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Bush's 'Apex' of Unlimited Power

By Nat Parry
June 15, 2004

George W. Bush is asserting presidential authority that in theory covers the lives and liberties of everyone, everywhere, U.S. citizens and foreigners alike, a claim of power so sweeping that it permits him to imprison, torture and kill at his choice without legal constraint anywhere in the world.

Bush’s belief in his unlimited authority is implicit in a series of administration legal opinions. They include Bush’s declaration that he has the power to arrest and indefinitely imprison anyone he deems an “enemy combatant,” no need for charges or a trial. Bush’s lawyers also are claiming for him the right to order the torturing of anyone in U.S. government custody and the power to kill his international enemies whenever he judges that necessary, even if civilian bystanders also must die.

It’s not so much that Bush is saying that he is above the law or even that he – regally – is the law. He is claiming that no law can infringe on his inherent power to do whatever he wishes as commander in chief. It is a declaration of personal authority unprecedented in scope and contemptuous of American constitutional checks and balances. Ultimately, this Bush Doctrine of Presidential Power is what’s at stake in the Nov. 2 elections.

While elements of Bush’s grand self-vision have been known for months, the full picture has only slowly come into focus. In June 2002, Bush ordered U.S. citizen Jose Padilla detained indefinitely, incommunicado, without formal charges and without constitutional rights, simply on Bush’s assertion that the alleged al-Qaeda operative was an “enemy combatant.”

In August 2002, the Justice Department asserted that international laws against torture don't apply to interrogations of al-Qaeda suspects. Around the same time, White House lawyers asserted that the President has the right to wage war without authorization from Congress. And during the early days of the U.S. invasion of Iraq in 2003, Bush authorized the bombings of civilian targets, including a restaurant, merely on the belief that Iraqi dictator Saddam Hussein or other Iraqi leaders might be there.

The latest piece of the picture became apparent in Attorney General John Ashcroft’s appearance before the Senate Judiciary Committee on June 8, when Ashcroft refused to show Congress the administration’s memos arguing that Bush has the inherent authority to order torture whenever he deems that necessary.

Torture Memo

The Wall Street Journal, which obtained a draft of the torture memo, summarized its contents this way: “The president, despite domestic and international laws constraining the use of torture, has the authority as commander in chief to approve almost any physical or psychological actions during interrogation, up to and including torture.”

The Journal also reported that “a military lawyer who helped prepare the report said that political appointees heading the working group sought to assign to the president virtually unlimited authority on matters of torture – to assert ‘presidential power at its absolute apex,’ the lawyer said.” [WSJ, June 7, 2004]

Though administration lawyers have written legal opinions asserting Bush’s unfettered powers, the concept of “presidential power at its absolute apex” isn’t really about law; it’s about lawlessness. It’s about all power invested in the hands of one man with the law made irrelevant in the wake of the Sept. 11, 2001, terror attacks. Essentially Bush is saying that the murderous attacks have required the de facto partial suspension of the U.S. Constitution and the abrogation of international law.

While the U.S. Supreme Court and the U.S. Congress could theoretically repudiate this Bush Doctrine, it is not clear whether Bush would respect any commands from the two other constitutional branches. It’s also conceivable that the Supreme Court and Congress – given their conservative majorities – will either accede to Bush’s theories about his own powers or duck the central issues, allowing Bush to continue his activities for the foreseeable future.

That was the significance of Ashcroft’s haughty refusal to give Congress the torture memo. Ashcroft rebuffed the request from the Senate Judiciary Committee without even asserting a legal rationale, such as the concept of “executive privilege.” His refusal amounted to telling the Congress “I-don’t-wanna.” Though angry Democratic senators warned Ashcroft that he could be charged with contempt of Congress, the chances of such charges in the Republican-controlled legislature are extremely remote.

The real challenge against Bush is more likely to come from anonymous federal bureaucrats who have been so shocked at Bush’s decisions to cast aside traditional constitutional and humanitarian standards that they are leaking details of the secret policies to the news media, which itself has performed more professionally in reporting this news than it has in several years.

Word Games

Still, the media analysis of this Bush Doctrine has focused on its parts, not its larger meaning. Putting those pieces together creates a troubling mosaic of a leader who disdains legal limits, trusts his personal instincts and considers himself guided by the Almighty.

