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Bush Flummoxes Kafka, Orwell

By Robert Parry
March 3, 2006

Even Kafka and Orwell, masters at dissecting the cruel absurdities of totalitarian state power, might be at a loss for words in the face of George W. Bush’s latest legal and rhetorical formulations on torture.

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 as his 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 end.

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 enforce.

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 Iraq.

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.

Forced Feedings

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 torture.”

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, 2006]

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 “enemy combatants.”

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 principles.

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.


Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Secrecy & Privilege: Rise of the Bush Dynasty from Watergate to Iraq, can be ordered at secrecyandprivilege.com. It's also available at Amazon.com, as is his 1999 book, Lost History: Contras, Cocaine, the Press & 'Project Truth.'

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