A Disastrous Course
The recently published conclusions in last April’s National Intelligence Estimate indicate the need for a change of course.
Bush Administration tactics in the war on terror – including the detainment policies exposed at Abu Ghraib and in more recent revelations – have strengthened the cause of the terrorists.
Retroactive changes in the War Crimes Act, rushed through Congress on the eve of recess for the election, threaten to set this disastrous course beyond correction.
The White House has ended our complete and unqualified compliance with Common Article Three. It has decriminalized “humiliating and degrading treatment,” which will be subject to Administrative orders.
The Act still criminalizes “cruel and inhuman treatment.” But this is now defined identically with “torture,” except that “severe” will be changed to “serious” suffering.
Since we have never used torture, the new definition will impose no significant restrictions. What falls short of the criminal definition will be subject to Administrative orders just as humiliating and degrading treatment will be.
It is said that the President’s orders will be published in the Federal Register. But while his “interpretations” of the Geneva Conventions will be so published, there is no requirement that his “orders” be published.
The President would be determining what is prohibited as a war crime and what is not prohibited. And he would be doing so without Congressional oversight.
Further, the Federal Courts would be prohibited from hearing any habeas corpus complaint. The Courts would be prohibited from hearing any case invoking the Geneva Conventions.
Thus would be established in hard law the prerogative claimed by the President in his “signing statement” on the Detainee Treatment Act of 2005.
And this change in the War Crimes Act would be made retroactive to November 26, 1997.
Where the Detainee Treatment Act offered a defense to interrogators who thought they were acting lawfully, the law now says that they actually were acting lawfully.
No one in the President’s detention and interrogation program could be prosecuted for War Crimes. Within his parameters, the program would operate with impunity around the globe.
This exercise of unaccountable power will increase rather than diminish the motive for terrorism. As in Iraq, we cannot capture and eliminate terrorists faster than we create them.
Our success in the “war on terrorism” depends upon our
moral authority, which is here being sacrificed upon the altar of
executive power. We call upon the new Congress to chart a new course.
Do not take us down this disastrous path.