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In the latest outrageous Bush effort to transform this nation into a fascist land of gulags and Big Brothers, his administration has the temerity to tell a federal judge that terrorism suspects must be gagged and prevented from speaking in public or even to their attorneys about the conditions of their confinement and about the torture to which they have been subjected.

The government is asserting that its “interrogation methods” used on suspects in CIA prisons are closely guarded and “top secret”–although it must be the worst-kept government secret ever, since everyone knows what’s going on at the hands of the Bush regime. Nevertheless, because the government deems these methods “top secret,” they argue in a federal court case that this fact means that prisoners must be prohibited from talking about them. Of course they’re also arguing, in light of last month’s unconstitutional Military Commissions Act, that the prisoners in question do not even have the right to talk to a lawyer at all.

There is no limit to the nerve of this administration in its quest to implement its vision of a decidedly unconstitutional monarchy. It now claims for itself the power to declare any information it pleases “top secret” and thereby prevent people from talking about it. Can you imagine? No longer does the government stamp documents “top secret” and then grant access only to a privileged few, which is a proactive, positive way to keep state secrets. It now wants to declare a subject of conversation top secret and then get people to stop talking about it. What nerve.

Of course the real purpose here is to shield the Executive from embarrassment or from having to admit to the depravity it is endorsing against suspects without any regard for what it means to be an American.

In Bush’s America, nobody is safe from the baleful Eye and Hand of the Executive. You better watch what you say.

Today was really a sad day for this country, with the Senate’s passing of the Military Commissions Act of 2006. From the time that Bush signs this bill into law, consider what can happen in this country with this theoretical example:

A scholar from the Middle East comes to the United States on an academic visa, and is granted a green card. He becomes one of 12 million legal immigants to the United States. He contributes to the prosperity, wealth, and knowledge base of this country for years, and comes to love America.

One day he meets up with a relative of his who is visiting from the Middle East. The relative informs him of a charity that provides assistance to children orphaned in the Middle East as a result of the wars in Iraq and Afghanistan. The scholar decides to contribute money to the charity, as he believes it represents a noble cause.

Unbeknownst to him, the charity funds multiple causes, including one that the US government has arbitrarily deemed could be in furtherance of terrorism. Furthermore, the visiting relative is the cousin five times removed from one of the September 11th hijackers, raising more suspicions in the government.

The decision is made to place him under surveillance, without use of a warrant. He has done nothing wrong, but because a court is not allowed to judge the propriety of the warrant the sureveillance continues unimpeded. His phone records are searched, his house put under surveillance.

He meets with his relative again. They’re only swapping recipes, but the government becomes convinced that they are hatching a terrorist plot–especially because the scholar recently had some money wired to him from overseas as an inheritance left over after his grandfather died. But no, the government believes the money will fund an attack.

He is arrested and detained as an unlawful combatant. Now it gets really bad:

• He will be tried by a military tribunal rather than by a jury of his peers, and can be convicted merely by majority vote.
• He may only use a tribunal-appointed military lawyer.
• During his tribunal, the government can enter into evidence a confession made halfway around the world that the scholar hates America and wants to see it destroyed–something that is untrue, but because hearsay is now admissible the scholar has no way to refute it. Who knows if the confessor even exists, anyway?
• His relative is likely also being held as an unlawful combatant, and would be unavailable to provide an alibi.
• He has no right to challenge the legality of his detention via writ of habeas corpus to a federal court, a right well-enshrined in the Constitution. He can therefore be left to rot in jail indefinitely, because he also has no right to a speedy trial.
• He is subject to “harsh interrogation techniques” that meet the President’s interpretation of not violating the Geneva Conventions. Of course, nobody really knows what goes on in those prisons…a bit of “waterboarding” probably won’t hurt, right? Who’s going to know about it? He isn’t going anywhere anytime soon. Even if the rest of the world does find out that torture took place the perpetrators are immune to prosecution, meaning there is almost no restraint on their behavior.

Can we really fathom this kind of thing happening in our supposedly advanced society? Some Republicans today couldn’t.

Republican Sen. Gordon Smith of Oregon said,

“The permanent detention of foreigners damages our moral integrity,” he said. “The power to detain people without showing cause is a tool of despotism. Stripping courts of hearing habeas claims is a frontal attack on our judicial system.”

He was followed by Arlen Specter of Pennsylvania, who said,

“[The bill] would take our civilized society back some 900 years [to a time before the Magna Carta was adopted. This is] unthinkable. What this entire controversy boils down to is whether Congress is going to legislate to deny a constitutional right which is explicit in the document of the Constitution itself and which has been applied to aliens by the Supreme Court of the United States.”

