Bush, of course, insists that the United States
does not torture despite extensive evidence that detainees in the Iraq
War and the War on Terror have been subjected to simulated drowning by
“water-boarding,” beatings to death, suffocations, coffin-like
confinements, painful stress positions, naked exposure to heat and cold,
anal rape, sleep deprivation, dog bites, and psychological ploys
involving sexual and religious humiliation.
But Bush says none of this amounts to torture, even
protection of abusive practices now ventures beyond word games into
mind-bending legal rationalizations.
Bush’s lawyers went into federal court in
Washington on March 2 and argued that a new law that specifically
prohibits cruel, inhuman and degrading treatment of detainees – known as
the McCain Amendment after its sponsor, Sen. John McCain – can’t be
enforced at Guantanamo Bay because another clause of the law grants
these prisoners only limited access to U.S. courts.
In other words, the Bush administration is
contending that the McCain Amendment might make it illegal to abuse the
Guantanamo prisoners, but that the inmates have no legal recourse to
enforce the law by going to court and getting an order for the abuses to
With the courts removed from the picture, the
administration’s legal reasoning holds that only Bush can act. He, after
all, asserts that he is the nation’s “unitary
executive,” meaning that he and he alone decides what U.S. laws to
But, in this case, Bush also is the ultimate
authority behind the criminal behavior. Bush and his top advisers, such
as Defense Secretary Donald Rumsfeld, were the ones who ordered “the
gloves off” in the treatment of prisoners seized in both the worldwide
War on Terror and the resistance to the U.S. military occupation of
In December, Bush specifically asserted this
“unitary” power over enforcing the McCain Amendment by attaching a
“signing statement” that reserved for Bush the right to ignore the law
if he so wished.
“The Executive Branch shall construe [the ban] in a
manner consistent with the constitutional authority of the President . .
. as Commander in Chief,” the signing statement read.
So, Congress went through the trouble of enacting a
new law barring cruel, inhuman and degrading treatment of inmates – to
go along with earlier laws prohibiting torture – only to confront a
variety of administration arguments that make all the laws meaningless.
While Bush’s intent to circumvent the McCain
Amendment has been apparent since December, administration lawyers made
it official in arguing that a U.S. District Court judge must dismiss a
complaint by Guantanamo inmate Mohammed Bawazir, whose lawyers
complained that the Yemeni national was subjected to “systematic
Bawazir’s lawyers cited an “extremely painful” new
tactic of brutally force-feeding their client and other inmates on
hunger strikes. The procedure involved strapping Bawazir into a special
chair, forcing a larger-than-normal feeding tube through his nose to his
stomach, and then leaving him in the restraints for almost two hours
while he soiled himself.
“These allegations … describe disgusting treatment
that, if proven, is treatment that is cruel, profoundly disturbing and
violative of” both U.S. and international laws banning torture, said
U.S. District Court Judge Gladys Kessler. [Washington Post, March 3,
But Bush’s lawyers argued that the federal courts
had no jurisdiction over the treatment of the Guantanamo inmates because
a section of the December law – an amendment sponsored by Sens. Lindsey
Graham, R-S.C., and Carl Levin, D-Mich. – limited Guantanamo appeals
only to judgments by military commissions about the inmates’ status as
If that argument prevails, Bush will have wrapped
the Guantanamo prisoners in a legal strait-jacket, preventing them from
proving their illegal mistreatment in court or getting a judge to order
that the criminal behavior be stopped.
In effect, Bush is calling on the Executive Branch,
the Congress and the Judiciary to collude in a charade that lets the
U.S. government publicly condemn torture and other mistreatment of
detainees, but then permits this criminal behavior to continue unabated
while barring the victims any legal recourse to justice.
Bush’s legal arguments turn the Rule of Law inside
out, essentially making all branches of the U.S. government complicit in
a criminal conspiracy that is perpetuated even as anti-torture laws are
held up as shining examples of the American commitment to humanitarian
It’s a case that would leave Kafka and Orwell
either scratching their heads or contemplating how to incorporate these
twisted legal absurdities into a new book.