts to re-house some of the prisoners on American soil. Local senators and governors have fiercely objected to the notion that their state should house suspected terrorists on the grounds that the new prisoners could endanger the safety of Americans. This nonsensical affirmation has been echoed by other partisan commentators and TV networks, despite the fact that the U.S. already houses many convicted al-Qaeda terrorists, as well as various other dangerous criminals. 

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The foiled terrorist attack on Christmas Day served as a timely reminder that the U.S. remains vulnerable to plots from Al-Qaeda. As more details emerge about the security lapses that allowed Umar Farouk Abdulmutallab to board his flight to Amsterdam and later to Detroit, President Barack Obama has come under intense criticism from opportunist Republicans over his handling of the so-called War on Terror. Yet instead of dodging the role as a partisan punching bag, Obama appears willing to engage in domestic squabbling, at great cost to his foreign agenda.

Obama’s announcement on January 4 that the U.S. was to introduce tougher airport screening for “security risk” countries underlined the air of desperation and ineptitude that has gripped the White House since December 25. The countries included on the list were Cuba, Iran, Sudan, Syria, Afghanistan, Algeria, Iraq, Lebanon, Libya, Nigeria, Pakistan, Saudi Arabia, Somalia and Yemen. While some of the countries are merely the usual suspects, the inclusion of Cuba seems anomalous. Its appearance is explained by its unfortunate presence on another U.S.-produced list: state sponsors of terrorism. Nevertheless, many experts believe its inclusion is anachronistic, given that there is no current evidence to support the theory that Cuba sponsors terrorists, especially not those linked to Al-Qaeda. Many Cubans hoped that Obama’s election would help restore diplomatic relations between the two nations, and indeed the Obama administration has made tentative steps to this effect. The guileless inclusion of Cuba on a “security risk” list needlessly hinders potential rapprochement.

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While on the campaign trail for the 2008 election Barack Obama often extolled the virtues of the Afghanistan War, contrasting it sharply with the disastrous Iraq War which he had vociferously protested.  A year after winning that election, he faces arguably his toughest political decision to date: should he send more troops to Afghanistan? The debate within the White House appears to be focused on how Obama should continue this war (more troops or more sophisticated technology such as unmanned drones) as opposed to why he should. In reality, sending in more troops is delaying the inevitable and Obama must put an end to this war as soon as possible.

The first reason to end this war is the lack of clarity over the war’s objective. In March, the President stated that his goal in Afghanistan was to “to disrupt, dismantle, and defeat al-Qaeda”. Yet most experts will tell you that al-Qaeda is a diminished force which has largely fled Afghanistan. It would be more prudent for the U.S. to concentrate on defeating al-Qaeda in countries such as Yemen and Somalia, which have recently become a hotbed for Islamic extremists, while paying more attention to the tinderbox that is Pakistan. Unfortunately, the U.S. is bogged down in a perpetual battle with the Taliban at huge human cost for all concerned. The War in Afghanistan has evolved into another nation-building exercise, despite the fact that Obama stated that “We are not going to be able to rebuild Afghanistan into a Jeffersonian democracy“.

The military is ostensibly in Afghanistan to protect the U.S. from future al-Qaeda attacks, yet how many of al-Qaeda’s most devastating attacks have been organized from Afghanistan? 9/11? Yes. The attacks provided the casus belli for the war. The 2002 Bali Bombings? No. They were planned in Thailand. The 2004 Madrid Bombings? No. They were planned in Spain and North Africa. The 2005 London Bombings? No. They were planned in England. The idea that the War in Afghanistan will protect the U.S. from future attacks is naïve and myopic.

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The recent torching of over 100 NATO military depots, a Pentagon official claimed, ‘has had an overall insignificant impact to date’ in the US’s strenuous effort to stabilize Afghanistan.  The comment couldn’t be further from the truth.

This significant attack did not occur in Afghanistan but on the US’s new front in the War on Terror – the tribal areas of Pakistan.  The Guardian and The Boston Globe identified the Taliban as the perpetrators, while other outlets, like the International Herald Tribune, said ‘Islamic militants’  were too blame.  There is speculation, however, that the attackers had no affiliation to either identity, and that in fact, they were simply Pashtun tribesmen defending their ancestral homeland, their tribal codes of honor, and their religion of Islam.  But how can the US distinguish between the Taliban, al-Qaeda and Pashtun militants?  The label of ‘terrorist’ remains loosely defined but yet dangerous as ever.

