Outlaws on Torture

By Cole, David | The Nation, June 28, 2004 | Go to article overview

Outlaws on Torture


Cole, David, The Nation


The "war on terrorism" is in trouble, and at the very moment the Bush Administration needs it most--election season. George W. Bush has decided to stake his campaign on his ability to protect us. But this strategy may well fail, as with each passing day we learn of another reason to doubt the Administration's ability to keep us secure.

Take the Justice Department's recent revelations about Jose Padilla, the US citizen it has held as an "enemy combatant," without charges or trial, for two years. When Padilla was first locked up, the Administration provided only the sketchiest details. But after the Supreme Court displayed skepticism about the government's position, the Administration chose to disclose new information to show that Padilla really is a "bad guy." Deputy Attorney General James Comey insisted that the timing--one month before the Supreme Court is to rule--was mere coincidence.

But leaving aside the fact that we've never been able to hear Padilla's side of the story, everything the government disclosed about his alleged activities, Comey admitted, would be inadmissible in court. That's because it's all the result of coerced confessions, which are notoriously unreliable. Some information was obtained through a two-year incommunicado interrogation of Padilla, designed, by the government's own admission, to coerce him into talking by rendering him without hope and wholly dependent on his captors. The rest comes from Al Qaeda figures held in undisclosed CIA locations, where interrogators, among other tactics, reportedly push suspects under water until they think they're drowning in order to encourage cooperation.

On June 7 and 8, the Wall Street Journal and Washington Post disclosed the existence of two legal memos from the Defense and Justice departments arguing that the President is not subject to the international and federal bans on torture whenever he acts "pursuant to his commander-in-chief authority" and that military officials are also immune from prosecution if they believe they are following orders. In this view, the President is bound by no law. He can make up the rules as he goes along and then simply find an eager lawyer to write a secret memo justifying his actions. The Defense Department memo has now been leaked, but Attorney General Ashcroft refused to disclose even to Congress the memo from his agency.

The Administration has sought to downplay the memos as mere think-pieces not necessarily acted upon. …

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