Bush's Rule of Law
November 2, 2005
George W. Bush
reacted to the indictment of Dick Cheney’s top aide, Lewis Libby, with a
startling assertion about the U.S. legal system. “In our system,” the
President declared, “each individual is presumed innocent and entitled
to due process and a fair trial.”
While Bush’s statement was surely intended to
remind the public that Libby has yet to be convicted of a crime, it was
remarkable to hear Bush endorse the presumption of innocence and due
process after all he has done to erode those principles.
For four years, it has been a central legal precept
of the “War on Terror” that Bush has the absolute right to imprison
anyone of his choosing, including American citizens, who are then denied
even a day in court, let alone a fair trial or presumption of innocence.
While the “rule of law” is usually defined as the
universal protection of everyone equally under the law, Bush’s “rule of
law” seems to mean, “We rule, so we decide who’s protected by the law.”
Those protections are denied people whom Bush deems “terrorists” or “bad
Bush’s lip service to presumption of innocence, for
example, must have been cold comfort to Jose Padilla, a U.S. citizen
held without charges and without the benefit of his day in court since
Padilla was arrested at Chicago’s O’Hare airport
and accused of plotting to set off a radiological “dirty bomb” in a U.S.
city. Bush unilaterally
determined that Padilla was closely associated with al-Qaeda and
represented a “continuing, present and grave danger” to the United
Bush cited his powers as commander in chief in
declaring Padilla an “enemy combatant” and ordering him detained
indefinitely at a military prison in South Carolina. Bush
said Padilla was a “bad guy” and “he is where he needs to be,
Padilla could be jailed for the duration of the war
on terrorism, a potential life sentence given the fuzzy goals and
indefinite timetable of the conflict. No trial is to be held.
Padilla’s capture was initially portrayed by the
administration as a major victory in the “War on Terror.” Bush said
there was a “full-scale manhunt on” for other terrorists involved in the
alleged plot, but to date, no one else involved has been captured.
Later, Deputy Defense Secretary Paul Wolfowitz said the Padilla bomb
plot amounted only to “some fairly loose talk” and “there was not an
actual plan” to attack U.S. cities. [Washington Post, June 13, 2002]
In other words, nothing concrete in the alleged
plot had occurred. Padilla had no bomb-making materials, no target, no
operational co-conspirators, no plan. Beyond assertions from
administration officials, there also was no evidence of Padilla’s guilt.
Yet, three-and-a-half years later, Jose Padilla
remains locked up in a South Carolina naval brig caught in a murky legal
In contrast to Libby’s presumption of innocence –
despite evidence of his guilt cited in a federal indictment returned by
a grand jury – Padilla has been presumed guilty despite a complete lack
of publicly available evidence. For Padilla, there is not even an
Bush has encountered some legal setbacks in his
assertion of unlimited power to jail anyone he wants, but he has managed
to find enough allies on the federal bench to keep Padilla behind bars
and out of a courtroom.
A U.S. District Court judge did
rule that the President has no authority to detain a U.S. citizen as
an enemy combatant and deny that person due-process rights. But this
decision was overturned by an Appeals Court ruling on Sept. 9, 2005,
which cited the congressional authorization to use force against al-Qaeda
as implicitly granting Bush the power to detain the enemy without
bringing formal charges.
Though the Appeals Court backed Bush, the ruling is
likely not the final word, since the case is expected to reach the U.S.
Supreme Court, where several Supreme Court justices have expressed
anxiety about Bush’s position.
But Bush may have found a new ally on the high
court in Chief Justice John Roberts, who has shown great deference to
Bush’s presidential power as a U.S. Appeals Court judge.
On July 15, 2005, just four days before George W.
Bush nominated him to the Supreme Court, Roberts ruled as part of a
three-judge appeals court panel against judicial review for Salim Ahmed
Hamdan, a detainee in the prison camp at Guantanamo Bay.
Hamdan was labeled an “enemy combatant” because he
allegedly was the personal driver of al-Qaeda leader Osama bin Laden.
While not accused of a specific crime against U.S. citizens, Hamdan,
like all Guantanamo detainees, was denied access to U.S. courts and
stripped of rights guaranteed to prisoners of war under the Geneva
Convention of 1949.
Joining two other judges – A. Raymond Randolph,
appointed by George H.W. Bush in 1990, and Stephen F. Williams,
appointed by Ronald Reagan in 1986 – Roberts sided with George W. Bush’s
administration in ruling that the Geneva Convention “does not confer
upon Hamdan a right to enforce its provisions in court.”
Furthermore, the court ruled that presidential
action cannot be constrained by “judicially enforceable rights” in
treaties signed by the U.S. government. The court also endorsed Bush’s
plan for having special military tribunals try and even condemn to death
so-called “enemy combatants.”
Roberts and the two other judges agreed with Bush’s
argument, too, that since al-Qaeda is not a state and doesn’t comply
with the rules of international armed conflict, its “members” don’t
qualify for any protections under domestic or international law.
