In late September, while most of the nation was busy watching the last few games of the baseball season, the Congress of the United States passed a bill intended to establish military tribunals to try “detainees” held in the war on terror. The president, checked by the Supreme court after holding hundreds of detainees for the last five years without charges, without any evidence of their having committed a crime against the United States, or any due process or legal representation, is now to be empowered to establish these tribunals to get on with the business of finding them guilty. (Did they ever have even the slightest chance of being found innocent?) Further, the bill attempts to reconcile the “techniques” used to interrogate detainees with the language of Common Article III of the Geneva Conventions, which holds forth against cruel and humiliating treatment, or rather, it skirts around this language by leaving the matter for the President to decide.

Consider what one of the greatest champions for democracy of the 20th Century had to say about that: "The power of the Executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him the judgment of his peers, is in the highest degree odious and is the foundation of all totalitarian government whether Nazi or Communist." - Winston Churchill, Nov. 21, 1943

Amerika has been undergoing a strange and steady metamorphosis these last five years, and now, with congress legislating and empowering our very own military tribunals to deal with terror suspects, with detention camps now operational on US soil, with the walls going up all along our borders, that metamorphosis has taken yet another dark evolution.

Anyone who does not yet know the background of this latest debate must be brain dead or wholly disinterested in things such as constitutionally guaranteed civil liberties. By way of reminder, it all started in a place called “Abu Ghuraib,” Saddam’s favorite torture facility where he tormented his opponents with things like razor wire, excrement baths, electro-shock treatment and good old fashioned baton beatings. When the US began to make captures in its Iraq operation, and some of these detainees were suspected of terrorist activity, some public relations genius in the Coalition Provisional Authority had a disturbing brainstorm, and selected Abu Ghuraib as the perfect place to send these captives for a little “interrogation.”  We have seen just the barest tip of the iceberg of what resulted, about twelve of several thousand photos that managed to find their way from those dark, blood-stained corridors where the men who puff their chests with pride over their toughness on terror cast a slur upon the honor and dignity of not only our armed forces, but our nation as a whole.

The CIA showed up with a special interrogation team, and started showing the world just what we were capable of, the same dirty, nasty, despicable treatment of our enemies as they might mete out to us—Geneva Conventions be damned. So while the “evildoers” kidnapped journalists, truck drivers and UN workers, filming them for propaganda before cutting off their heads, the US got busy stripping their own suspected bad guys naked before snarling guard dogs, tying them down with women’s panties on their faces, stacking them up in lewd homosexual pyramids, and turning ham fisted corporals loose on them in appalling beatings that led to many deaths. Then they bagged them up and mugged for the cameras with that good all American “thumbs up” as they leered over the bruised and bloodied faces of the men they had tortured to death. I’ll say that again: tortured to death.  But now they get a pass for all that murderous and reprehensible misconduct . The Military Commission Act of 2006, passing 65-34 on 9/28/2006 has whitewashed all that dark insanity over so that the “interrogators,” and those who authorized this torture, cannot be prosecuted under US or international law.

The mere fact that these men were captured by “our boys” seemed to be enough to convict them of absolute guilt. They were subjected to these atrocious, brutal and humiliating acts by the people who claimed they had come to fight for freedom, human dignity and the rule of law. Not one of these detainees was legally accused, provided legal counsel, confronted with evidence of their activities as a terrorist, convicted by trial or ever legally found guilty by any body serving justice. It was enough that “our boys” merely rounded them up and brought them in, by the thousands. That alone would sweep away every law concerning the rights and treatment of the accused in our own constitution, and every accord agreed upon by all the nations of the earth in the Geneva Conventions. And then, after the first photos were published before the eyes of the world, after we saw Lindy holding the leash on her naked Iraqi captives, gesturing at their genitals with delight, standing them up with hangman’s hoods on a pedestal while the electrical wires were being attached—only then did our tough guy interrogators relent, with great reluctance, and start looking for legal cover. They have found it in the Military Commission Act.

To put on pretenses of false outrage and morality, they court martialed a few low ranking soldiers, and instead started the “rendition” program, where detainees would simply be flown off to hidden camps in other nations where things like laws, constitutionally guaranteed rights and basic human decency did not really matter—yet all the while we continued to show the world one salient fact, that they no longer mattered here either. There was no apology, no sense of regret or admission of wrongdoing. In fact, President Bush had the audacity to stand before us as say: “We do not torture,”  a statement that will stand as one of the great lies of his presidency.