When the War on Terror began in 2002, the US identified the Afghan government, then controlled by the Taliban, and the terror network they supported, al-Qaeda, as the primary enemies.  Bush invaded Afghanistan, captured Kabul, and overthrew the Taliban stronghold – which eventually found a safe haven in Pakistan’s tribal areas.  Bush also gave millions of dollars to support his military alliance with Musharraf, who eventually conducted military raids in the ‘Talibanized’ tribal areas dominated both in population and culture by Pashtuns.

When the Taliban regrouped after the initial battle for Afghanistan, Bush blamed Musharraf for his lackluster commitment in destroying the terror cells in the tribal areas.  As a result of Musharraf’s poor performance, Bush increased the US military’s presence in the Pashtun dominated tribal areas.  This diplomatic blunder created the greatest mishap of the Bush administrations War on Terror – the little consideration paid to the intricacies of tribal culture and the fierce resistance with which the Pashtuns have historically shown towards foreign invasion.

The Pashtun tribe is the largest ethnic group in both Afghanistan and Pakistan.  Their geographic region extends along the border from northern Pakistan into southern Afghanistan.  The Pashtuns are historically a fierce and very proud people, as they have ousted the likes of Alexander the Great, the British Empire, and the Soviet Union from its ancient turf.  The Pashtuns govern themselves on the Pashtunwali, the traditional tribal code that strictly governs behavior and personal honor – it also provides warm hospitality to visitors – hence why their Muslim brothers of the Taliban were welcomed after the overthrow of the Afghan government in 2002.  Moreover, they are proud Muslims and adhere closely to the Islamic law, customs and values.

The Pashtuns today, my colleague Frankie Martin notes, ‘feel threatened by the Pakistani government and military, composed mainly of urban ethnic Punjabis; the government in Afghanistan, composed mainly of Tajiks, Uzbeks, and Hazaras’.  Recently, the Pashtuns are threatened with the US’s cross border raids into tribal villages in pursuit of terrorists, as well as with US drone attacks that often claim the lives of innocent civilians.  It should come as no surprise, then, that many Pashtuns are identifying and sympathizing with the religious rhetoric and zealotry of the Taliban’s mullahs and al-Qaeda’s charismatic leaders.

Poor diplomacy and culturally insensitive policies towards the Pashtuns have proven to be the US’s achilles heal in Afghanistan.  If Obama seeks to change the direction of the war, he must avoid the disastrous policies initiated by President Bush.

Cornering the Taliban and al-Qaeda in the tribal areas will be an unsuccessful military maneuver if the US does not win the respect and favor of the Pashtun people.  A surge of up to 20,000 soldiers will only encourage the Pashtuns to defend their culture and religion from outside influences.  Obama should engage in consistent dialogues with Pashtun leaders in an effort to establish a relationship of mutual cooperation.  Listening to the fears and concerns of the Pashtuns can help Obama swing the pendulum away from the Taliban and into the US’s court, a shift drastically needed to bring stability to Afghanistan.

Most importantly, Obama must be extremely careful with how he labels ‘terrorists’.  Will a terrorist be anyone that attacks US or NATO military convoys?  Hopefully not.  The Pashtuns are not terrorists like members of  al-Qaeda.  Al-Qaeda is a global network that brings terror to other countries.  The Pashtuns simply defend their homeland, their culture and their religion from foreign invasion.  If US or NATO military outposts are attacked on Pashtun grounds in the future, and if the US declares war on the entire Pashtun tribe, Obama should then prepare for a long, arduous and probably fruitless guerilla war.

December 10, 1948, in the aftermath of World War II, world came together to perform a historic act: the unanimous passage of the Universal Declaration of Human Rights (UDHR).

Sixty years later, with the invasion of Iraq and Afghanistan, the growing “war on terror”, genocide in Sudan, rape in DRC, and nearly half of the world’s 6.7 billion people living on less than $2 a day, Amnesty International reports that the world’s leaders “owe an apology for failing to deliver on the promise of justice and equality.”

As a reminder, Amnesty teamed up with Link TV: Television Without Borders and 16 outspoken musicians to produce a video message called “The Price of Silence,” urging governments to take the 60th anniversary as an opportunity for action not just celebration.

