Legalizing Abu Ghraib
When Americans first saw photos of Abu
Ghraib prisoners — hooded, naked, terrified — few doubted they
were looking at portraits of torture. On that day in the spring of
2004, Senator Lindsey Graham told the nation that the American
soldiers responsible for such outrage would be brought to justice.
Not just the sergeants and privates, he promised, but those at the
top who failed in their duty to prevent it. So far, however, no
senior officer has been charged.
And after this week, none ever will — assuming, as we do, that
President George W. Bush signs into law the Military Commissions
Act, which passed both houses of Congress last Friday, September
This law concentrates extraordinary power in the hands of the
president, allowing President Bush to identify anyone he chooses,
including American citizens, as enemy combatants. As such, they can
be imprisoned indefinitely, interrogated by methods approved only
by the president, and deprived of any court review for their case.
According to this law, any president of the United States will now
be able to personally interpret the Geneva Conventions as he or she
sees fit, confident that such interpretations must stand inviolate.
In effect, the courts will be prevented from hearing any challenge
to the president’s decisions.
And because the president is, according to the bill, able to
“promulgate administrative regulations … which are not grave
breaches of the Geneva Convention,” almost all the acts we saw
committed in the photos of Abu Ghraib could be decreed by any
president as lawful.
For those senators, congressmembers, and ordinary citizens who
think such a law sounds like a good idea, I suggest they substitute
the name Hillary Rodham Clinton for George W. Bush and discover how
happy they feel having so much unchecked power in the hands of one
Congress, by passing the bill in the
final hours before it recessed, has not only proven what its
harshest critics have charged — that that body has been nothing
more than an emasculated rubber stamp for the executive
branch — but it has successfully stripped important powers from
the judiciary as well, substantially undermining our 230-year-old
system of checks and balances.
From the earliest days after September 11, 2001, President Bush
and his administration have sought to expand presidential power in
unprecedented ways. First, the president acted according to the
idea of the “unitary executive,” which is essentially a fringe
leagal cover to justify the president running the executive branch
of the government in any way he sees fit. Secondly, he designated a
new legal category in what he calls the global war on
terrorism — the enemy combatant. This person, he explained, is
neither civilian nor soldier, but exists in a limbo-like state that
has the legal rights of neither. Thirdly, in a memo signed by the
now Attorney General Alberto Gonzales, the administration defined
as acceptable any coercion short of “pain equivalent in intensity
to the pain accompanying serious physical injury such as organ
failure, impairment of bodily function, or even death.”
Since the courts still had the right to hear challenges to
directives issued by the president of the United States, these
ideas and actions were contested in numerous cases. In 2004, the
Supreme Court denied that the executive branch could deprive
prisoners of any legal redress and several justices suggested that
the president could not act without congressional
The Military Commissions Act, all 1,000 pages of it, was written
by the Republican leadership, was lobbied for by Vice President
Dick Cheney, and is intended to give the president such
Of course, since we still have the right to challenge laws
passed by Congress before courts to determine if they are
constitutional, most experts, including several Republican senators
who voted for the bill, believe that lawsuits are inevitable. “We
should have done it right, because we’re going to have to do it
again,” Senator Gordon Smith, a Republican from Oregon, told the
New York Times recently.
In fact, attorneys for 25 men being held in Afghanistan have
already launched what looks to be the first legal challenge to
President Bush’s new plans for prosecuting and interrogating
terrorist suspects. The court documents call for the prisoners to
be released or to be charged with a crime and allowed to meet with
attorneys. This is known as a habeas corpus petition, one of the
oldest concepts in the history of our legal system. With the
capitulation Congress made to the president, “those rights are in
danger of being curtailed,” said a lawyer for the Center of
Constitutional Rights, the organization that filed the
So what does all this mean for the president, for Congress, for
the country? For one thing, it means that we are all going to be in
some serious trouble unless the voters act to change Congress, to
elect representatives who will be able to stand up to the president
when he or she attempts to undermine the basic principles on which
this country was founded. Unless we speak with our votes, we’ll be
in much worse trouble than we are in now.
It means that every senator and congressmember who voted for
this bill and who is up for election in November should be
defeated. For us here in Santa Barbara County, that means a “no”
vote for Rep. Elton Gallegly.
It means that we all must show courage in the face of the Bush
administration’s cold-blooded and, in our opinion, unpatriotic
attempts to terrify the nation. We must not be so afraid that we
will give up the basic rights that our country has struggled to
uphold through other grave and terrible times.
If we don’t, then we will bear the consequences that other
nations have experienced when they have abandoned their principles
in the panic of the moment.
— Marianne Partridge, Editor-in
The Military Commissions Act
What follows is a brief synopsis of some of the major legal
points likely to be contested in coming months.
Enemy Combatants: The bill now legally defines
an enemy combatant as anyone — including legal residents of the
United States and foreign nationals living in their own
countries — who has engaged in “hostilities against the United
States,” including providing material support to an organization
accused of terrorist activities. The president is empowered to use
whatever criteria he chooses to determine whether or not people are
Habeas Corpus: Enemy combatants held in U.S.
military prisons or elsewhere are denied the right to challenge any
aspect of their detentions in U.S. courts. Prisoners have lost
legal recourse if they are tortured in U.S. custody or are
wrongfully detained. The president may authorize the military to
lockup any non-U.S. citizen for life without ever charging him/her
with a crime or giving him/her access to a lawyer or a trial with
public evidence, impartially enforced.
Military Commissions: Those enemy combatants
who are tried will be before a military commission. They will not
be guaranteed access to evidence used against them or to the
counsel of their choice. The use of evidence obtained through
coercion or hearsay is permitted at the discretion of the military
judge. The secretary of defense — with no judicial oversight — will
determine the procedures of military commissions, as well as who
sits on them. These commissions may sentence prisoners to
Torture: Torture and sexual assault are
redefined so broadly that it is largely up to interrogators to
determine what methods are permissible. The penalty for U.S.
officials who engage in the few activities specifically outlawed,
such as murdering or raping a detainee, will be tried by military
commission. No one — enemy combatant or otherwise — may accuse any
U.S. agency or agent of violating the Geneva Conventions in any
U.S. court. The president has the power to interpret and apply the
Geneva Conventions, including those statutes prohibiting torture.
His decisions could remain secret; the bill does not require any
public listing of his approved interrogation methods.