In his “gut” decision-making, Bush has assumed power over life and death for foreign opponents as well as civilians who get in the way. The New York Times, for instance, reported on June 13 that senior U.S. military and intelligence officials have disclosed that Bush’s orders to attack Iraq led to “many more failed airstrikes on a far broader array of senior Iraqi leaders during the early days of the war last year than has previously been acknowledged and some caused significant civilian casualties.” The Times reported that all 50 airstrikes were unsuccessful in killing the targeted Iraqi leaders, but did inflict dozens of civilian casualties.

“The broad scope of the campaign and its failures, along with the civilian casualties, have not been acknowledged by the Bush administration,” the Times reported.

One of the attacks aimed at killing Saddam Hussein instead blew up patrons at a Baghdad restaurant, killing 14 civilians, including seven children. One mother collapsed when rescue workers pulled the severed head of her daughter out of the rubble. Bush has offered no apology for the carnage.

During the Iraq invasion, the U.S. news media and political Establishment raised few questions about the killing of Iraqi civilians, presumably believing that Bush had the right to target Iraqi leaders because they supposedly were threatening the United States with weapons of mass destruction, the principal rationale cited by Bush for the invasion.

But the failure to find the alleged stockpiles of unconventional weapons – after having ignored the United Nations appeals for more time to search for the WMD – suggests that Bush’s self-defense argument was a bogus pretext for war. In other words, Bush was asserting a right to kill foreign leaders and civilians even if their countries were not threatening the United States. Their deaths could be ordered simply on Bush’s say-so.

Bush did win passage of a war resolution from Congress in fall 2002, but his administration argued that he already possessed the necessary war-making authority without any action by Congress. Indeed, in retrospect, the war resolution a month before the November elections was probably more a political device to create Democratic divisions and win more Republican seats than a sincere recognition of the power to declare war that the Founding Fathers invested in the Legislature, not the Executive.

Beyond simply overriding laws, Bush has sought to unilaterally redefine their meanings. The torture memo, for instance, argues that torture is not torture if the brutality doesn’t cause “serious physical injury, such as organ failure, impairment of bodily function or even death,” or in the case of psychological abuse, if it doesn’t last “months or even years.”

White House assurances that Bush’s behavior is within the law must be taken with a grain of salt, since Bush’s view of the law is that he gets to define the terms and then he gets to decide if the law applies to him.

So, what should a listener make of White House spokesman Scott McClellan’s assurance that when prisoner interrogations are undertaken, “the President expects that we do so in a way that is consistent with our laws”? Does that mean “consistent” with Bush’s interpretation of the laws? Should there be any comfort from Ashcroft’s statement that he knows of no presidential order that would allow terror suspects to be tortured? Does an all-powerful President even have to express a decision in a formal order? Wouldn’t a presidential nod of the head be enough?

Coming to Light

The possibility of torture being approved by the White House was raised in disclosures of the March 2003 memorandum obtained by the Wall Street Journal. In it, administration lawyers offered legal doctrines “that could render specific conduct, otherwise criminal, not unlawful.”

They argued that the president, and anyone acting at the president's orders, are not bound by U.S. laws or international treaties prohibiting torture, asserting that the need for “obtaining intelligence vital to the protection of untold thousands of American citizens” supersedes any obligations the administration has under domestic or international law. [WSJ, June 7, 2004]

“In order to respect the President’s inherent constitutional authority to manage a military campaign,” the memo states, U.S. prohibitions against torture “must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority.”

It also doesn’t seem that these considerations were simply academic. Recent disclosures about U.S.-run prisons for captives in the Afghan and Iraq wars suggest that torture has been used extensively in “intelligence gathering.” Investigative journalist Seymour Hersh disclosed in The New Yorker's May 10 issue that a 53-page classified Army report written by Gen. Antonio Taguba concluded that Abu Ghraib prison’s military police were urged on by intelligence officers seeking to break down the Iraqis before interrogation.

The abuses, occurring from October to December 2003, included use of a chemical light or broomstick to sexually assault one Iraqi, the report said. Witnesses also told Army investigators that prisoners were beaten and threatened with rape, electrocution and dog attacks. Other abuses documented in photographs include an Iraqi standing naked covered in excrement and U.S. soldiers beating helpless prisoners.

“Numerous incidents of sadistic, blatant and wanton criminal abuses were inflicted on several detainees,” wrote Taguba.