Among the musicians, several have fled oppressive regimes:  Yungchen Lhamo escaped a Chinese labor camp in Tibet; Alicia Partnoy survived Argentina’s secret detention camps; Emmanuel Jal was forced to join a Sudanese rebel army when he was just six years old; Chiwoniso recently fled the political and economic unrest of Zimbabwe.

But while most of us are well versed in the civil and political rights set out in the Declaration and know a violation when we see one, the response is quite different when we talk about economic, social, and cultural rights.

For example, the UDHR also proclaims that:

Article 21 “Everyone has the right of equal access to public service in his country.”

Article 23 “Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.”

Article 25 “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”

Article 26 “Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages.”

Why, then, have we adopted a political and economic model that denies these rights to billions of people?

Irene Khan, the Secretary General of Amnesty International comments:

“We can’t ignore the injustice, the inequality, and the impunity that have become the hallmarks of our time.  And we need, at this moment, to think of what are the biggest threats to human rights.  To my mind, the biggest threat is the threat that the poor face, that their rights are not being recognized, are not being realized, may never be realized, unless we all see both economic and social rights and civil and political rights with equal importance […] It is very important that we focus the implementation, making real the Universal Declaration of Human Rights, precisely on those who have been denied its benefit for the last 60 years.”

With Obama poised to take office next month, his transition team is opening up unprecedented opportunities for citizens to take part in shaping a new U.S. domestic, as well as foreign policy.  If we care about human rights, it is imperative that civil society act on this opportunity.  This 2009, join Americans for Informed Democracy and our partners in telling Barack Obama to uphold his commitment to global development by creating a cabinet level Department of Development, re-writing a development strategy that is founded in the achievement of the MDGs (the one we have now is from 1961!), and reform the rules of trade to reflect our nation’s respect for civil, political, economic, social, and cultural rights worldwide.

The recent Supreme Court decision Boumediene v. Bush held that detainees at Guantanamo have access to federal courts through the writ of habeas corpus.  Justice Kennedy’s opinion is quite interesting.  I believe it is an opinion that is very broad in some aspects, but narrow in others.

The Court’s plurality opinion found jurisdiction by looking to the common law rule that the writ of habeas is determined by sovereignty.  What is important is that the Court found that sovereignty is not determined by the general understanding of sovereignty as "power." Instead, it is determined by the legal definition of a "claim of right."  Therefore,  even though Cuba has de jure control over the territory of Guantanamo, the United States has de facto control through the lease agreement and the claim of right needed for sovereignty.  So, federal jurisdiction stretches to Guantanamo. (pg. 23-24).

One of the most important rulings of the Court was the determination as to how far (geographically) the Constitution stretches.  The Court found that the Constitution grants Congress and the President the power to aquire, dispose, and govern territory; not to decide where its terms apply.  The Court found this was particularly important in the context of the suspension clause (the power to suspend the writ of habeas).  Since the writ is designed to restrain the power of the Executive in restraining liberty then the determination of its scope should not be determined by that branch of government. (pg. 36).

Ultimately the Court developed a three part test for determining when the writ should apply: 1) the citizenship and status of the detainee and the adquacy of the process through which that status determination is made, 2) the nature of the sites where the apprehension and detention took place, 3) and the practical obstacles inherent in resolving the prisoner’s entitlement to the writ. (pg. 37).

The Court found that there was no precedent for their decision.  There was no precedent that held that noncitizens held by the United States in a territory under which it did not maintain de jure sovereignty had rights under the U.S. Constitution.  This opinion set the precedent and is why it could be broad in its scope. (pg. 41).

Another reason that this opinion is broad was that it took up the question of whether Congress provided an adequate subsitute for the writ of habeas in its legislation as a matter of first impression.  Since the lower courts found that the writ did not apply then it did not address whether there was an adequate substitute.  Normally, the Supreme Court would remand the case to the lower courts to address the issue as a matter of first impression.  Instead, the Court found that the length of the detainees detention without proper meaningful judicial review of their status constituted an "exceptional circumstance" that allowed the Court to address the issue as a matter of first impression. (pg. 43).  The Court found, "Under the circumstances we believe the costs of further delay substantially outweigh any benefits of remanding to the Court of Appeals to consider the issue it did not address in these cases."  I’m not a historian on the Supreme Court, but this is not something the Court does regularly or lightly. (In case you are wondering, the Court determined that Congress did not provide a proper alternative in its legislation).

