Torture in the Bush Gulag: The issue isn't going away

"I wouldn't join the International Criminal Court. It's a body based in The Hague where unaccountable judges and prosecutors can pull our troops or diplomats up for trial.

"And I wouldn't join it. And I understand that in certain capitals around the world that that wasn't a popular move. But it's the right move not to join a foreign court that could - where our people could be prosecuted." - George W. Bush 09/30/04

"Men without conscience are capable of any cruelty the human mind can imagine." - Dick Cheney 01/26/05

"The President is always right." - Steve Bradbury, Acting Deputy Attorney General, 07/11/06

The Christian Science Monitor, which still commits acts of real journalism, has an important article out, Beyond Padilla terror case, huge legal issues by Warren Richey 08/15/07.

The article is the third in a three-part series by Richey. All quotes here are from the 08/15/07 article. The other two parts are:

US terror interrogation went too far, experts say 08/13/07

US Gov't broke Padilla through intense isolation, say experts 08/14/07

The Monitor also has an editorial commenting on the series, A verdict on Padilla – and the US 08/15/07.

Padilla was the Al Qa'ida wannabe who was arrested in what former Attorney General John Ashcroft promoted as a "dirty bomb" case. Although when the courts finally pushed the Justice Department into filing legal charges, the "dirty bomb" story apparently didn't have enough substance to become part of the formal charges. Because, as Richey writes, "the government's case in Miami included no mention of a dirty bomb."

And the Cheney-Bush administration proved in Padilla's case that they could get away for many months with blatantly denying an American citizen basic due process. And torturing him into a psychotic state.

Richey reports:

Padilla was given due process to file a lawsuit challenging his treatment by the government. But as an enemy combatant, he was stripped of every other constitutional protection and right, including the right to know that a constitutional challenge had been filed on his behalf.

Many legal scholars and intelligence experts say Padilla's ordeal highlights the danger of a government that obtains information through secret, coercive means and then selectively releases some of it to justify its actions.

"This is the hallmark of an authoritarian state," says Larry Johnson, a former State Department counterterrorism official and former analyst at the Central Intelligence Agency.

"At many of the points at which the government said 'dirty bomb,' there was no opportunity to respond for the reason that Mr. Padilla was in solitary confinement and no lawyer had been able to talk to him about the charges," says Diane Amann, visiting law professor at the University of California, Berkeley.

Defenders of the administration's illegal detention and torture programs like to pose the question, what will happen if those "terrorists" in Guantánamo and other stations of the Bush Gulag are let free? Why, they'll just go "back" to being terrorists!

I wish some of these authoritarians had made the effort years ago to step out of their six-year-old-brain mode and actually think about what the illegal detention and torture program meant.

The rule of law means having prodecures for things like trials and determining guilt that don't depend on the whims of fallible and even twisted individuals like Dick Cheney, Rummy and Abu Gonzales.

Because what has happened here? We have hundreds of people who have been detained, some on possibly good evidence - few veterans of the Bush Gulag have actually been convicted of anything in a real court procedures - and subjected for years in some known cases to treatment that it would be immoral and cruel to inflict on an animal.

Now, every bit of evidence they provided is tainted by the use of torture. And even if the government can scratch together enough evidence not tainted by torture to convict them, they have the problem that if the sadistic treatment to which they subjected the defendents comes before a jury, it will make the government's case far harder to prove beyond a reasonable doubt. As Richey writes:

Although they seek a life sentence, prosecutors introduced no evidence of personal involvement by Padilla in planning or carrying out any specific terrorist plot or violent act.

There is a reason the government's case is so thin, legal analysts say.

