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Bush's Rule of Law

By Nat Parry
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 guys.”

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 May 2002.

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 States.

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, detained.”

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.

Major Victory?

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 twilight zone.

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 indictment.

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.

Libby Contrast

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 netherworld.

At Guantanamo, prisoners are subjected to harsh interrogations and must earn every “privilege” by cooperating with their interrogators.

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.]

Attorney 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 tubes.

Detainees have 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.

Sweeping Authority

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 the British 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 Guantanamo Bay.  

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 domestic law.

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.

McCain Proposal

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 Americans.”

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.

Universal Accountability

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.”

CCR 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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