Bush's Tortured Logic: Marjorie Cohn Speaks Out on the State of Civil Liberties

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from Political Affairs Magazine:


Bush's Tortured Logic: Marjorie Cohn Speaks Out on the State of Civil Liberties
By Political Affairs


Editor's Note: Marjorie Cohn is a human rights lawyer and president-elect of the National Lawyers Guild. Her book, Cowboy Republic: Six Ways the Bush Gang has Defied the Law, will be available this June.

PA: Civil rights and liberties have been seriously undermined over the last five years. While some people see the Patriot Act and warrantless wiretapping as the worst abuses, others say immigration policy has caused the most violations of civil and human rights. What is your take?

MC: I don't see a dichotomy between the two. I think it's all part of a concerted effort to push the Bush/neocon/evangelical agenda and crush dissent. If you look at history, in times of war and national crisis, the government has traditionally targeted both immigrants and dissidents. If you look at the Alien and Sedition Acts in the late 1700's and early 1800's, the Alien Enemies Act, the internment of Japanese and Japanese Americans during World War II, and of course, during the McCarthy period, the red-baiting and overreaction to the perceived threat of Communism you see two sides of the same coin. Right after 9/11 we saw a round up of people of Arab and Muslim descent, more than 1,200 people locked up with no charges. Many of them were abused and even tortured. Racial profiling and anti-immigrant bashing whipped up the frenzy in Congress for keeping immigrants out. At the same time there was a contradiction because Bush's friends in the corporations want immigrants for cheap labor. The Patriot Act, actually creates this crime of domestic terrorism that's defined so broadly anyone who may at one time have participated in civil disobedience or even a labor picket could be targeted. The provision has been used to label environmental and animal rights activists as terrorists, and to preemptively use the Internet to infiltrate demonstration plans before they happen. A related issue is the use of high-power microwave devices that Secretary of the Air Force Michael Wine is advocating to try on citizens in crowd control situations to see if they work before use on the battlefield.

PA: Can you outline current US torture law with the passage of recent legislation?

MC: There has been no change in the United States' legal obligation to refrain from torturing prisoners. The United States has ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Likewise, the United States has ratified the International Covenant on Civil and Political Rights. A treaty the United States ratifies becomes part of US domestic law under the supremacy clause of the Constitution. It's not just international law as the Bush administration would have us believe, but actually part of US law. Both of those treaties absolutely forbid torture at any time, and in fact cruel, inhuman, and degrading treatment and punishment as well.

Those two prohibitions have always been there. After a report that reached Senator John McCain's desk about egregious torture by some US troops in Iraq, he proposed an amendment to a military appropriations bill, the so-called McCain anti-torture amendment. What that amendment did was to re-affirm existing US law, which is that prisoners in US custody should not be subjected to cruel, inhuman or degrading treatment or punishment. While that amendment was being considered, Bush spoke strongly against it. In fact, he sent Cheney over to talk to McCain to try to get an exception for the CIA. McCain said no. Bush did not veto that bill. But then he did what he's done about 800 times, and that was to attach what is called a signing statement saying, "I'm going to make sure this bill gets enforced only to the extent that I, as the commander-in-chief, think it is necessary." Basically, he reserved the right to disobey it.

In the so-called torture memos that people in the Department of Defense and the Department of Justice wrote in 2002, under the auspices of now Attorney General Alberto Gonzales, they advised Bush on how to get around possible prosecution of high governmental officials under the US War Crimes Act. The US War Crimes Act was passed by a Republican Congress in 1996. It provides that violations of the Geneva Conventions Common Article III are war crimes, and those convicted can face life in prison or even the death penalty if the victim dies. What the Bush administration decided was that Common Article III does not apply to Al Qaeda. What that means is only people who qualify as prisoners of war under the Third Geneva Convention are entitled to humane treatment. But, in fact, there is no gap in the Geneva Conventions. Common Article III prohibits, among other things, outrages on personal dignity and humiliating and degrading treatment. Our War Crimes Act, which is a US statute, says that violations of Common Article III are war crimes, and people can be prosecuted for war crimes.

What Bush did was to push Congress to pass the Military Commissions Act of 2006, which redefined what constituted war crimes under the War Crimes Act and omitted outrages upon personal dignity and humiliating and degrading treatment. It also made immunity from prosecution under the War Crimes Act retroactive to 1997. This means that to anyone in his administration who is liable for war crimes, and engaged in torture or in cruel, inhuman, or degrading treatment or punishment during the Afghanistan war, the Iraq war, or at Guantánamo, and secret CIA "black sites" would be immune.

What the Military Commissions Act of 2006 also does is to strip away habeas corpus rights from all non-citizens, and that includes people who are lawful permanent residents. If a person was tortured or treated inhumanely, there would be no way to come to court and say that the Geneva Conventions were violated. The other thing the Military Commissions Act does is to define who is an unlawful enemy combatant and to allow Bush to define that. It would include citizens who speak out or write or give money to a charity they may not realize is connected with a group on Bush's list of terrorist organizations. The media talked mostly about habeas corpus-stripping provisions, which are unconstitutional. The Constitution allows Congress to suspend habeas corpus only in times of rebellion or invasion. Habeas corpus is a very important tool that someone who is being incarcerated or confined can use to go to court and have a judge determine whether he or she is being mistakenly held. What it means to lose habeas corpus is that thousands of prisoners in US custody around the world can be detained for the rest of their lives and will never be able to go to court. ....(more)

The rest of the interview is at: http://www.politicalaffairs.net/article/view/4740/1/237/