The argument made then, and still made today by right wing news pundits, and even Senators and Congressmen, is that we have a responsibility to keep Americans safe, and that in order to do this we need certain “tools” in our torture toolbox—water boarding, (a kind of faux asphyxiation where the victim is subjected to the fear of drowning), humiliation, (the likes of which we have seen at Abu Ghuraib, and with a perverted sexual twist to it all), cruel treatment, (like alternation of heat and cold, endless loud and blaring noise ), threats to the victim’s wife, children and family members, sexual abuse, physical beatings, stress positions, and god only knows what else was done. And then the claim was made that the Geneva Conventions were simply too vague to be understood by any reasonable man.

Well, here is what Common Article 3 says about treatment of POWs, detainees and non-combatants.

“…the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”

So to the guys in the body bags, we assert there was no murder. And to the men in the very few photos that managed to reach us from those bleak halls, we say that article ( C ) is just too vague. And to the family members and wives we hauled in to threaten and loosen the tongues of our enemies, we say: “what hostages?” And now, only after the Supreme Court finally ruled that the Bush Administration treatment of detainees was unconstitutional, we finally get our hangman’s court—military tribunals will now rule on the fate of all persons rounded up in our anti-terror dragnets, and that could include you, yes American citizens are not exempted.

Here is what Senator Reid (D) plaintively argued on the Senate floor concerning this bill:

“Senators Specter and Leahy offered an amendment to restore the right to judicial review - that amendment was rejected. Senator Rockefeller offered an amendment to improve congressional oversight of CIA programs - that amendment was rejected. Senator Kennedy offered an amendment to clarify that inhumane interrogation tactics prohibited by the Army Field manual could not be used on Americans or on others - that amendment was rejected. And Senator Byrd offered an amendment to sunset military commissions so that Congress would simply be required to reconsider this far-reaching authority after five years of experience. Even that amendment was rejected. I strongly believe this legislation is unconstitutional.  It will almost certainly be struck down by the Supreme Court.  And when that happens, we'll be back here several years from now debating how to bring terrorists to justice.”

Did you fully understand that the Republicans refused to amend this bill to stop prohibited and inhumane interrogation tactics (read “torture”) from being used on American citizens! They want no judicial review, no congressional oversight, no sunset provision to see if this bill is working correctly—nothing to impede the single minded brutality of the tough guys out there who are determined to keep us all safe. And that bit about no restraints on interrogating American citizens? Just what country do these Republican senators pledge allegiance to? In short, they reserved the option to do to you what they have so brazenly done to the people of Iraq. Believe me, once you get rounded up in an anti-terror dragnet, you will find no protection under US law, which is slowly being dismantled, in one Republican sponsored tough guy terror bill after another.

I guess the definition of what constitutes cruel or humiliating treatment just escaped the anti-terror henchmen altogether while the US was over in Iraq liberating people and teaching them all about things like democracy. I might note that these Iraqi men, many who were tortured for months and then summarily released, were given treatment that most human beings of conscience would not mete out to a rabid, mongrel dog. Yet President Bush has the temerity to assert he just can’t figure our what cruel or humiliating means under Common Article 3. Perhaps he should have volunteered to endure the treatment he was so ready to sanction as a legitimate means of interrogation. Perhaps only by feeling the jets of cold water on his naked body, the gloved fists pounding his face, seeing the dogs snarling at his loins, and enduring a little time on the water board while the cameras run could enlighten him as to what “humiliating and degrading treatment” means. The simple application of the Golden Rule would have made this all very clear to him, even without having to endure these methods: “Do unto others as you would have them do unto you.” Yet Bush still asserts he can’t understand or interpret the language of the Geneva Conventions, and he clearly does not seem to have the conscience to restrain his henchmen interrogators from improper, lawless actions. Congress’ solution: Let President Bush decide what torture is. Just remove the lawlessness and get on with this dirty business of keeping America safe.