Legal analysts are weighing in too, and not in a positive way. Yale Law School Dean Harold Koh, responding to Congress’s attempt to limit federal court review of the legislation’s constitutionality:

“[T]he image of Congress rushing to strip jurisdiction from the courts in response to a politically created emergency is really quite shocking, and it’s not clear that most of the members [of Congress] understand what they’ve done.”

Do you know someone with a green card? Indefinite detention and “harsh interrogation” (still just a euphemism for sanctioned torture) could now happen to them. And if it can happen to them, it won’t be long before it can happen to you.

Now only the Supreme Court stands in the way of our complete descent into despotism…and I’m not terribly confident given the recent appointments to that bench.

Digby’s Hullabaloo blog has a remarkably moving and eloquent entry about the danger that our current debate on torture poses to our country. I could not possibly say it better than Digby himself–so I repeat his entry here in its entirety:

_____________________

Digby:

I have written often about how the Republicans are becoming what they railed against for decades: totalitarians. Unsurprisingly I suppose, it turns out that what they really hated about Soviet communism was the economics. The 50 years of ranting about personal liberty and anti-authoritarian government seems to have been mere political rhetoric. Now that they are in power themselves they have adopted certain Soviet values quite seamlessly.

Here’s a former Soviet dissident Vladimir Bukovsky, writing in this Sunday’s Washington Post:

This is a new debate for Americans, but there is no need for you to reinvent the wheel. Most nations can provide you with volumes on the subject. Indeed, with the exception of the Black Death, torture is the oldest scourge on our planet (hence there are so many conventions against it). Every Russian czar after Peter the Great solemnly abolished torture upon being enthroned, and every time his successor had to abolish it all over again. These czars were hardly bleeding-heart liberals, but long experience in the use of these “interrogation” practices in Russia had taught them that once condoned, torture will destroy their security apparatus. They understood that torture is the professional disease of any investigative machinery.

Apart from sheer frustration and other adrenaline-related emotions, investigators and detectives in hot pursuit have enormous temptation to use force to break the will of their prey because they believe that, metaphorically speaking, they have a “ticking bomb” case on their hands. But, much as a good hunter trains his hounds to bring the game to him rather than eating it, a good ruler has to restrain his henchmen from devouring the prey lest he be left empty-handed. Investigation is a subtle process, requiring patience and fine analytical ability, as well as a skill in cultivating one’s sources. When torture is condoned, these rare talented people leave the service, having been outstripped by less gifted colleagues with their quick-fix methods, and the service itself degenerates into a playground for sadists. Thus, in its heyday, Joseph Stalin’s notorious NKVD (the Soviet secret police) became nothing more than an army of butchers terrorizing the whole country but incapable of solving the simplest of crimes. And once the NKVD went into high gear, not even Stalin could stop it at will. He finally succeeded only by turning the fury of the NKVD against itself; he ordered his chief NKVD henchman, Nikolai Yezhov (Beria’s predecessor), to be arrested together with his closest aides.

So, why would democratically elected leaders of the United States ever want to legalize what a succession of Russian monarchs strove to abolish? Why run the risk of unleashing a fury that even Stalin had problems controlling? Why would anyone try to “improve intelligence-gathering capability” by destroying what was left of it? Frustration? Ineptitude? Ignorance? Or, has their friendship with a certain former KGB lieutenant colonel, V. Putin, rubbed off on the American leaders? I have no answer to these questions, but I do know that if Vice President Cheney is right and that some “cruel, inhumane or degrading” (CID) treatment of captives is a necessary tool for winning the war on terrorism, then the war is lost already.

I wrote some time back about the ramifications for the torturers in this regime. I quoted liberally from this great article article by Jason Vest in the National Journal:

“If you talk to people who have been tortured, that gives you a pretty good idea not only as to what it does to them, but what it does to the people who do it,” he said. “One of my main objections to torture is what it does to the guys who actually inflict the torture. It does bad things. I have talked to a bunch of people who had been tortured who, when they talked to me, would tell me things they had not told their torturers, and I would ask, ‘Why didn’t you tell that to the guys who were torturing you?’ They said that their torturers got so involved that they didn’t even bother to ask questions.” Ultimately, he said — echoing Gerber’s comments — “torture becomes an end unto itself.”

[...]

