Friday 04 November 2005

    Wednesday's article by the Washington Post's Dana Priest regarding CIA-run secret prisons abroad and the intense maneuvering this week in Congress over whether to legislate another ban on torture have again brought the issue of torture front and center. The next several days will show whether Congress has slipped its moral mooring.

    Seldom have moral lines been so clearly drawn as they are on the issue of torture - the morality of which, until recently, was not controversial. I thought we knew, as a country, where we stood on torture.

    The immediate issue is whether American armed forces and intelligence personnel should be permitted or forbidden to torture detainees. Very shortly, lawmakers on Capitol Hill will have to decide whether to approve a blanket ban on torture that applies to all US personnel, to limit the ban to the Defense Department (thus exempting the CIA), or to duck the issue entirely by dropping an amendment offered by Senator John McCain to the defense appropriations bill that would ban "cruel, inhuman, or degrading treatment or punishment of persons under the custody or control of the United States government."

    That amendment passed the Senate on October 5 by a 90-9 vote. But immediately Vice President Dick Cheney, with CIA Director Porter Goss in tow, descended on McCain pleading for an exemption for the CIA. The proposed exemptions stated that the measure:

Shall not apply to clandestine counterterrorism operations conducted abroad, with respect to terrorists who are not citizens of the United States, that are carried out by an element of the United States government other than the Department of Defense ... if the president determines that such operations are vital to the protection of the United States or its citizens from terrorist attack.

    You Mean Cheney/Bush Seek Authority to Torture?

    It's not that they seek such authority. They believe they already have it - and do not want Congress messing with what they see as the president's authority as commander in chief. The context for the White House position is key. The words are stuck in a quagmire of gobbledygook, but what the administration has already authorized is clear.

    After the publication in spring 2004 of the photos of detainee abuse at Abu Ghraib, the administration released a raft of documents with a rhetorical flourish claiming the documents showed that there was no policy allowing the abuse of prisoners. The whole thing was rather surreal; the documents showed just the opposite. It was as though the White House thought we couldn't read.

    Most striking was a memorandum of February 7, 2002, signed by President George W. Bush, on the treatment of al-Qaeda and Taliban detainees. That memorandum records the president's unilateral determination that the Geneva Convention on prisoners of war "does not apply to either al-Qaeda or Taliban detainees." The determination was of dubious validity because there is no provision in the Geneva Conventions that would countenance a unilateral decision to exempt prisoners from Geneva protections.

As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva. (Emphasis added.)

    How Did We Stoop So Low?

    President Bush and Vice President Cheney set the tone. According to counterterrorism chief Richard Clarke, it began on the evening of 9/11. Immediately after the president's 8:30 p.m. TV address to the nation, he met with Defense Secretary Donald Rumsfeld and Clarke in a bunker under the East Wing of the White House. In his book, Against All Enemies, Clarke describes the president as "confident, determined, and forceful:"

I want you all to understand that we are at war ... any barriers in your way, they're gone. Any money you need, you have it ... I don't care what the international lawyers say, we are going to kick some ass.

    The vice president tipped his hand to Tim Russert during an interview on NBC's Meet the Press on September 16, 2001. The conversation centered on the US response to 9/11. After discussing military capabilities, Cheney shifted focus:

We also have to work, though, sort of the dark side ... A lot of what needs to be done will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies ... it's going to be vital for us to use any means at our disposal ...

    Alluding to restrictions on US intelligence gathering, Russert asked, "Will we lift some of those restrictions?"

Oh, I think so ... It is a mean, nasty, dangerous dirty business out there ... we need to make certain that we have not tied the hands of our intelligence communities in terms of accomplishing their mission.

    ... and Interrogations?

    At a joint hearing of the House and Senate intelligence committees on September 26, 2002, Cofer Black, then the head of the Counterterrorism Center at CIA, emphasized the need for "operational flexibility," adding that intelligence operatives cannot be held to the "old" standards. Addressing interrogation, Black said:

This is a highly classified area, but I have to say that all you need to know: there was a before-9/11 and an after-9/11. After 9/11 the gloves came off.

    There is fresh evidence that within days of 9/11, Bush and Cheney told then-CIA director George Tenet to set CIA interrogators free from the customary restrictions. In her November 2 article on the mini-gulag system of secret CIA-operated prisons overseas, Dana Priest reported that on September 17 - that is, the day after Cheney's comment on NBC about working "the dark-side" - Bush signed a secret "finding" giving the CIA broad authorization to disrupt terrorist activity, including permission to kill, capture, and detain al-Qaeda members anywhere in the world.

    Authorization for "rendering" detainees to other countries for interrogation, as well as the establishment of secret prisons abroad, were probably subsumed under that broad presidential finding. Still, one can assume that Tenet and, indeed, the president himself would seek reassurance that they would be legally protected from prosecution in the future. And this would account for the flurry of lawyerly activity in early 2002.