If prosecutors brought the dirty-bomb plot or other alleged illegal actions by Padilla into the Miami case, it would open the door for courtroom scrutiny of the government's use of coercive interrogation techniques against Al Qaeda suspects, including Padilla. And that would have taken jurors deep into the shadowy underside of America's war on terror – a journey in Padilla's case that wends its way from his cell on an isolated wing of the US Naval Consolidated Brig in Charleston, S.C., through covert CIA interrogation sites overseas to an alleged torture chamber in Morocco. (my emphasis)

Secrecy, crime, torture and incompetence are a matched set. If you're breaking the law by torturing, you need to keep it secret. If you have the ability to keep things secrecy, a man like Dick Cheney will fell more free to break the law and commit acts of violence and cruelty. And since secrecy shields the government from the necessary oversight by the Congress, the public and the press (pretending hypothetically that the latter institution were currently capable of such oversight), plain incompetence is also easier to hide. And government officials shielded from accountability by secrecy are also more likely to do their jobs poorly.

In other words, we have the rule of law and legal procedures to avoid just this kind of situation. That's not their only purpose. However much today's authoritarian and neosegregatist Republicans may sneer at the notion that A-rabs or other dark-skinned people have human rights, protecting the individual from improper government action is also a key reason in itself for having the rule of law. Some few Republicans - almost exclusively ones not sitting in Congress - are actually acting like they take they claimed "libertarianism" seriously by objecting the administration's extralegal procedures. But very few of them are doing so.

Then, once you've put a population like the Bush Gulag prisoners into a legal black hole like this administration has done, how does a responsible government then unwind the process and restore the rule of law?

Basically, it comes down to starting to apply the rule of law. Will that mean that some "bad people" will eventually go free? Probably. I have seen at least one report of a former inmate at Guantánamo was found to be involved in terrorist activity somewhere. Though Lord only knows on what kind of evidence that claim was based.

But, you know, if I had been arrested on false charges and tortured for years in a prison and denied all rights of due process, if I were sane enough to think like a normal human being after I got out, it would take a very large gift of divine grace for me not to harbor some serious thoughts of revenge on whatever entity had placed me in that situation. So it would be pretty much a miracle if none of those who have so far endured that experience don't have some thoughts of violent retaliation.

But that's the way the rule of law works. And there are effective legal procedures in place to handle those accused of war crimes, terrorist acts against Americans not falling within the definition of war crimes and conspirators with criminal organizations. There are also effective and well-established procedures in international law, to which the US has voluntarily bound ourselves, to deal with prisoners of war and with determining who should be counted as a prisoner of war and who not.

Restoring the rule of law will mean actually applying those legal procedures. If the government has proper evidence against criminals, it can be used. If their evidence relies on confessions induced by torture, it's just bad evidence and it can and will be thrown out. As Richey writes:

No judge in an American courtroom could permit the introduction of information gathered under such coercive techniques, in part because they carry a high risk of producing unreliable results. If the technique is coercive enough, a subject will say whatever it takes to make it stop, former interrogators say. In addition, the rules of procedure and long-established constitutional protections forbid the use of coerced statements as evidence in a trial.

Also, officials and employees of the government who participated in criminal acts of torture will be liable to prosecution. That's what the rule of law is about.

The torture fans will inevitably whine that those acquitted got off through a "loophole". The truth is that if there's any "loophole" in these cases, far and away the biggest one is that opened by the Cheney-Bush admistration in deciding to throw the rule of law to the winds in these cases.

The position a Republican takes on torture is a good way to tell whether there is anything "libertarian" about them or not. As Richey's article notes, sadly but accurately, when some of Padilla's treatment became public knowledge, "Although civil libertarians protested Padilla's detention without charge, there was no significant public outcry." Certainly there were very few protests from Republican "libertarians".

It's also a pretty good test for the nature of someone's Christian attitude, too. We Christians do claim to worship a God who took human form in Jesus of Nazareth who was brutally tortured to death. My guess is that a God who had that experience is unlikely to look very favorably on those who claim his title as Christians but who support the kind of sick, sadistic practices that have been part of the Cheney-Bush torture program.

Tags: bush gulag, jose padilla, torture