It is also clear that high-ranking military officials were directly involved in some of the abuses. Lt. Col. Steven L. Jordan, an Army reservist who took control of the Joint Interrogation and Debriefing Center at Abu Ghraib in September 2003, is reported to have played a key role at Abu Ghraib in overseeing interrogations. Other military personnel have described him as being intimately involved in an incident on Nov. 24, 2003, when a detainee was confronted in his cell by snarling military dogs. [Washington Post, June 9, 2004]

Jordan told Taguba during the Army investigation that a superior military intelligence officer had said that the White House was requesting information concerning “any anti-coalition issues, foreign fighters, and terrorist issues.”

A former senior administration official told the Washington Post that Bush “felt very keenly that his primary responsibility was to do everything within his power to keep the country safe, and he was not concerned with appearances or politics or hiding behind lower-level officials.” [Washington Post, June 9, 2004]

At best, it seems that by placing the highest emphasis on obtaining information, regardless of the rules of interrogation, Bush created the atmosphere in which the Abu Ghraib torture was allowed to take place. As Kenneth Roth, the executive director of Human Rights Watch, put it, “The horrors of Abu Ghraib were not simply the acts of individual soldiers. Abu Ghraib resulted from decisions made by the Bush administration to cast the rules aside.”

International Law

Prohibition of torture is enshrined in a range of international treaties as well as U.S. law such as the Torture Act. The U.S. Code defines torture as "an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering ... upon another person within his custody or physical control." The code assumes jurisdiction over anyone who is "a national of the United States," with no mention of whether he or she is acting on behalf of the commander in chief.

International law includes the Covenant on Civil and Political Rights, which makes it clear that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Although the Covenant provides that states may “in time of public emergency which threatens the life of the nation … take measures derogating from their obligations” under the Covenant, it specifically states that there are a number of obligations that cannot be abrogated, including the prohibitions against torture and other ill treatment.

The UN Convention Against Torture defines torture as, “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”

It requires each state party – including the U.S., which is a signatory – to take effective measures to prevent acts of torture in any territory under its jurisdiction. “No exceptional circumstances whatsoever,” the Convention reads, “whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

The Geneva Convention provides that prisoners of war must “in all circumstances be treated humanely.” More specifically, certain acts “are and shall remain prohibited at any time and in any place whatsoever.” These acts include “violence to life and person, in particular … mutilation, cruel treatment and torture,” as well as “outrages upon personal dignity, in particular, humiliating and degrading treatment.”

Potential Defenses

The Bush administration’s memo, however, asserts that these rules don’t apply to anyone carrying out Bush’s instructions. The March 2003 legal memorandum argues that those accused of torture need not worry about prosecution for war crimes. Violators have several potential defenses, according to the memo, including the “necessity” of using such methods to extract information to head off an attack, or because they were following “superior orders.”

The superior orders claim is also known as the Nuremberg defense. It is the defense used by the Nazis charged after World War II, namely that the accused were acting pursuant to an order. The Nuremberg tribunal rejected this argument, however, stating, “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.”

A Pentagon official told the Wall Street Journal that some military lawyers objected to some of the proposed interrogation methods as “different than what our people had been trained to do under the Geneva Conventions.” Regardless, they all signed on to the final report in April 2003, just as the U.S. occupation of Iraq was beginning.

Following the legal memorandum, Donald Rumsfeld revised Pentagon interrogation procedures. Pentagon officials claim that the March report had no effect on the revisions of interrogation practices. But the report clearly intended to provide a legal “out” for the torture that traced back to Rumsfeld’s revisions.

There have been warnings over the past couple of years about torture in U.S.-run prisons. One soldier, Camilo Mejia, tried to blow the whistle on the abuses and then went to jail for refusing to fight in Iraq. But incontrovertible evidence of abuse came with the Abu Ghraib photos.

Bush’s Gulag

Human Rights Watch traces the Abu Ghraib prison scandal back to the earliest days of the “war on terror.” The group documents how the administration adopted a deliberate policy of permitting illegal interrogation techniques – and then spent two years covering up or ignoring reports of torture and other abuse by U.S. troops. [See the Human Rights Watch report.]

When the Bush administration sent detainees to Camp X-Ray at Guantanamo Bay in Cuba in January 2002, Defense Secretary Rumsfeld declared the prisoners to be “unlawful combatants” undeserving of the protections laid out in the Geneva Conventions. There was an international outcry when the living conditions of the prisoners were revealed, and particularly after photographs were released showing the detainees in open-air cages being subjected to what looked like sensory deprivation techniques.

