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The White House plan to make torture legal

By Nicole Colson | September 22, 2006 | Page 2

"SO WHAT? Why is that not within the law?" That was George Bush's annoyed response after being asked about his authorization of secret CIA prisons around the globe for detainees of the "war on terror."

Bush knows that his early insistence on the right to indefinitely detain prisoners and to use interrogation "tactics" like waterboarding (mock drowning) and extreme psychological abuse violates both United Nations regulations and portions of the Geneva Conventions, not to mention the U.S. War Crimes Act of 1996.

If he needed any more proof that his administration's actions were "not within the law," the Supreme Court ruled this summer in Hamdan v. Rumsfeld that detainees at the U.S. prison camp in Guantánamo Bay, Cuba, are entitled to protections against torture and mistreatment under the Geneva Conventions, and to fair trials.

So the Bush White House has a plan to go around the law--get it rewritten to call "torture" by another name. The administration is transferring a group of 14 alleged al-Qaeda detainees who had been housed in secret CIA prisons to Guantánamo to put pressure on Congress to pass legislation to not only relax war crimes legislation, but also approve military tribunals that would strip detainees of many of their legal rights under the Geneva Conventions.

Under the existing War Crimes Act, a "war crime" is defined as any "grave breach" of the Geneva Conventions--including Common Article Three, which prohibits "outrages upon personal dignity" and "humiliating and degrading treatment."

The Bush administration's legislation would remove that prohibition from the act, replacing it instead with a list of 10 specific categories of offenses that include things like murder, rape and hostage-taking. Practices like mock drowning, psychological abuse or deliberate humiliations such as forced nakedness or the use of dog leashes would not be considered violations under the new legislation.

As Scott Horton, former chair of the Committee on International Human Rights for the City Bar Association in New York, recently told Democracy Now, the proposed legislation is "designed to provide an okay to certain techniques which fall just short of torture that are being used by the CIA... techniques like waterboarding, longtime standing and hypothermia, techniques which have been linked to severe injuries and fatalities already in the course of the war on terror."

Moreover, since the legislation would be retroactive to 2001, it would mean that no CIA interrogator, service member or Bush administration official would ever have to face prosecution under the War Crimes Act for either employing or authorizing such "techniques." "I think what this bill can do is in effect immunize past crimes," attorney Eugene Fidell, president of the National Institute of Military Justice, told the Associated Press. "That's why it's so dangerous."

As for the system of military tribunals that the Bush administration is proposing, they would do nothing to provide detainees with a fair trial as mandated by international law.

Not only would the U.S. government be allowed to introduce both hearsay and secret "classified" evidence against detainees, but the tribunals also would allow evidence obtained from "coercive interrogations" (where tactics like waterboarding had been used). Additionally, detainees would not necessarily have the right to be present during the proceedings against them, and any appeals would first go to a specially created court of civilian and military members chosen by the Secretary of Defense.

Democrats have largely avoided commenting on this issue in order to avoid being labeled "weak on terror." "I don't want to give any terrorist a free pass or get-out-of-jail-free card," Rep. Ike Skelton of Missouri, the top Democrat on the House Armed Services Committee, commented to the New York Times.

But Bush is facing opposition from within his own party. Last week, the Senate Armed Services Committee, in a push by Sens. John McCain (R-Ariz.), Lindsey Graham R-S.C.) and John Warner (R-Va.), approved legislation that is less drastic than the Bush administration's proposals.

However, though Bush administration officials are smearing these Republicans. make no mistake: Their legislation will also open the door to legalizing abuse of detainees.

As Jeremy Brecher and Brendan Smith commented in the Nation magazine, "The Warner bill would also amend the War Crimes Act to provide effective legal cover for many of the CIA's 'alternative' techniques--including use of hypothermia, sleep deprivation and threats of violence against detainees and their families. In short, while some kind of trial for some alleged enemy combatants may well be appropriate, the Warner/McCain/Graham bill should not be seen as an acceptable alternative to the Bush bill. Basic human rights should not be abridged on the back of an envelope without hearings or debate."

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