The reason the opinion is somewhat narrow is that it stressed the peculiarity of the facts before it.  The "war on terror" is one of the longest wars in U.S. history, the detainees have been held for six years, the U.S. has de facto control over GITMO, and federal judicial review is not impractical or a severe burden on the military.  It is highly doubtful that given a different set of facts (i.e. detainees held in any other part of the world) that the Court would reach the same decision.  And the Court would most certainly not reach the same decision if the detention took place in an active theater of war.

It is important to note that the Court did not strike down the military boards.  The Court only found that Congress did not properly suspend the writ of habeas under the suspension clause and did not provide a proper alternative to habeas.  It did not find the military boards or, perhaps more importantly, the detention of these individuals illegal. 

Ultimately, this decision has given the detainees access to an adversarial hearing before a neutral decision maker.  What a novel idea for the United States!

I thought this article interestingly points to some very thought-provoking questions about continuing U.S. involvement in Iraq.

Prime Minister Nuri al-Malaki drew comparisons between the present turmoil between armed ethnic and religious militias in Iraq, the predictive future of that country, and those that led to Somalia’s current situation as an anarchic society without a nationally recognized central government. This, I think, strikes at the heart of confused and sometimes cross-pollinating justifications for the American occupation.

Case in point: the Bush administration has alternately called the invasion and subsequent occupation a search to eliminate weapons of mass destruction, a fight to prevent de facto control of Iraq by the terrorist network al-Qaeda, and an all-important theatre in the almost-evangelical pursuit of democracy (self-determination by gunpoint, I suppose). His would-be successor and ideological bedmate, the presumptive Republican presidential nominee Sen. John McCain (AZ-R), recently went further by painting the predictive consequences of a sudden withdrawal of U.S. forces in terms of "genocide" and "ethnic cleansing," undercutting the mission to spread to democracy but underscoring this continuing realist-turned-idealist approach to foreign policy.

Which leaves a preponderance of questions in the wake of an extremely confused objective in Iraq: Is a continuing military occupation for the United States a moral obligation or a matter of national self-interest? Would leaving Iraq, a country in conflict, simultaneously and recklessly abandon the Iraqi people to acts of genocide and ethnic cleansing by diverse factions?

It calls into light the contrast between foreign policy objectives behind President Clinton’s short-lived 1993 venture into Somalia and his administration’s subsequent decision to remain quiet about the Rwandan genocide in 1994.

Another predictive model finds use here: what U.S. Ambassador to Iraq Ryan Crocker has described as "Lebanonization," or the usurpation of one state’s sovereigny to another’s intervention. The term denotes Syria’s de facto control of internal Lebanese politics through military presence and sponsorship of various political parties, and has been used to describe a post-U.S. occupation role for countries like Syria and, more importantly, Iran, which continues to ship Iranian-made arms to Iraq and allegedly trains and funds Shi’ite militias.

I draw on this because it eerily reflects the conditions on which different factions in Somalia relied to initiate clan-based civil war and oust that country’s dictator, Mohamed Siad Barre, between 1986 and 1992. Militias and clans then existing received outside funding from Ethiopia, which enabled them to fight pro-Barre parties, internal factions, and subsequently amongst themselves for control of Somalia, ultimately paving the way for that country to become a failed state circa 2008.

Another potential consequence of U.S. withdrawal is hereby illustrated: Does leaving also mean opening an unstable Iraq to outside control and subjugation by local powers interested in arrogating sovereignty of that country to themselves?

By no means should we narrow opinions to a predictive outcome for Iraq. I think these questions should more carefully delineate our responsibility and subsequent concerns about long-term involvement in Iraq. Otherwise U.S. citizens and their elected leaders lend themselves to a stated hypocrisy, with sides on one hand clamoring for more attention and intervention in the ongoing genocide in Darfur, and others speaking truth to power about strategic failures in Iraq and the need to withdraw, even precipitously, in the name of U.S. national interest.