European leaders and human rights groups objected to the treatment with some of the sharpest criticism coming from the staunchest U.S. ally, the United Kingdom. Three British cabinet ministers – Robin Cook, Patricia Hewitt and Jack Straw – expressed concern that the prisoners were not being treated well and that international agreements about the treatment of prisoners of war were being breached.

The U.N. High Commissioner for Human Rights, Mary Robinson, also objected to the treatment of the detainees and called on the Bush administration to follow the Geneva Conventions. In a Jan. 19, 2002 column in the British Independent, Robinson argued that because the Afghanistan conflict was of an international nature, “the law of international armed conflict applies.” She took issue with the administration's assertion that the prisoners were “unlawful combatants” and thus outside the protections of the Geneva Conventions.

In defending the U.S. dismissal of the Geneva Convention’s jurisdiction, and as a response to the international criticism of Camp X-Ray, White House spokesman Ari Fleischer argued that “the war on terrorism is a war not envisaged when the Geneva Convention was signed in 1949.” The White House said, “the Convention simply does not cover every situation in which people may be captured or detained by military forces.”

Legal experts rejected this position, pointing to language in the Geneva Convention that clearly intends it to be all-encompassing regarding international conflict. As the Red Cross stated itself upon the signing of the Geneva Convention in 1949, “no possible loophole is left; there can be no excuse, no attenuating circumstances.” [For more on the international debate regarding Guantanamo Bay and the Geneva Conventions, see Consortiumnews.com's "Bush’s Return to Unilateralism."]

The Bush administration rejected those arguments and has insisted that Guantanamo Bay falls outside the parameters of either U.S. or international law. The Justice Department argued in a Jan. 22, 2002, memo that U.S. officials could not be charged with war crimes for the way prisoners were detained and interrogated. The argument boiled down to assertions that the war on terror is not covered by the Geneva Conventions and that because al Qaeda fighters do not follow the laws of war, they are not protected by international law.

Wrong Place, Wrong Time

But it is now clear that even if the Justice Department’s legal argument about al-Qaeda held water, it wouldn’t pertain to many of the captives at Guantanamo Bay, because many of them do not appear to be terrorists. As some foreign nationals are being released, it is becoming apparent that many were simply in the wrong place at the wrong time.

After five British citizens were released from Guantanamo, the Observer wrote a long article on March 14, 2004, based on interviews with the so-called Tipton Three, who had been held for two years. They had entered Afghanistan, they said, solely to help provide humanitarian aid, and had no intention of fighting the U.S. forces.

Although they had not carried arms, the Bush administration labelled them “unlawful combatants” and sent them to the prison camp at Guantanamo. Two years later, the American authorities accepted their claims that they were never members of the Taliban, al-Qaeda or any other militant group, and released them. [The Observer, March 14, 2004]

The Mirror carried an article based on interviews with other former Guantanamo prisoners called “My Hell in Camp X-Ray.” Both the Mirror and Observer articles detailed systematic abuses of the prisoners in Afghanistan, on the 20-hour plane trip to Cuba, and within the Guantanamo Bay prison.

These abuses included being kept in tight chains on the flight to Guantanamo, not permitted to even use the bathroom. The chains were so tight, claimed Shafik Rasul, that he lost feeling in his hands for the next six months. At Guantanamo, there were beatings and solitary confinement for trivial violations of arbitrary rules, endless interrogations under austere conditions, and disrespect for detainees’ religious beliefs. Sleep deprivation techniques were also used, with prisoners kept in tiny cells with bright lights left on, and the cells freezing at night and very hot during the day.

Alarm Bells

As the Guantanamo prison was being opened, leaders from around the world sounded alarm bells, warning that by refusing to adhere to the Geneva Conventions, the U.S. was heading down a slippery slope in which greater abuses were sure to follow. Some argued that the detainees must be accorded rights on basic humanitarian grounds, while other world leaders pointed out that once international standards are weakened, they become much more difficult to enforce, including situations in which U.S. soldiers are captured in battle.

