ChezLark

I know many people who read this blog think the political posts are kind of tedious, and this one is kind of long, but seriously: please read this and think for a minute about what the current administration is doing in your name.

Remember the McCain amendment prohibiting cruel, inhuman, or degrading treatment of detainees? Remember how the White House first opposed the amendment outright, then Veep Cheney lobbied hard for the CIA to be explicitly exempted? Remember how the White House finally caved in when it became clear that Congressional and public opinion were solidly against them? Well, a nice strong version of the amendment was attached to the final bill that got presented to the President to sign into law. The amendment prohibits “cruel, inhuman, or degrading treatment or punishment” of any “individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location”, without any “geographical limitation” on applicability, and even has a clause limiting its potential supersedure. The amendment clarifies that “cruel”, “inhuman” and “degrading” mean, inter alia, treatment prohibited by the UN Convention against Torture, which the US signed.

So, McCain and Congress won, right? Now the Executive has to stop torturing detainees, if indeed it was doing so before, right? Truth and Justice, in at least some small measure, have been restored.

Right?

Well, no. Not exactly.

In fact, not really so much, at all.

The President is head of the Executive branch, and the Executive branch gets to enforce the laws. This means that the Executive has to be clear on what the laws mean. When the President signs a bill into law, he can issue a Statement that directs the Executive branch to construe the new law in a particular way. When Bush signed H.R. 2863, which included the torture amendement, he issued such a Statement. Among other things, the Statement included this language (note that the torture amendment is Title X):

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks. Further, in light of the principles enunciated by the Supreme Court of the United States in 2001 in Alexander v. Sandoval, and noting that the text and structure of Title X do not create a private right of action to enforce Title X, the executive branch shall construe Title X not to create a private right of action.

Let me translate this for you.

• “I still get to torture people if I feel like it, because as far as I’m concerned, I have that power as Commander-in-Chief”
• “The folks whose job it is to prosecute criminals [which is what CIA operatives engaging in torture would be under this law] have to interpret the laws the way I say. And I say, there is no crime in torturing military prisoners.”
• “The other way in which people wronged by the government can try to seek redress is to sue the government. I say, they don’t get to do that, either.”
• “How do you like that, McCain?”

The other way in which people can challenge government misconduct, of course, is to file a writ of habeas corpus, which asks the courts to compel the government to explain its legal justification for detaining someone. But this avenue isn’t available to people held by our military outside the US and its posessions.

Since the President has the power to prevent the usual prosecutorial machinery from treating certain people as criminals, the only remaining glimmer of hope for someone mistreated by the US government outside the US is to sue. The President’s Statement claims that the new anti-torture law does not create the right for someone to sue the government for violation of that law. That might be true, but he doesn’t get to make that decision unilaterally. So it may still be possible to sue.

But, step back from the legal details for just a minute. At every step, the administration has fought tooth and nail to ensure that no restrictions or accountability get put in place regarding mistreatment of prisoners. Credible reporting now reveals that the White House has authorized and directed the CIA to kidnap suspects off the streets of foreign countries, strip, bind, and drug them, fly them across international borders, hold them in secret locations, torture, abuse and sometimes kill them. It’s reported that the CIA’s “rendition” procedures include the recommendation that if a suspect dies in custody, that his body be burned promptly, presumably to eliminate any trace of the abduction. This is all done exclusively on the say-so of the Executive. If the military and/or intelligence agencies make the “determination” that some random person might be a terrorist, they are subject to all these measures. They may disappear one day from their home and never be heard from again. There is no trial. There is no possible defense. There is no means of protest, review or escape.

All this is done in your name. The government of the United States is supposedly by and for the people. Its actions are taken in the name of the citizens of this country. Is this what you want? Is this what you believe in?