We can trust the president, can’t we? I seem to recall that he claimed he was a Christian. I seem to recall that the Christian conservatives had something to do with his election as well…something about morality, decency, values. Well here’s another little rule I once heard. “What you do to the least of these, you do to me.” Yes, and what they decide to do to the worst of the evildoers, they can also do to you, my fellow citizen. You see, the powers we confer upon our elected officials can be directed at us just as easily as they can be applied to foreign terror suspects. You can be named an “enemy combatant” at the president’s sole discretion, picked up, held incommunicado, with no charges brought against you, no evidence presented of any wrongdoing, and “interrogated.” And the government never makes a mistake, do they? I wonder when Mr. Bush might decide to assert that things like written or vocalized statements in opposition to his policies constitute an unlawful action against the United States Government? Might he decide that an article like this, an exercise of constitutionally protected free speech that is nonetheless critical of his policies, decisions and character, now constitutes a threat? That America must be protected from voices like mine, raised in opposition to these mindless and brutal policies?

Did you know that the government can now spy on you, investigate your bank records, phone records, internet records, and prohibit your banker, phone company or ISP from revealing that fact to you? So believe me, you’ll never know it was coming when the knock finally comes in the night—if they bother to knock at all. And these draconian measures are all for your safety, of course--which really translates to the safety and security of US corporations. When safety trumps liberty, America, as it was conceived as a new experiment on this earth , has died. And so something died in this country on the Senate floor the other day, as the Autumn closed in around us and the cold winds of winter augur more trouble and grief ahead.

Congress has chosen to give this man, the President, the “decider,” the following new powers to clear up all this torture and tribunal business:

- Permit the President to detain any person indefinitely without charges.

- Create special military tribunals with reduced standards of due process to decide the fate of detainees.

- Deny these detainees access to civil courts to legally challenge their detention or treatment.

- Utilize evidence against a detainee that is kept “secret” for security reasons.

- Utilize evidence obtained by coercion prior to 12/05.

- Utilize evidence seized without a lawful search warrant, even against a US citizen.

- Strike down the right to confront one’s accuser.

- Waive the age old writ of Habeas Corpus, which the Supreme Court has "recognized as “the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.”

- Circumvent the Geneva Convention's Common Article 3 in a neat and nifty way…

   By allowing the President to define what torture is!

Now Jefferson’s eloquent warning that “the law is often the tyrant’s will” has come hauntingly true. Instead of a strong chastisement and restriction of the President’s lawless actions, he is given a get out of jail free card by congress and excused from all his prior unconstitutional acts. With all the rights and defenses to individual freedom swept aside and ceded to these new military tribunals, all we are left with is indeed the arbitrary and lawless action of the state, and the tyrant’s will.  If you are detained on terrorism charges, it is these tribunals that will decide your fate, not the civil courts. Will we soon see a time when any opposition to these policies, written or verbal, is deemed “sympathizing with or providing support for terrorists?” After all, the president has made it very clear, if you are not with him, you are with the terrorists.

And now Mr. Bush shall decide what treatment, interrogation methods, or fun photo sessions will be considered “torture.” More directly, it will be the President who decides what treatment is not torture, and therefore not subject to the admonitions of the Geneva Conventions or other US law. He may therefore authorize anything he desires, and then stand before us with complete candor and repeat again: “we do not torture.” Because he said so. He has made it so! Over. Done. And to think we once worried about a President who quibbled over the definition of “is.”

And it gets worse. Denied the protections of US civil law, no accused person can claim the protection of Common Article 3 before these special military tribunals either. Now the interrogators need not worry whether they are doing something degrading or humiliating, because our poor accused terrorist detainee can’t invoke this protection in his defense! This gets at the strange notion, an echo of WWII, that distinguished between soldiers and non-combatants. If you put on a uniform, you were a soldier, and granted these humanitarian protections under the Geneva Conventions when taken prisoner. If you don’t wear a uniform, however, you can claim nothing. You are not a “soldier” so you forfeit your human rights, and when you get caught you are therefore not a Prisoner of War. Yet our government still wants to treat these fellows as “enemy combatants.” (I guess that means they are soldiers who weren’t wearing uniforms, so heck, it’s open season on them now boys! Strip them, rape them, beat them half to death and bring out the water boards! These guys weren’t in uniform!)

Was it a piece of tailored cloth, a Kevlar helmet with insignia that was protecting the humanity of these men from the enormous transgressions against dignity and common decency? I thought it was the honor, values and character of our nation that was protecting them from such treatment! I thought we were different, somehow more noble, possessed of some virtue enshrined by our laws and constitution. Silly me. I guess it was just that uniform after all. Word to the wise: if you ever manage to get wind of your name on a terror suspect list, be sure you slip into a camo shirt and trousers before they pick you up.