What that means is that Bush gets to decide who’s a
“member” of al-Qaeda and have that person locked up indefinitely. The
accused is presumed guilty of al-Qaeda “membership” and is not entitled
to due process or a fair trial.
Unlike Lewis Libby, who will almost certainly be
free on bail pending his trial and any appeals of a conviction, some
detainees at Guantanamo Bay in Cuba have been held for nearly four years
without charges or a day in court.
Yet it’s not clear who has done more damage to U.S.
national security – Libby, who helped expose a covert CIA officer and
her counter-proliferation operations or detainees at Guantanamo, some of
whom may have just been in the wrong place at the wrong time or may have
been handed over to Americans by Afghanis seeking a reward.
Without due process or objective review of
evidence, there is no way to know which of the Guantanamo detainees
might have committed some crime or might represent a genuine threat –
and which ones are unjustly accused, trapped in some nightmarish
At Guantanamo, prisoners are subjected to harsh
interrogations and must earn every “privilege” by cooperating with their
Even earning the right to wear a white jumpsuit,
rather than their original orange jumpsuit, requires detainees to
provide information to interrogators about friends and associates who
might be involved with al-Qaeda.
Nothing about this treatment conforms with the
Geneva Convention, which requires a prisoner of war “to give only his
surname, first names and rank, date of birth, and army, regimental,
personal or serial number, or failing this, equivalent information.”
Prisoners can’t be subjected to “physical or mental
torture, nor any other form of coercion” in order to extract
information, according to the Convention. “Prisoners of war who refuse
to answer may not be threatened, insulted, or exposed to any unpleasant
or disadvantageous treatment of any kind,” the rule states.
Yet, American interrogators routinely threaten
prisoners at Guantanamo and employ physical and mental abuse. These
techniques include physical beatings, stripping prisoners naked, and
using dogs to frighten them, according to human rights groups and press
accounts. [See, for instance, Washington Post,
March 1, 2005.]
Julia Tarver, who represents 10 of the detainees at Guantanamo, said
“The level of hopelessness in the camp has reached a point where our
clients are literally vowing they have no other choice but to die.”
To protest their indefinite detentions, endless
interrogations and daily abuse, over 150 Guantanamo prisoners have
engaged in a hunger strike which started Aug. 8, 2005.
The strikers are demanding their legal rights under
the Geneva Convention, adequate food and shelter, clean water, the right
to challenge their detention before an independent commission, and an
end to physical and psychological abuse.
The International Committee of the Red Cross has
warned that the hunger strikers face irreparable damage or death. But
instead of addressing the detainees’ demands, the U.S. military is
attempting to break the hunger strike by inserting tubes up the noses of
strikers and forcing food into their stomachs.
According to Amnesty International and human rights lawyer Clive
Stafford Smith, who represents 42 of the hunger strikers, the emaciated
prisoners are shackled to their beds to stop them from removing the
described how the tubes are forcibly inserted into their noses by
riot guards and are then taken from one detainee and inserted into
another without any sanitization, with the bile and the blood still on
the tube from the previous detainee. The practice allegedly has led to
some detainees vomiting blood.
At the heart of Bush’s “rule of law” is the rejection of any independent
court evaluation of the rationale behind holding a specific individual
as an “enemy combatant.”
Without judicial review, the U.S. government
doesn’t need to present any objective evidence to show that a person
really does belong to al-Qaeda, an organization that doesn’t issue
membership cards and is considered by many experts to be an amorphous
group of like-minded individuals.
Indeed, some of those held in Guantanamo, such as
Tipton Three, were eventually released after establishing that they
were simply caught up in indiscriminate sweeps in Afghanistan.
The Bush position also holds that once designated
as al-Qaeda members, individuals have no legal protections against
torture. The Bush administration has
dismissed provisions of the Geneva Conventions as “quaint,” has
offered legal rationales that justify torture in cases of “military
necessity,” and more recently has eschewed U.S. duties under the
International Covenant on Civil and Political Rights.
The Covenant requires all signatories to submit
reports on their compliance with the treaty every five years to the
United Nations. The U.S. report, submitted on Oct. 21, was years
overdue, and even then was incomplete, declining to mention U.S
violations of the treaty that occurred in places like Iraq and
At a hearing to discuss the report with human
rights organizations and non-governmental organizations, the State
Department maintained that the United States has never accepted the
treaty’s application beyond U.S. borders, and therefore does not feel
compelled to comply with it in those situations.
The Covenant, however, makes it clear that
“No one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment,” and speaks in universal
terms of “every human being,” clearly not confining itself solely to
Although the Covenant provides
that countries may “in time of public emergency which threatens the life
of the nation … take measures derogating from their obligations” under
the Covenant, it specifically states that there are a number of
obligations that cannot be ignored, including the prohibitions against
torture and other ill treatment.
In a recent military spending bill, Sen. John
McCain, R-Ariz., himself a POW during the Vietnam War, led an effort to
force the Bush administration into compliance with international and
domestic laws against torture.