But neither the Bush administration nor the U.S. news media appeared alarmed by such concerns. That remained the case even as U.S. officials were admitting to newly adopted interrogation methods that resembled torture. The Washington Post reported in December 2002 that terrorist suspects were being subjected to "stress and duress" tactics, which in some cases could be considered torture. [Washington Post, Dec. 26, 2002]

U.S. officials admitted to the use of sleep deprivation in their interrogations of prisoners, a practice with ambiguous status in international law. The U.N. High Commissioner for Human Rights has said that, when used for the purpose of breaking a prisoner's will, sleep deprivation “may in some cases constitute torture.”

Senior U.S. officials defended these tactics, with one official maintaining that, “If you don't violate someone's human rights some of the time, you probably aren't doing your job.” He elaborated that the U.S. shouldn't be “promoting a view of zero tolerance on this. That was the whole problem for a long time with the CIA.”

Virtually confirming the new U.S. policy of using torture in its interrogation techniques, Cofer Black, former head of the CIA Counterterrorist Center, told a joint hearing of the House and Senate intelligence committees on Sept. 26, 2002, that there was a new “operational flexibility” in dealing with suspected terrorists. He said that "There was a before 9/11, and there was an after 9/11. After 9/11 the gloves come off."

In response to the Washington Post article, Human Rights Watch’s Kenneth Roth reminded the U.S. that “torture is always prohibited under any circumstances.” He also warned that, “U.S. officials who take part in torture, authorize it, or even close their eyes to it, can be prosecuted by courts anywhere in the world.” The rights organization also called on the administration to investigate and condemn allegations of torture and other cruel and inhuman treatment.

In response, a Defense Department lawyer said, “United States policy condemns torture,” but didn’t say whether the U.S. has a legal obligation to refrain from cruel, inhuman or degrading treatment.

Guantanamo to Abu Ghraib

The direct link between the shunning of the Geneva Conventions at Guantanamo Bay and the abuses at Abu Ghraib was made plain by Ashcroft’s testimony on June 8. Appearing before the Senate Judiciary Committee, Ashcroft used many of the same arguments that were made in early 2002 in deflecting criticism of Guantanamo Bay.

“The only people who are accorded the protections of the Geneva Convention,” Ashcroft said, are “those nations that are high-contracting parties to the convention. Al-Qaeda is not a high-contracting party to the Geneva Convention. It repudiates the rules of war. It operates against civilians, it doesn't wear uniforms, and it has never sought to be a high-contracting party. The Geneva Conventions do not apply as it relates to al-Qaeda. And they are not intended to apply as it relates to al-Qaeda.”

Not only did Ashcroft ignore the fact that those tortured in Iraq had nothing to do with al-Qaeda, but the argument itself has been thoroughly debunked by experts on the Geneva Conventions. Central to the counter-argument is the fact that to determine a prisoner’s status under the Convention, a “competent tribunal” must be established.

In the case of Guantanamo, a tribunal never was established. Rather, Bush unilaterally decided which prisoners would qualify for protections, and which protections they would receive. Plus, those technicalities cited by Ashcroft do not pertain to the use of torture which is fully and unambiguously prohibited in numerous treaties.

The Supreme Court is now considering the Padilla case and Bush’s claim of his singular right to imprison even American citizens while denying them their constitutional rights.

Justice Ruth Bader-Ginsburg questioned White House lawyers about whether Bush also could authorize torture. She asked, “If the law is what the Executive says it is, whatever is necessary and appropriate in the Executive's judgment, that's the resolution you gave us that Congress passed and leaves it up to the Executive, unchecked by the Judiciary. So, what is it that would be a check against torture?”

Government lawyer Paul Clement answered, “Well, first of all there are treaty obligations, but the primary check is that just as in every other war, if a U.S. military person commits a war crime, by creating some atrocity on a harmless detained enemy combatant or a prisoner of war, that violates our own conception of what's a war crime and we'll put that U.S. Military officer on trial in a Court Martial.”

So, in other words, the primary – and perhaps only – check on torture and human rights violations is the Executive Branch’s “own conception” of what does or does not constitute a war crime. Again the decision is entirely Bush’s. If he is personally disgusted by behavior like the photographed sexual abuse at Abu Ghraib, individual soldiers can be prosecuted. If he is not troubled, they won’t be.