According to a 30-year CIA veteran currently working for the agency on contract, there is, in fact, some precedent showing that the “gloves-off” approach works — but it was hotly debated at the time by those who knew about it, and shouldn’t be emulated today. “I have been privy to some of what’s going on now, but when I saw the Post story, I said to myself, ‘The agency deserves every bad thing that’s going to happen to it if it is doing this again,’” he said. “In the early 1980s, we did something like this in Lebanon — technically, the facilities were run by our Christian Maronite allies, but they were really ours, and we had personnel doing the interrogations,” he said. “I don’t know how much violence was used — it was really more putting people in underground rooms with a bare bulb for a long time, and for a certain kind of privileged person not used to that, that and some slapping around can be effective.

“But here’s the important thing: When orders were given for that operation to stand down, some of the people involved wouldn’t. Disciplinary action was taken, but it brought us back to an argument in the agency that’s never been settled, one that crops up and goes away — do you fight the enemy in the gutter, the same way, or maintain some kind of moral high ground?

This is an important thing for us to think about. It’s not just a matter of abstract morality. It’s a practical question of what happens to societies when they let go. It’s hard to imagine how gay marriage or women’s rights could even come close to the kind of weird, inhumane behavior that is set free when you go this deeply into sanctioned authoritarian sadism. I wrote in that post, called Genie In A Bottle:

To some extent civilization is nothing more than leashing the beast within. When you go to the dark side, no matter what the motives, you run a terrible risk of destroying yourself in the process. I worry about the men and women who are engaging in this torture regime. This is dangerous to their psyches. But this is true on a larger sociological scale as well. For many, many moons, torture has been a simple taboo — you didn’t question its immorality any more than you would question the immorality of pedophilia. You know that it’s wrong on a visceral, gut level. Now we are debating it as if there really is a question as to whether it’s immoral — and, more shockingly, whether it’s a positive good. Our country is now openly discussing the efficacy of torture as a method for extracting information.

When Daniel Patrick Moynihan coined the phrase “defining deviancy down” he couldn’t ever have dreamed that we would in a few short decades be at a place where torture is no longer considered a taboo. It certainly makes all of his concerns about changes to the nuclear family (and oral sex) seem trivial by comparison. We are now a society that on some official levels has decided that torture is no longer a deviant, unspeakable behavior, but rather a useful tool. It’s not hidden. People publicly discuss whether torture is really torture if it features less than “pain equavalent to organ failure.” People no longer instinctively recoil at the word — it has become a launching pad for vigorous debate about whether people are deserving of certain universal human rights. It spirals down from there.

People and societies don’t just wake up one morning to find they no longer recognize themselves. It’s a process. And we are in the process in this country of “defining deviancy down” in ways I never thought possible. We are legitimizing torture and indefinite detention — saying that we will only do this to the people who really deserve it. One cannot help but wonder what “really deserves it” will mean in the years to come as we fight our endless war against terror.

Sure, right now it’s just a bunch of foreigners and I guess we don’t feel foreigners are entitled to basic human rights. They must not be human — or at least not as human as “we” are. When you think about it, who knows who “we” are either? Right wingers make millions of dollars writing books about how liberals are godless, death-loving, traitors within. Many people who read those books probably believe these liberals are only one step away from being sub-human too —- they are, after all, godless traitors.

But as the soviet experience shows, anyone can be defined as such sub-humans and at some point it usually comes around to catch even the people who wrote the original tales of godless, death-loving traitors within. I don’t know why — maybe it’s a kill the messenger thing.

I would almost guarantee that if we continue down this path there will someday be a fine, loyal conservative who, for reasons of petty insider warfare or political expediency finds himself in a position like this at the hands of his former comrades:

In 1971, while in Lefortovo prison in Moscow (the central KGB interrogation jail), I went on a hunger strike demanding a defense lawyer of my choice (the KGB wanted its trusted lawyer to be assigned instead). The moment was most inconvenient for my captors because my case was due in court, and they had no time to spare. So, to break me down, they started force-feeding me in a very unusual manner — through my nostrils. About a dozen guards led me from my cell to the medical unit. There they straitjacketed me, tied me to a bed, and sat on my legs so that I would not jerk. The others held my shoulders and my head while a doctor was pushing the feeding tube into my nostril.

The feeding pipe was thick, thicker than my nostril, and would not go in. Blood came gushing out of my nose and tears down my cheeks, but they kept pushing until the cartilages cracked. I guess I would have screamed if I could, but I could not with the pipe in my throat. I could breathe neither in nor out at first; I wheezed like a drowning man — my lungs felt ready to burst. The doctor also seemed ready to burst into tears, but she kept shoving the pipe farther and farther down. Only when it reached my stomach could I resume breathing, carefully. Then she poured some slop through a funnel into the pipe that would choke me if it came back up. They held me down for another half-hour so that the liquid was absorbed by my stomach and could not be vomited back, and then began to pull the pipe out bit by bit. . . . Grrrr. There had just been time for everything to start healing during the night when they came back in the morning and did it all over again, for 10 days, when the guards could stand it no longer. As it happened, it was a Sunday and no bosses were around. They surrounded the doctor: “Hey, listen, let him drink it straight from the bowl, let him sip it. It’ll be quicker for you, too, you silly old fool.” The doctor was in tears: “Do you think I want to go to jail because of you lot? No, I can’t do that. . . . ” And so they stood over my body, cursing each other, with bloody bubbles coming out of my nose. On the 12th day, the authorities surrendered; they had run out of time. I had gotten my lawyer, but neither the doctor nor those guards could ever look me in the eye again.

