Progressive Viewpoints

We are living in a defining moment that tests our democracry

Dear Friend -

Although the Bush administration is doing it's best to disguise it, I believe that we are living in times that are as important as defining moments as those that tested our democracy in the past such as the McCarthy intimidations, Nixon crimes and, on a more positive note, the civil rights movement.  But this is the one for these times.

If you haven't read it, I strongly encourage you to stop what you are doing and take the time to read Al Gore's speech in its entirety since it got so little coverage in the media, and to pass it along, to make your voice heard and to take action:

Time to Update the Geneva Convention (NYT)

(NYT - Unpublished Op-Ed contribution)

Recent revelations show that the Bush administration has developed legal opinions which carefully define classes of persons and places (Guantanamo is essentially a sovereignty-free zone) outside the reach of the Geneva Conventions, as well as asserting a novel claim of ultimate authority (that the command-in-chief can do whatever he wants without restraint).

Although the administration claims the conclusions of such opinions were merely advisory, if the administration always intended to fully abide by the Conventions, then there would be no need to marshal dozens of lawyers from across multiple departments of the Bush administration to develop the legal framework for allowing exceptions to the Conventions.  After all, the US government isn't a debating society or a law school assigning students to defend theoretical extreme positions for the sake of seeing how they develop the argument!  Likewise, with the “war on terror” on-going, it would seem that there are far better places to utilize our resources than on hypotheticals.

Ashcroft's highly-parsed replies to congress that the administration hasn't broken any laws must also be read in the context of the lawyer that he is: the administration finding was that certain people weren't subject to the laws and treaties, therefore, in their reasoning, if they tortured any of those people it wasn't illegal, so no laws were broken!  It doesn't answer the question of whether torture has been used, nor does it address the larger issue of the tone these analyses set from the top down that one can and should search for plausible excusability.

Well, we can wring our hands and try to shame the administration into respecting the spirit of these laws and treaties, but that will not be effective as that is not in the Bush team personality and is contrary to a decade of work by Cheney, Rumsfeld, Wolfstein et al to define a US presidency which can operate free of external oversight and have unfettered use of US force.

Fighting these legalisms is not only time-consuming, but extremely difficult as prisoners in Guantanamo Bay, for example, do not have access to US courts in order to make their case and the rest of us have trouble establishing that we have legal standing to sue on their behalf.

So who can work this through the court system we've been accustomed to using to resolve these issues?

This presents an excellent opportunity for a new president to convene an international assembly to update the Geneva convention in order to provide guidelines about the treatment of detainees, enemy combatants, etc., to define what happens when those who are captured by a signatory nation are transfered to other places and what, if any, changes to their treatment that allows, and to close the Guantanamo Bay loophole.

This new convening should address head-on the issues of how to treat insurgencies, terrorists and related perpetrators of violence in loosely organized groups, whether state-directed or independent movements, whether in uniform or not, as well as spies, and so forth.

Dealing with the claim that as Command-in-Chief, the President can do whatever he wants without oversight or restraint, and thus could ignore the Conventions anyway, clearly remains a key subject if the Conventions are to have any meaning.  It is, however a subject for US constitutional resolution and thus a different venue to balance such a claim with the constitutional right that "Congress shall have the power … To make Rules for the Government and Regulation of the land and naval Forces.”

Re: Lawyers Decided Bans on Torture Didn't Bind Bush (NYT 06/08/2004)

You reported on the Bush adminstration secret legal analyses that the president has unfettered powers as command-in-chief to ignore US law and treaties.

This cannot be regarded, as the administration would like us to, as merely an intellectual excersize, as just one of many pieces of advice. It is the conclusion reached after comprehensive effort involving the president's counsel. They are de-emphsizing it today in the absence of a need to invoke it publicly, but the groundwork is laid to do it whenever they want.

Before it is too late, congress must assert its constitutional right that "The Congress shall have Power ... To make Rules for the Government and Regulation of the land and naval Forces."

The constitution expected congress to pass laws to limit what the military may do, even in time of war. There is nothing in the constitution that restricts that clause.

Re: Bush Didn't Order Any Breach of Torture Laws, Ashcroft Says (NYT)

(NYT - Unpublished)

Let us be clear about what Ashcroft didn't say: He did not say that the Bush administration didn't torture people; he only said that they didn't break the laws (as narrowly and creatively interpreted). We can only reach the appalling conclusion that the Bush administration does torture people if they can find a legal loophole allowing them to, such as creating new categories of enemies and new categories of places, such as the apparently sovereignty-free Guantanamo. The Bush credo appears to be: Who cares about the spirit of the law and treaties? If we can invent a technical legal loophole, we'll use it!

They further are inventing excuses for avoiding oversight by the congress or courts : it's our internal administration business ... and besides, the commander-in-chief can do anything in the name of war!. How can anyone appeal that has been "disappeared" into Guantanamo or redefined into a new class of person without rights? What legal standing could they show to bring a case even if they could communicate with the outside world?

How very Soviet Mr. George W. Bush.

We can only hope that The New York Times will dig beneath the rhetorical obfuscation the administration uses and expose the truth.