    Why were then-White House counsel Alberto Gonzales and David Addington, then counsel to Vice President Cheney (and recently appointed to replace I. Lewis Libby as chief of staff) and their counterpart attorneys at Justice and Defense at such pains to square the circle to make torture "legal?" Addington reportedly took the lead in drafting the famous memorandum sent by Gonzales to the president on January 25, 2002, which described as "quaint" and "obsolete" some of the Geneva provisions, and reassured the president that there was "a reasonable basis in law" that, if he exempted Taliban and al-Qaeda detainees from Geneva protections, he could still avoid possible future prosecution for war crimes. And so, Bush signed the February 7 memorandum, and Tenet's hired thugs could feel more at ease employing so-called "Enhanced Interrogation Techniques" - including "water-boarding," during which a detainee is repeatedly brought to the point of drowning.

    In her report, Dana Priest made it clear that only the chair and ranking members of the House and Senate intelligence committees were briefed on the secret prisons, and this is probably what happened with respect to other quasi-legal activities as well. But there is a problem. Members of Congress, however much they may enjoy being privy to real secrets and as prone as many are to give intelligence activities a wink and a nod, cannot make illegal activities legal. And that's the rub.

    Enter the Straight Man

    When John McCain, who knows torture up-close and personal, decided to force the issue by offering an amendment to the $453 billion defense appropriation bill, he and the 89 other Senators who voted for the amendment threw down the gauntlet. That bill includes about $50 billion for operations in Iraq. The issue is now joined.

    If you have read down this far, it will come as no surprise that Cheney is leading the fight against the amendment. It is an unseemly spectacle. Here we have a novice on things military - with multiple draft deferments to escape the war in Vietnam - importuning McCain, a highly decorated officer and torture victim, to allow torture to continue in Iraq and elsewhere. No matter. Cheney had already descended on McCain and other Senators last July and tried to twist their arms to put the amendment aside. They rebuffed him, and did so again last week when he and CIA chief Porter Goss made a quixotic attempt to amend the McCain amendment.

    This was too much for a handful of CIA professionals. When they protested, they were reminded by Goss's staff that he is "on record" forbidding the use of torture by CIA officers. More gobbledygook. This disingenuous reply came even as the Goss/Cheney duo lobbied the Hill to modify the McCain amendment so there would be no legal problems for CIA personnel engaging in torture - or for the CIA director who condoned it.

    Lawmakers have been meeting this week to seek ways to reconcile the two versions of the defense bill. The fate of the McCain amendment, which is only in the Senate version, hangs in the balance. Recent maneuvering among House Republicans suggests a newfound squeamishness regarding torture. On the McCain amendment they appear reluctant to march in lockstep with the Cheney/Bush administration and bear the opprobrium of, in effect, voting for torture.

    Following the example of Senate majority leader Bill Frist, who pulled the defense authorization bill off the floor last July rather than force Senators to choose between McCain and torture, Speaker of the House Dennis Hastert has bought time by delaying a vote. He has been warned by many of his Republican colleagues that they will side with McCain. So Hastert needs time to try to find some way to avoid black eyes for Cheney and the president - blacker still, if the administration follows through on its threat to veto any bill that includes a blanket ban on torture. Hastert may, in fact, find some face-saving solution. Three of the nine Republican Senators who voted against the McCain amendment reportedly are on the Senate/House conference committee. What emerges will be a moral barometer. It will be interesting to see if the barometer keeps falling.

    Shepherds Awake!

    ... and speaking of moral barometers: one hopeful sign came Wednesday with word that the president's own United Methodist Church's Board of Church and Society, in an almost unanimous vote, issued a strong statement against torture, urging Congress to create an independent, bipartisan commission to investigate detention and interrogation practices at Guantanamo, Iraq, and Afghanistan. There are reports that Methodist bishops may issue a similarly strong statement next week.

    Until now, the lukewarm mainstream churches have not been able to find their voice - a throwback to the unconscionably passive stance adopted by the Catholic and Lutheran churches co-opted by Hitler in the 1930s. Let us hope that other churches, synagogues, and mosques start tuning in to what is going on and bite the bullet, like the Methodists.

    Otherwise, our government's view will prevail. As described by one former CIA lawyer, that view is:

The law of the jungle; and right now we happen to be the strongest animal.

    On Tuesday, Defense Secretary Rumsfeld turned down a request by UN human rights investigators to meet with detainees at Guantanamo, where at least 24 hunger strikers are being force-fed. Rumsfeld said the US would grant such access only to the International Committee of the Red Cross (ICRC). Last year the ICRC accused the US military of using tactics "tantamount to torture" at Guantanamo.

    Ray McGovern, a former CIA analyst, is co-founder of Veteran Intelligence Professionals for Sanity (VIPS). He now works for Tell the Word, the publishing arm of the ecumenical Church of the Saviour in Washington, DC.