Switching the constitution on and off

The notion that “torture is basically subject to perception” as CIA counter-terrorism lawyer Jonathan Friedman said and added, “If the detainee dies, you’re doing it wrong,” represents the very moral and legal backsliding of an administration that believes it has the power to switch the constitution on and off at will. Guantánamo, Abu Ghraib and extraordinary rendition have become the symbols violations of domestic and internation protections of civil liberties and common decency by a too-powerful executive branch of government. Congress and the courts are too weak to check the power of the executive. The result of this abuse of power is not greater protection for the American people but less

Gary Younge has this assessment in the Guardian:

… The point of these detentions has never been to see justice done, but rather to provide a teachable moment about the lengths and depths the American state would go to pursue its perceived interests in the war on terror. It was to find a place in which America could operate above and beyond not only international law but its own - a display of unfettered power not merely indifferent to, but openly contemptuous of, global and local norms.

It is a brutal allegory in which Guantánamo is not the exception but the rule: a grotesque exemplar of the Bush administration's reflexive and opportunistic response to the terrorist attacks of 9/11, from the bombing of Iraq to the phone-tapping of its own citizens. Like Abu Ghraib and the "black sites" of rendition, the violations that have taken place there are systemic and systematic. Like the broader war on terror, they have been characterised by criminality and ineptitude. The camp has not hosted a single trial, and only 19 of the remaining 270 detainees have been charged.

"To protest in the name of morality against 'excesses' or 'abuses' is an error that hints at active complicity," wrote Simone de Beauvoir, referring to French atrocities in Algeria. "There are no 'abuses' or 'excesses' here, simply an all-pervasive system."

Detain, bomb, invade, torture and spy now - ask questions later. Such have been the impulses of the Bush years. But "now" inherits a past and bequeaths a legacy. "Later" keeps arriving with answers for which a largely quiescent if not compliant American public appears to have little stomach. A power grab for the state; a black hole for legality; a free rein for the military; a vacuum for democracy. Such have been the hallmarks of the Bush years.

And like so much else in these twilight months of this administration, the warped logic that underpins Guantánamo is unravelling at great pace. The recent supreme court ruling that inmates have the same rights to habeas corpus protection as "enemy combatants" held on US soil has shed its final fig leaf. Meanwhile, last week's congressional testimony and the dissenting voices of some of the inmate's military lawyers bear witness to how low the administration has stooped and how high the decision-making has gone. "The laws and constitution are designed to survive, and remain in force, in extraordinary times," Justice Anthony Kennedy wrote for the supreme court majority. Maybe so. But political cultures are not. They are feathers for every wind that blows, vulnerable to demagogue and democrat alike.

"To hold that the political branches may switch the constitution on or off at will would lead to a regime in which they, not this court, 'say what the law is'," Kennedy continued. But that is precisely what has been happening these past seven years.

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Over the past four years at least five military prosecutors have resigned from their jobs or from their cases at Guantánamo because they felt their integrity would otherwise be compromised, citing tainted evidence obtained under torture and political interference. As De Beauvoir's quote indicates, there is nothing uniquely American about any of this. The US programme was modelled on Soviet techniques and has been made possible by the cooperation of other nations, including Britain, that have colluded with rendition. According to the New York Times, the former director of the CIA's clandestine service described Poland, where a large amount of the torturing took place, as "the 51st state".

Put the British in Ireland or the Belgians in the Congo and you get the same result. Gordon Brown's bid for 42-day detention without charge fits the mould perfectly. Occupations abroad ineluctably dovetail with the erosion of liberties at home. The only difference seems to be that, on paper at least, the US has set itself higher standards - a fact that exhausts its one truly renewable resource: innocence. "How on earth did we get to the point where a US government lawyer would say that ... torture is subject to perception?" asked Carl Levin, the chairman of the Senate armed services committee, last week. How indeed?

You may read his entire essay here.