The Common Good
September/October 2007

Sins of Commission

by Paul Magno | September/October 2007

The Bush administration's "license to torture."

In 2006, the Supreme Court struck down the military commissions that President Bush had set up to try Guantanamo prisoners, ruling that they were not authorized by federal law and that they violated the Geneva Conventions.

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A few months after the high court's ruling, a compliant Congress passed, and Bush signed, the Military Commissions Act (MCA), seeking to provide the legal backing for the commissions and ignoring an obvious alternative: trial in federal criminal court of those who actually have been charged with a crime. Despite the questions about the MCA that continue to crop up in both the federal and military legal systems, the administration has stuck by the act, which is breathtaking in the depth of its departure from the due process supposedly assured by the U.S. Constitution. At this point, the act is aimed at those outside the U.S., but there's no guarantee that the rights of U.S. citizens won't follow.

It is accurate to say, as many have, that this law is destructive of civil liberties, the Constitution, and democracy. But it does more than that. The MCA allows the president broad latitude to simply designate and detain people as "enemy combatants" indefinitely, in circumstances that thoroughly militate against accountability. Detention centers and their personnel are relatively invisible; the act affords military and CIA "interrogators" retroactive immunity from prosecution dating back a decade. The MCA also shrinks the definition of torture by naming a short list of forbidden acts (thus leaving a long list of legally defensible ones). All of this gives military jailers a virtual license to torture their prisoners with impunity.

TORTURE SURVIVORS recognize this reflexively. They look at a phenomenon such as the MCA from the viewpoint of experience and see the government grabbing the biggest armload of power that it can to intimidate and terrorize enemies, real and imagined. It reminds them of the autocratic regimes of their home countries, at whose hands they suffered arbitrary detention and frightful torture. When so many of these survivors later sought refuge in the United States, it was for the relative safety of a dependable rule of law that respected the person. After the MCA, this country doesn't feel nearly as safe; vulnerability to the terrifying caprices of government feels disturbingly like home for many survivors.

To be sure, there is language in the MCA against torture, and it even prescribes legal liability for torturers. But it's important to see past the formality of language to the law's intent. This is a law that aims, heart and soul, at opaque legal processes that owe little to established criminal or international law—the act is an effort to avoid both.

The many aspects of the MCA frequently cited as problematic—denial of habeas corpus, coerced testimony, hearsay testimony, immunity for those who inflict abuse or worse on prisoners—are threads in a dense curtain erected over the entire apparatus of detention: unaccounted captivity and interrogation in God-only-knows-what places, by God-only-knows-what means.

We have, through the tenacity of some groups, gotten a glimpse inside Guantanamo, and what's been seen there has been disturbing. What is happening where we haven't been able to get even a peek—Afghanistan's Prison of Darkness, Diego Garcia, the acknowledged CIA prisons in Asia and Europe, and the human rights-violating governments to whom we are shipping detainees by "extraordinary rendition"?

At the end of the MCA road, is the latitude to torture narrower or broader? If the wizard is insisting that we pay no attention to the man behind the curtain, how will we know? My educated guess, based on the screams coming from behind the curtain: probably more torture, not less.

Why should we repeal the MCA? Because this law enables abusers, torturers even, to do whatever they like with impunity, even if it says otherwise. And—ask any survivor of torture—that is not reasonable.

Paul Magno is coordinator of the Campaign to Repeal the Torture Law, a project of Torture Abolition and Survivors Support Coalition International (TASSC International) in Washington, D.C.

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