Perhaps nobody cares that that this very thing is being done every day to hunger strikers in Guantanamo. But do people honestly think it can’t happen to them? Once we unleash this beast it won’t only be terrorists or muslims who will be in danger. In one way or another, we all will be.

_____________________

Wow.

What happened to the resistance to Bush’s gross push for unlimited violations of the Geneva Conventions posed by a few supposedly brave GOP senators like McCain? Apparently it has dissolved into goo, because Bush got everything he wanted and they got nothing. Did McCain suddenly get cold feet when his resistance endangered his 2008 presidential prospects? Consider the terms of this new “compromise:”

• The bill would permit confessions obtained through cruel and inhumane interrogations by the CIA or military before 2005, but not afterward. Small comfort.
• Defense attorneys may challenge hearsay evidence received in coercive fashion in distant countries only if they can prove it is unreliable–something almost impossible to do when it is in writing and the defense cannot cross-examine the confessor. The rules of evidence traditionally bar hearsay evidence uttered outside of court (with some limited exceptions such as a dying man’s declaration of who killed him) because it is fundamentally unfair to enter evidence against an individual without his having the right to confront his accuser in court.
• It strips from defendants the right of habeas corpus. Habeas corpus allows a detainee to challenge his detention as unconstitutional. Without it, a defendant has no right whatsoever to appeal his detention in any manner and can be essentially allowed to rot in jail forever without ever going to trial regardless of his offense (if there even was an offense) or the manner of his treatment. This breathtaking step of stripping habeas corpus has only happened twice before–by Lincoln during the Civil War (later re-instated by the Supreme Court in Ex Parte Milligan), and during Reconstruction by Grant in South Carolina when taking federal action against the Ku Klux Klan. It is very likely the Supreme Court will rule that an indefinite suspension of habeas corpus without emergency justification is unconstitutional.
• The bill bars detainees from citing the Geneva Conventions or any international/foreign laws or authority on detainee or POW rights. What is the administration afraid of here?
• Bush is given the right to interpret the Conventions as he sees fit for anything that falls below the level of “grave breaches.” While McCain grandstanded his “victory” by saying that Bush would be required to publicly issue such interpretations, we already had White House spokesperson Tony Snow saying that such publication might not be necessary.

The entire exercise is disgusting. It desperately attempts to seal away what the US is doing and still claim it is abiding by its treaty obligations, when it is abiding by neither them nor the Constitution. I hope it’s only a matter of time before the Supreme Court steps in again and bars such gross violations of our values.

As for the “brave” resisting-come-rubberstamping GOP’ers…I really just don’t have words that suitably describe my scorn.

In the ongoing battle between the White House and Congress over detainees in secret prisons and the methods for “interrogating” them, I don’t understand why we’re losing sight of the fact that what we are talking about is torture.

As Eugene Robinson points out in the above-linked column, torture is torture period. Bush talks about “alternative” questioning techniques that are part of his little “program” including indefinite detentions that raise mental images of dictators sending dissidents to Siberia. The “alternative” techniques to date have included “waterboarding” (which the administration promises it will stop doing–yeah right), sleep deprivation, exposure to cold, use of ear-splitting noise, and other methods that cause physical and psychological agony.

Bush much prefers to keep the discussion abstract, a struggle over “finding clarity” in the Geneva Conventions by re-defining them as he sees fit. But we can’t get away from what we’re really talking about. It’s torture.