Can we all just grow up here and admit that the way in which we fight and conduct warfare has now decisively changed over the last half century? I recall that, during our own revolution against another King George, the British generals complained that the Americans, (rebels all) did not follow the established rules of war. At one time that meant you had to don a brightly colored uniform and stand in a line while shooting at one another while the boys played at the fife and drum. We don’t fight that way any  longer. Now we ride about in armored hulks, and spew depleted uranium rounds all over the countryside, irradiating the landscape that has been blackened and charred by napalm, cluster munitions, white phosphorous and the massive destruction of our stealth delivered 2000lb bombs. Now we fight fair.

But woe betide this evil enemy of ours. He doesn’t have any F-16, F-18, F-117, B-1s, B-2s or B-whatevers. He has no Abrams tanks or Bradley fighting vehicles. He has no self propelled guns, aircraft carriers, Aegis Cruisers, Seawolf subs. He fights dirty. He uses a single rifle, or perhaps an RPG, and by God, he’s out of uniform! He hides explosives, or even straps them on his own body, prepared to die to strike a blow against his perceived enemy. Boy, is he ever evil! Let’s blow up a few city blocks with Tomahawk cruise missiles, on the odd chance he might be hiding there. Never mind that fifty other “non-combatant” families were living there. It’s the bad guy’s fault for forgetting that uniform. Kill ‘em all and let god sort them out. Right? Well that is the sick and perverted mentality that often walks the narrow mental halls of those who claim they are “tough on terror” these days. We just saw it enacted again by Israel in their little 30-day war in Lebanon.

To those who have not yet realized that asymmetrical warfare is the way conflicts will be resolved from this time forward—grow up. Instead of finding a nifty way to nullify or bypass the clear language of the Geneva Conventions, we should have found a way of making certain they applied to this new breed of warrior we now face, the civilian insurgent, a guerilla fighter resisting our weapon enforced Americana. By making sure that we would apply these principles of fair and humane treatment even to the worst of our enemies, we would have stood so far above them on a moral plane that the world would have seen, without the slightest doubt, the truth and value of our ways versus theirs.  Now we have no claim to make whatsoever—and the world sees it just as clearly. They see our fear, and the ruthless nature of the men who now lead this government, and they hate us for the things we now do—for our lawless and inhumane actions, not for our freedoms. What have we shown them of freedom? That we are free to go where we will with our mechanized armies, remove governments, destroy what we wish, abduct whomever we choose, torture at our whim, murder, seize national assets as we desire, for as long as we desire…because the mighty United States of America is afraid of Osama bin Ladin.

A darkness and deep stain of shame has now fallen upon this nation. Just after the Republican controlled congress passed this awful legislation authorizing the military tribunals as the new arbiters of “justice” the senate also decided to put up “the wall”—700 miles of fencing to start the process of sealing off our borders.  Someone call France. Tell them we no longer need that statue they left in New York Harbor. Yes, and all those “huddled masses yearning to breathe free,  the wretched refuse of those teeming foreign shores,”  the word from the Senate today is: “Get lost.”

Am I exaggerating all this stuff for the sake of drama? It’s just this…In America a person used to be considered innocent until proven guilty, and a person picked up by authorities had the right to come before a judge and hear what charges were levied against him and why he should be detained, and there was once something called “due process of law” and the right to a speedy and public trial. And during that trial you once had the right to review and hear evidence collected by the prosecutor, and the right to cross-examine witnesses testifying against you, and once upon a time evidence obtained by unlawful means (as through torture or illegal search and seizure) was not admissible, and a jury of your peers would rule on your case, not secret judges, and even after conviction you once had the right to appeal to a higher court...but not in Amerika , not anymore. (I change but one little letter in the spelling, but what a profound difference it makes.) Each and every one of those rights have been struck down by the Military Commission Act of 2006, one little bill enacted by Congress on Sept, 28, 2006, a date future historians will certainly remember as a black day for the Rule of law and democracy.

So... I look at my country and see the camps being built, laws set aside and ignored, fear trumping reason, safety elevated above freedom, the military courts now in place, the walls going up…and we’re inside.

Article By: John Schettler - October 1, 2006

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