These things in mind — the threat of genocide, ethnic cleansing, and outside state control — is the Iraqi occupation an obligation to keep for Iraqis, preventing their state’s potential collapse and transformation into another Somalia, or an undertaking irresponsibly taken and just as easily ended?

I suppose we’ll see our foreign policy become clearer in 2009.

Pakistan seems to be on the minds of a lot of our bloggers here at AID.  Here’s my two cents to this issue:

On Sunday, as Pakistan’s General Musharraf declared a state of emergency in Pakistan, which will enable him to severely limit democratic freedoms in that country, the Bush Administration made it clear that this will have no effect on the billions of dollars we are pouring into Pakistan as our ally in the war on terror.

Exactly how many times does the United States need to get burned by propping up unpopular leaders who attempt to keep domestic power through dictatorship-like governance? Isn’t this similar to a Shah-run Iran over a generation ago or a Taliban-run Afghanistan two decades ago? We simply had to pour our money and support into those despotic regimes because if we didn’t the Soviet Union would have jumped on that weakness and communism and evil would have won in the end.

Sure…

Too bad back then we made problems worse for ourselves now, with a war in one of those countries, and harsh anti-US sentiment in the other. This is also a terrible move for an administration that built their foreign policy strategy on promoting democracy in the Middle East. “If your agenda is to save attacks in the U.S. and eliminate Al Qaeda, only the
Pakistani Army can do that,” said the close aide to General Musharraf. “For that, you will have to forget about elections in Pakistan for maybe two to three years.” (Source:  http://www.nytimes.com/2007/11/05/washington/05diplo.html?ex=1352005200&en=bf4c7e3f9b8bbbbc&ei=5124&partner=permalink&exprod=permalink )

The Bush Administration has made it clear that their efforts are not to spread democracy, but first to “squash out terrorism”.  However, as Ben Franklin noted during the birth of our nation, “They who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”

The US War on Terror, from the Eyes of an Alleged Terrorist’s Wife
The film USA vs. Al-Arian takes a look at the justice system’s treatment of one individual, from the perspective of his family

Director: Line Halvorsen Producer: Jan Dalchow (99 minutes) Norway/Palestine/USA

Film Description:
In February 2003, university professor and pro-Palestinian civil rights activist Sami Al-Arian was arrested in Tampa, Florida, charged with providing material support to a terror organization. For two and a half years he was held in solitary confinement, denied basic privileges and given limited access to his attorneys. The film follows Sami Al-Arian’s wife, Nahla, and their five children throughout his 6 month-long trial. This is a nightmare come to life, as a man is prosecuted for his beliefs rather than his actions. It presents democracy in a new light in a post-9/11 culture of fear, where “security measures” trump free speech and punishment is meted out in the name of protection.

Stanford University and the United Nations Association teamed up to bring to the California Bay Area the 10th annual United Nations Film Festival showcasing a variety of films over the course of just four days, October 24-28.

In the welcome letter, found in the UNAFF program, founder and executive director Jasmina Bojic states: “The world around us is a painful reminder of how vulnerable and interconnected we are” and that “the first step towards any solution is the willingness to learn.” In line with the goal of Americans for Informed Democracy, the film festival looked at a variety of different issues, allowing viewers to learn more with each film. With the theme “Camera as Witness,” the festival featured a total of 32 films from countries all over the world, ranging from Bolivia, China and Croatia to Kenya, Iraq and Vietnam, and everywhere in between.

The film opened with a simple statistic “6472 people have been arrested since 9/11 as suspected terrorists” Sami Al-arian is one of these individuals.

“We’re on the hunt” Bush says in a clip from the film, “It’s a matter of time before they know the meaning of American justice.” On February 20, 2003 special investigators spent 12 hours searching the Al-arian house. Bush believes that we “still face dangerous enemies,” although a man from the crowd shouted “you” – at Bush’s on-screen image.

The film contrasted everyday life from home video of the Al-arian family with the contrast of a family in which a trial runs their lives and life revolves around Sami Al-arian’s 45 minute phone-call each day.

Without giving away the suspense in the movie, as of yet, there has been no happy ending of American justice served. Unless the “American justice” Bush speaks of is a different justice all-together.

Director Line Halvorsen, from Norway attended the screening at Stanford University, and spoke shortly thereafter. Al-arian is currently in prison in Virginia, according to Halvorsen, he went on a 60 day hunger strike to protest his treatment.