It is also now known that in at least one case, Secretary Rumsfeld ordered intelligence officers to “take the gloves off” in questioning a U.S. citizen, the so-called “American Taliban” John Walker Lindh. Following the order, Lindh was stripped naked and tied to a stretcher in questioning by CIA operatives. [See http://news.independent.co.uk/world/americas/story.jsp?story=529921]

While some would argue that tough interrogation methods were justified in pursuit of intelligence on Osama bin Laden and other al-Qaeda leaders, the fact that the Secretary of Defense potentially approved the torture of an American citizen should alert other citizens that the Bush administration might choose to expand the practice.

Defining Terrorism

This possibility is particularly disconcerting considering how broadly “terrorism” is defined in the USA Patriot Act, and how protesters of government policy have in recent years been equated implicitly and explicitly with terrorists. In the Patriot Act, terrorism is defined in such a way that a wide range of legitimate political protest and civil disobedience could fall under it.

Section 802 of the Patriot Act defines domestic terrorism as activities that “appear to be intended to influence policy of a government by intimidation or coercion” 

Groups such as the American Civil Liberties Union and the American Bar Association have objected to this definition. The prohibition against seeking to influence government policy by “intimidation” is so vague and so subjective that virtually any act of civil disobedience or confrontational protest could fit under the definition, the critics say.

There is also quite a bit of anecdotal evidence that law enforcement is increasingly looking at demonstrators as the equivalents of terrorists. Prior to an October demonstration against the Iraq War in Washington, D.C., the FBI instructed local law enforcement agencies to report suspicious protesters to the FBI’s counterterrorism squad. In anticipation of the protests against the G8 economic summit in Georgia, there were unusual security measures taken, with the military augmenting local law enforcement in dealing with protests. Authorities brought in 2,000 body bags and a refrigerated lorry to take away potential corpses.

With the hardened stance toward political dissent, and the legal arguments on torture, there is reason for concern over what the future holds if the present course is maintained.

For his part, George W. Bush has tried to draw comparisons between the Second World War and the global war against terrorism. Bush, who keeps a bust of Winston Churchill in the Oval Office and who has referred to Iraqi suicide bombers as “kamikazes,” kicked off this theme-building project in his speech to the Air Force Academy on June 2. In that speech, he said, “Like the Second World War, our present conflict began with a ruthless, surprise attack on the United States. ... This is the greatest challenge of our time, the storm in which we fly.”

Secretary of State Colin Powell elaborated on the theme, telling France 3 Television, “I think we can compare the fight against the Nazis and the fight against communism with the fight that we are now all engaged in against terrorism. And Iraq is a part of that battlefield.”

National security adviser Condoleezza Rice offered some of her own comparisons, claiming that George W. Bush will go down in history as a world leader on par with Franklin Delano Roosevelt and Winston Churchill. “When you think of statesmen,” Rice said, “you think of people who seized historic opportunities to change the world for the better, people like Roosevelt, people like Churchill, and people like Truman, who understood the challenges of communism. And this president has been an agent of change for the better -- historic change for the better.”

However, Europeans, especially those for whom memories of Nazism and the barbarity of World War II are still fresh, might object to the comparisons with the heroes of World War II. Indeed, the Bush administration's debate about loosening the rules on torture is more likely to bring back memories of Adolf Hitler than Roosevelt and Churchill, since it was Hitler who is blamed for reviving the practice in Europe.

In Europe, the use of torture to extract confessions had been condemned since the Enlightenment when rationality and the rule of law replaced the divine right of kings. The practice was resurrected in Germany when the Nazis rose to power and legitimized “third degree” interrogations. The Nazis used torture extensively, particularly in the nations Germany had invaded and occupied, in order to obtain information about anti-occupation resistance activities.

At the end of World War II, as the atrocities of war were reviewed, torture was perceived to be an aberration that must not be allowed to recur. In the official commentary on the text of the Geneva Conventions, the International Committee of the Red Cross wrote that the motivation was to prevent “acts which world public opinion finds particularly revolting – acts which were committed frequently in the Second World War.” [See The Treatment of Prisoners Under International Law, by Nigel Rodley]

These sentiments led directly to the international conventions prohibiting torture, conventions that the Bush administration now claims do not apply to the United States.

By re-legitimizing torture, declaring international law irrelevant and rewriting the rules to justify whatever actions Bush sees fit, the administration is leading the United States down a dark and dangerous road. The next – and possibly last – checkpoint for changing direction will be the Nov. 2 elections, which now loom not only as a choice between the presidential candidates but as a referendum on whether the American people will endorse Bush's concept of an all-powerful Executive and follow him toward what looks like a very different form of government.

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