POLICIES THAT CIRCUMVENT OUR CONSTITUTION CONVEY A FUNDAMENTAL LACK OF FAITH IN THE DEMOCRATIC PROCESS
18 September 2006
Until 12 days ago, the Bush administration maintained that there were no secret CIA-run "black-sites", extralegal prison camps where accused terror suspects were held incommunicado and beyond any judicial process. On 6 September, Pres. Bush admitted to constructing and managing the prison system through the CIA, and now his government is demanding that Congress sanction a system which circumvents Constitutional law and permits "alternative" methods of coercive interrogation, presently banned under international law.
If the US Senate is persuaded to permit this re-interpretation of Article 3 of the Geneva Conventions, to permit the administration to impose methods tantamount to torture in order to obtain confessions and evidence from terror suspects, not only will US military personnel face a vastly more grave danger of such treatment themselves, but a fundamental element of American democracy will be eroded: that principle by which the rule of law and due process, not executive fiat, governs the treatment of prisoners of war and determines their guilt or innocence.
It cannot be overstated that a departure from the legal principle that only through open and fair judicial proceedings —where no prosecutorial abuse has been imposed on the accused or on the process for adjudication— can we faithfully know the final truth of an alleged criminal act, is to in fact oppose, in principle, in law and in practice, the democratic ideals on which the United States Constitution is founded. Not only would such a re-interpretation be a betrayal of our military personnel and the sacrifice they make to the security of the nation, and to the other signatories to the Conventions, but it would be an official act abandoning the allegiance elected officials swear to the Constitution itself.
Article VI of the US Constitution assures that "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby". As such, this "re-interpretation" that the White House now seeks would in fact require a Constitutional amendment on two counts: 1) the right to redesign the language of already agreed and binding treaties, and 2) the right of the State to disavow due process, use secret evidence and physical abuse against the accused.
Since neither of these two amendments is being proposed, and since it is virtually inconceivable that any Congress would stand for such a vast expansion of Executive power, permitting secret detention, secret evidence or torture, in the case of terror detainees, would be directly contrary to the US system of Constitutional government. It would signify an official suspicion on the part of two branches of government of the very system they have been elected and sworn to serve.
There is no middle ground on this issue: torture, disappearance and summary judgement are incompatible with a free and democratic society. One or the other must be eschewed and with confidence. Either we embrace a democratic system, which has served as well and proved an incomparable mechanism for spreading freedom and influence, or we embrace a creeping totalitarianism, which is rooted in a fundamental distaste for that democratic system which until now, we have, as a people, so prized.
On 15 September, the Washington Post reported, in an editorial that "Mr. Bush made the unaccustomed trip yesterday to seek legislative permission for the CIA to make people disappear into secret prisons and have information extracted from them by means he dare not describe publicly", citing the unusual visit as "a measure of his painfully skewed priorities".
The piece includes the assertion that the administration "wants permission to interrogate those detainees with abusive practices that in the past have included induced hypothermia and 'waterboarding,' or simulated drowning. And it wants the right to try such detainees, and perhaps sentence them to death, on the basis of evidence that the defendants cannot see and that may have been extracted during those abusive interrogation sessions", adding that it seeks the right to hold the detainees in secret facilities where no independent authority will be permitted to evaluate the conditions in which they are being held.
The pressure campaign, to persuade Congress that such tactics should be made standard elements of US defense policy, is not limited to Mr. Bush's legislative proposal or his personal visit to Capitol Hill. It appears that Vice President Cheney's office has contacted senior judge advocates general (JAGs or military law professionals), demanding that they sign a statement supporting the White House's effort to legalize secret evidence and coercive interrogations.
Because it is legally not permitted for active military professionals to campaign against civilian policy directives, their anger and disapproval has been expressed through a refusal to sign the statement and through advisory contact with members of the Congress and retired military officers, like former Chairman of the Joint Chiefs of Staff, retired Gen. Colin Powell.
Sen. John McCain (R-AZ), former prisoner of war in North Vietnam, where he was subjected to torture, said on Friday that any effort to ease restrictions against inhumane treatment of prisoners of war "threatens US troops in this and future wars". There is, quite simply, no way to be both faithful to the rule of law —as embodied by this fundamental treaty for the prevention of human rights abuses— and to espouse a policy that facilitates or values the physical or psychological abuse of detainees, for any purpose.
Sen. Lindsey Graham (R-SC), a military lawyer for 22 years, who joined McCain in opposing legislation to legitimize detainee abuse, last December, has said redefining the Geneva Conventions in the way the White House now proposes, would fundamentally weaken US credibility, undermine the rule of law and make it impossible to win the war against global terrorism.
Sen. John Warner (R-VA), former Secretary of the Navy, and now head of the crucial Armed Services Committee, whose approval is needed to bring Pres. Bush's proposed legislation to a vote, has said the measure would fundamentally undermine American credibility and would risk the very serious crisis of a second approach to detainee treatment being struck down as unconstitutional. He has called for legislation that would abide by and reinforce the constitutional system.
11 Democrats on the Armed Services Committee joined the 3 lead Republicans blocking Bush's legislation, calling for a bill that would provide the necessary security against future attacks, but would not undermine the integrity of the American judicial system or the credibility of the US as a proponent of democratic values and the rule of law internationally. And now, other prominent Republicans have said they would back a bid by McCain, Graham and Warner to craft legislation that upholds the standing interpretation of the Geneva Conventions and not undermine the US system of constitutional government.
Ultimately, the nature of the choice is simple: either the government surrenders to the temptation to counter brutality with brutality and abandon the principles of democracy (destroy the village in order to save it) or it proudly stands by the oaths its elected officials have sworn, by the laws it is bound to uphold, and by the belief that security without freedom is a pale masquerade which provides neither. [s]
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