“It is difficult to talk about what is really going on,” Halvorsen said. Nahla’s (Sami Al-arian’s wife) version of the story was very different from the story told in the media, Halvorsen added.

As far as screening goes, PBS has refused the documentary, despite the fact that it has been sold to eight countries in Europe and the Middle-East and screened at festivals around the world. “Countries are afraid to show it because they don’t want to provoke the American government,” Halvorsen said.

Halvorsen followed the Al-arian family for roughly 15 months and eventually finished the film in about two years with funding from foundations. With the film, Halvosen says she has many hopes for it, including creating awareness. “When I started, it wasn’t meant to be a ‘free Sami Al-arian film’ but as I became more involved, there is a lot more to the case…” Halvorsen would like the film to show the faces behind the headlines and to individualize the War on Terror.

The film has done just that, my only hope is that more people see it and that it incites them to act in defense of civil liberties and the principles this country was created upon, namely, in defense of free speech.

For more information, please visit:
unaff.org
usavsalarian.com
freesamialarian.com

This video of Rohrbacher questioning  Canadian Maher Arar, an innocent victim of US rendition, is stomach-churning. This is how far we’ve fallen:

Rohrbacher, ghoul that he is, at least admits that the US is still torturing and that he supports that. President Bush and Attorney General nominee Michael Mukasey refuse to openly admit the same. Neil Macdonald is on the mark with this analysis.

When is Torture not Torture? When The President Says It Isn’t.

by Neil Macdonald

The torture called waterboarding is a pretty violent business.The torturer straps down the victim, feet elevated above the head, then covers the subject’s face – often with cloth or cellophane – and pours water onto it. This triggers the gag reflex, persuading the mind that the body is drowning, provoking an atavistic terror. The straining and flailing against the restraint straps can sometimes break bones. If the torture is protracted, lung and brain damage can occur.

Now.

This would be the Bush administration’s description of the same procedure: The detainee, an illegal combatant who may have intelligence valuable to the Worldwide Struggle Against Extremism, is restrained, and subjected to a robust interrogation. An enhanced interrogation technique is used, which for national security reasons must remain classified. But the detainee is not tortured, because the United States does not torture people.

That’s not a caricature. It is a composite of actual administration jargon. And the last bit of circular logic has become the fulcrum of Washington’s policies on treatment of foreign prisoners: The U.S. does not practise torture. Therefore its interrogation techniques cannot be torture, because if they were, then certain prisoners in the United States’ secret prisons would have been tortured, and that cannot have been, because the U.S. does not practise torture.

By that logic, the following are not torture, either: dousing a prisoner with water and shackling him naked to the floor for extended periods in frigid temperatures; striking him on the head during questioning; manacling him in “stress” positions for prolonged periods; and inflicting sexual humiliation.

And, necessarily, the prisoners who have turned up dead in American custody after being beaten senseless, smothered in a sleeping bag or shackled to the ceiling, shrieking, as jailers using the technique of “peroneal strikes” smashed their legs into useless mush could not have been tortured.

The "peroneal strikes" murder case Macdonald is referring to I wrote about here.

“This government does not torture,” President George W. Bush has declared time and again.

He will not get into the game, as he puts it, of entertaining detailed discussion.

“A simple question,” said one White House reporter during a Bush news conference last week.

“Yes?” said Bush.

“What’s your definition of the word ‘torture’?”

“Oh,” said Bush. “That’s defined in U.S. law, and we don’t torture.”

Asked for his personal definition, Bush replied: “Whatever the law says.”
Legal loophole

And indeed, American law does now forbid the “cruel, inhuman and degrading” treatment of prisoners, defining it in minute detail: infliction of severe mental or physical pain or suffering, or even threats of death.

Bush and his advisers opposed passage of that law a few years ago, presumably wishing to reserve the right to inflict all those things in the United States’ secret overseas prisons.

Having lost that fight, though, they devised a neat device to circumvent the new law: The president simply signed secret executive orders declaring that none of the CIA’s or the Pentagon’s “enhanced techniques” fall within the law’s definitions.

Members of Congress, who thought they were banning torture when they passed the law, were unhappy to hear about the secret orders, and said so.

