Not Quite Torture?

Unless It's Being Done To You

Remember back on June 29 when the Supreme Court made their decision in the case of Hamdan v. Rumsfeld? It was big news that the Supremes had decided the US government was illegally holding hundreds of prisoners without warrants while awaiting judgement by military tribunal. Here are some excerpts from SCOTUSblog about the decision:

"[T]he principal, powerfully stated themes emanating from the Court, which are (i) that the President's conduct is subject to the limitations of statute and treaty; and (ii) that Congress's enactments are best construed to require compliance with the international laws of armed conflict. Even more importantly for present purposes, the Court held that Common Article 3 of Geneva applies as a matter of treaty obligation to the conflict against Al Qaeda."

This last bit (the one about Common Article 3) is the sticky part from the point of view of the Bush administration, because it is the part that leaves them open to criminal prosecution under the War Crimes Act of 1996. The Bush crime family is trying to respond to the Hamdan decision in two ways. The first is pure bluff.

Knowing that the 'backwash' 30-something percent that still support them can't don't read the big words anyway, they're pretending that the Hamdan decision has only one component. The component they acknowledge is predictably the one that gives them the least trouble. Flagrantly misrepresenting the true facts of the case, they are pretending that it is just a legal flaw in the way Military Commissions were set up, and that this is something that can be remedied by an act of Congress. It can't, but the claim gives them a flimsy excuse to continue holding the detainees while they get this little problem fixed.

The other way they are trying to respond to Hamdan is even more insidious. Having failed in their hamfisted attempts to separate detainees from their legal rights (they're not covered - they're 'illegal combatants') they now are trying to separate themselves from their own legal culpablity. As this recent article in Slate details, they are now seeking legislation that will retroactively immunize government employees from prosecution under the War Crimes Act. And once again they are using false pretenses to further their agenda, specifically the claim that this proposed legislation only covers acts that are not quite torture, such as waterboarding.

Administration officials say that under Hamdan, CIA and military personnel could be prosecuted for violations of the act, presumably by U.S. attorneys in a future administration, and not merely by "rogue" prosecutors in the existing Justice Department. Attorney General Alberto Gonzales recently told Congress that [Common Article 3] terms like "inhuman" and "outrages upon personal dignity" are "inherently vague," and that there were "unacceptable" risks of spurious prosecutions under the War Crimes Act.

This is so disingenuous as to defy description. "The administration, in sum, is asking Congress to retroactively decriminalize the abuses we saw at Abu Ghraib." Why? Because, "In many cases, soldiers say that abusive practices were authorized up the chain of command, making military and even civilian officials potentially complicit." That's interesting. So this isn't about helping Pfc. Lynndie England get on with her life. So what are they trying to protect the bigwigs from? Here's a clue.

We now know that dozens of detainees have died in custody in Afghanistan and Iraq. In several cases, interrogators literally beat detainees to death.

No, that's not quite torture. That's murder.

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Cross-Posted to Friendly Neighbour