Wanting to bring the discussion back to concrete terms, I looked up the definition of “waterboarding” in Wikipedia because I wasn’t really sure what it meant. Here’s what I found:

The modern practice of waterboarding, characterized in 2005 by former CIA director Porter J. Goss as a “professional interrogation technique”[1], involves tying the victim to a board with the head lower than the feet so that he or she is unable to move. A piece of cloth is held tightly over the face, and water is poured onto the cloth. Breathing is extremely difficult and the victim will be in fear of imminent death by asphyxiation. However, it is relatively difficult to aspirate a large amount of water since the lungs are higher than the mouth, and the victim is unlikely to actually die if this is done by skilled practitioners. Waterboarding may be used by captors who wish to impose anguish without leaving marks on their victims as evidence. [citation needed] Journalists Brian Ross and Richard Esposito described the CIA’s waterboarding technique as follows:

The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner’s face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt. According to the sources, CIA officers who subjected themselves to the water boarding technique lasted an average of 14 seconds before caving in. They said al Qaeda’s toughest prisoner, Khalid Sheik Mohammed, won the admiration of interrogators when he was able to last over two minutes before begging to confess. “The person believes they are being killed, and as such, it really amounts to a mock execution, which is illegal under international law,” said John Sifton of Human Rights Watch.[2]

…

Dr. Allen Keller, the director of the Bellevue/N.Y.U. Program for Survivors of Torture, has treated “a number of people” who had been subjected to forms of near-asphyxiation, including waterboarding. An interview for The New Yorker states:

[Dr. Keller] argued that it was indeed torture. Some victims were still traumatized years later, he said. One patient couldn’t take showers, and panicked when it rained. “The fear of being killed is a terrifying experience,” he said.[4][5]

Matt Lauer recently interviewed Bush about the CIA’s secret prisons and he asked about waterboarding. Here was the exchange on the issue:

Matt Lauer: I don’t want to let this “within the law issue” slip though. I mean, if, in fact, there was water boarding used with Khalid Sheikh Mohammed, and for the viewers, that’s basically when you strap someone to a board and you make them feel as if they’re going to drown by putting them underwater, if that was legal and within the law, why couldn’t you do it at Guantanamo? Why did you have to go to a secret location around the world?

President Bush: I’m not going to talk about techniques. And, I’m not going explain to the enemy what we’re doing. All I’m telling you is that you’ve asked me whether or not we’re doing things to protect the American people, and I want the American people to know we are doing so.

What an arrogant, pompous SOB. A president is subverting the values that America holds most dear and he can’t deign to talk about the vile torture he is authorizing? What’s next..thumbscrews? Iron maidens?

As a few brave senators and representatives battle the GOP establishment’s attempt to rubberstamp Bush’s destruction of any semblance of America as we once knew it, let us not forget what we’re talking about before it gets lost in all the fancy language and political spin. We’re talking about torture. This is not something about which we can have a gentleman’s debate and still pretend to be the champions of liberty and democracy around the world. It’s torture, a technique that is not even particularly useful given the victim’s need to tell his tormentors whatever they want to hear, made up or otherwise, just so that they will leave him alone.

Get it straight, ok? Torture.

Andrew Sullivan speculates on the truthfulness of the UK terror plot in light of questions raised by Craig Murray, the British Ambassador to Uzbekistan whose internal memo raised a ruckus a while back when it complained about the use of evidence obtained from outsourced torture.

They seem to believe that the lack of a bomb, purchased tickets, or some conspirators’ passports would have made it difficult to convince a jury of conspiracy to commit the terror plot, and they question whether the information about the plot came from tortured prisoners in Pakistan. Murray speculates that the real plot may have been the US and British governments being politically motivated to be seen as having stopped another 9/11.

If they are suggesting that officials should have waited until the last possible minute to arrest these suspects, they not only propose something really reckless but they also have the law of conspiracy wrong.

Can you imagine the recriminations that would have occurred had authorities decided to wait until the very last moment so as to collect as much evidence as possible, and then had the bombers commit their act sooner than the authorities had anticipated? How would they be able to explain not having moved sooner to prevent such a massive loss of life? There is no way such an approach would have flown if things had not gone exactly right according to authorities’ plans.

Additionally, if you look at the law of conspiracy at least as defined in the United States (which is often derived from British common law) you find the following definition of conspiracy:

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both. (emphasis added)

Conspiracy requires the commission of an “overt act” before a person can be charged with the offense. Merely sitting around a table talking about a plot is not enough. However the law does not require that every act but the final one be performed before the conspiracy charge will stick. Such a requirement would be socially irresponsible and risky. The law only requires “any (overt) act” be undertaken.

Did these suspects perform “any overt act?” I really think it’s too soon to tell. Did they buy the liquids needed to create the bombs? Did they buy the explosion mechanisms? Had they applied for their passports? Did they receive large sums of money from terrorist groups? Any of these acts taken alone are innocent enough, but in the context of a conspiracy would arguably be sufficient to meet the “any act” requirement.

It’s unreasonable to ask that British authorities wait until bombs were assembled before moving in. It’s not unreasonable to ask that the facts of the case be brought to light as soon as possible. Let’s give the investigation time to expose the facts before we go accusing our governments of their own conspiracy.