“After telling us and the world that torture is abhorrent,” said Senator Patrick Leahy, chair of the Senate judiciary committee and a Democrat, “it appears that … they reversed themselves and reinstated a secret regime by, in essence, reinterpreting the law in secret.”

During the nomination hearings last week of Michael Mukasey, Bush’s new choice for attorney general, Senator Sheldon Whitehouse, a Democrat, asked this simple question: Is waterboarding constitutional?

“If waterboarding is torture, torture is not constitutional,” replied Mukasey.

“I mean, either it is, or it isn’t,” replied Whitehouse.

“If it amounts to torture,” said the former judge, “it is not constitutional.”

Note the “if.” It’s not a word most experts would use in discussing waterboarding.
Euphemisms border on Orwellian

“Absolutely, waterboarding is torture,” said Prof. David Luban of Georgetown University’s law school, who has written extensively about torture.

“My test for waterboarding,” said Luban, “is to tell someone ‘Blow all the air out of your lungs and see what it’s like not to be allowed to breathe in for two minutes.’”

Luban regards terms like “enhanced interrogation techniques” or “robust interrogations” as euphemisms bordering on Orwellian, or worse: “The Gestapo used the phase ’sharpened interrogation techniques.’”

The Bush position, said Luban, is essentially that government employees do not use cruel, inhuman or degrading techniques, unless they do. Luban said the “dagger in his heart” is that the justification comes from lawyers employed to find ways around the law. In the end, he said, “any proposition is arguable.”
Successful political strategy

What’s more remarkable, though, is that as a political strategy, it works.

By simply asserting that its techniques are not torture, the administration creates a debate where none existed before. As Luban put it, what were once questions of common sense are transformed into legal issues.

Newspaper editors and television news producers are naturally reluctant to flatly contradict the president, so the soldiers and CIA agents and private contractors who carry out the interrogations are not referred to as torturers, as they would be if they worked for, say, the governments of Russia or Egypt.

I actually hesitated in writing the first sentence of this column without a qualifier, knowing it would give my editor pause.

After Mukasey’s exchange with the Senate panel last week, Human Rights Watch called his statements “preposterous,” but the response was tinged with disbelief that such criticism even needs to be uttered.

The group pointed out that U.S. military courts have in the past prosecuted soldiers of other countries for using waterboarding on American troops, and that the U.S. government often criticizes other countries for the practice.

And, in fact, this was in the first paragraph of a presidential declaration on the UN’s day of observance for victims of torture in 2004: “The United States reaffirms its commitment to the worldwide elimination of torture. The non-negotiable demands of human dignity must be protected without reference to race, gender, creed or nationality.”

Somewhere in the last three years, that became: “Whatever the law says.”

***

Yesterday, President Bush had this to say about "enhanced interrogation" in what was a thoroughly disgusting, fearmongering speech:

In this new war, the enemy conspires in secret — and often the only source of information on what the terrorists are planning is the terrorists themselves. So we established a program at the Central Intelligence Agency to question key terrorist leaders and operatives captured in the war on terror. This program has produced critical intelligence that has helped us stop a number of attacks — including a plot to strike the U.S. Marine camp in Djibouti, a planned attack on the U.S. consulate in Karachi, a plot to hijack a passenger plane and fly it into Library Tower in Los Angeles, California, or a plot to fly passenger planes into Heathrow Airport and buildings into downtown London.

Despite the record of success, and despite the fact that our professionals use lawful techniques, the CIA program has come under renewed criticism in recent weeks. Those who oppose this vital tool in the war on terror need to answer a simple question: Which of the attacks I have just described would they prefer we had not stopped? Without this program, our intelligence community believes that al Qaeda and its allies would have succeeded in launching another attack against the American homeland. This CIA program has saved lives — it is vital to the security of the American people.

Ah, pulling the "torture opponents would have the US attacked again" card. Nice. Portraying your critics as traitorous underminers of their fellow citizens’ security –how very authoritarian. And unsurprising.

Suggested reading on the subjects of torture, the War on Terror, and international law:

Q and A: The Military Commissions Act of 2006 (Human Rights Watch)

Call Cruelty What It Is (Human Rights Watch)

Criminal, Immunize Thyself (Human Rights Watch)

Amnesty International (USA) Denounce Torture Blog

Cruel, Inhuman, Degrades Us All: Amnesty’s Torture Page

Investigate. Indict. Prosecute.

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