The spending package
included a ban on torturing detainees in U.S. custody regardless of
their nationality or physical location.
In response, the administration, led by Vice
President Dick Cheney, launched a
campaign to pressure the House of Representatives to open a loophole
for CIA covert agents to engage in torture.
Cheney and CIA Director Peter Goss have suggested
language that would exclude from the ban counterterrorism operations by
agencies other than the Defense Department – such as the CIA – “if the
President determines that such operations are vital to the protection of
the United States or its citizens from terrorist attack.”
In an Oct. 26 editorial, the Washington Post
criticized Cheney for “pursuing an initiative that may be
unprecedented for an elected official of the Executive Branch,” namely,
“proposing that Congress legally authorize human rights abuses by
The Post called Cheney “an open advocate of
torture” and warned that this advocacy is more than a theoretical
defense of presidential power.
“The CIA is holding an unknown number of prisoners
in secret detention centers,” where the White House has approved harsh
interrogation techniques for some detainees, including “waterboarding,”
which simulates drowning; mock executions; and the deliberate
withholding of pain medication, the Post said.
In a report in early October, the group Human Rights First
reported that more than 100 detainees have died in U.S. custody
since 2002. According to the group’s research, the Army has identified
27 of these cases that were suspected or confirmed homicides, and at
least seven cases in which detainees were tortured to death.
The abusive practices of the U.S. government over
the past few years have led the New York-based Center for Constitutional
Rights to conclude that “high-ranking U.S. officials, both military and
civilian, are responsible for war crimes.”
filed a criminal complaint with the German Federal Prosecutor’s
Office under the doctrine of universal jurisdiction, which provides for
the prosecution of suspected war criminals regardless of their location
or where the violations took place.
The complaint requested a comprehensive
investigation into the role played by Defense Secretary Donald Rumsfeld,
Attorney General Alberto Gonzales, and nine other high-ranking U.S.
officials in the torture and abuse of detainees held in Iraqi prisons.
The complaint prompted Rumsfeld to cancel a trip to
Germany, where he was supposed to take part in a security conference in
Munich. He made clear to the German government that he would not attend
unless it quashed the legal action. When the Germans refused to do so,
Rumsfeld declined to attend.
It remains to be seen whether the German
investigation leads to any substantive revelations or indictments, but
recent history offers the Bush administration some cause for concern. A
prosecution by a Spanish court led to the indictment and
house arrest of former Chilean dictator Augusto Pinochet in December
2004, for crimes committed during his 17-year rule.
Former U.S. Secretary of State Henry Kissinger also
has had to be careful where he travels. In May 2001, the criminal
brigade of the French police
served Kissinger with a summons. He was called to the Palais de
Justice the following day for questioning about the deaths of five
French citizens during Pinochet’s rule in Chile. Kissinger declined the
invitation and left Paris immediately.
In the spring of 2002, Spanish Judge Baltasar
Garzon wanted to question Kissinger for his role in supporting Pinochet.
Chilean Judge Juan Guzman also submitted 30 questions to Kissinger about
his relationship with Pinochet, questions which Kissinger didn’t answer.
Chilean courts issued a warning that they might seek his extradition if
he continued his refusal to respond.
Though Kissinger hasn’t been apprehended for his
alleged role in crimes committed in Chile, Vietnam, Laos or Cambodia,
the legal moves against him send a warning to U.S. officials that they
are not entirely immune from international law.
As documentary filmmaker Alex Gibney
argued, “One of the advantages of globalization is that it has
brought people closer to the idea of universal accountability.”
The idea of universal accountability took a step
forward last week, when Mexico
became the 100th nation to join the International
Criminal Court, which was established to prosecute war criminals around
the world. ICC president, Judge Phillippe Kirsch, said, “Universality
remains one of our key objectives.”
A majority of countries now belong to the ICC, with
only four Latin American countries not yet members. All the European
Union states, except the Czech Republic, have ratified the treaty.
The United States, however, maintains its
opposition to the international court and continues to negotiate
bilateral agreements with other countries to protect Americans from
being charged with war crimes before the ICC. The Bush administration
has cited fears of “politically motivated” prosecutions.
Ignoring the Rules
Domestically, the Oct. 28 indictment of Libby
– Vice President Cheney's chief of
staff – on charges of
obstruction of justice, perjury and making
false statements to FBI agents is another reminder to the White House
that it can’t operate with complete impunity.
The rule of law
– as it
is classically defined – applies the same legal standards to the
powerful as well as the powerless. It does not let the well-connected
pick and choose which laws apply. It grants the lowliest defendant the
same constitutional protections as the high-and-mighty.
Under the rule of law,
anyone can be held accountable and everyone gets to assert his or her
rights. As Bush said after Libby’s indictment, “each individual is
presumed innocent and entitled to due process and a fair trial.”
However, Bush’s version
of the rule of law has a special proviso: he gets to decide if and when
those legal protections are cast aside.
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