Adopting Bush’s Positions By Noam Chomsky

An argument can be made that implementation of the CIA’s “torture paradigm” never violated the 1984 Torture Convention, at least as Washington interpreted it. McCoy points out that the highly sophisticated CIA paradigm developed at enormous cost in the 1950s and 1960s, based on the “KGB’s most devastating torture technique,” kept primarily to mental torture, not crude physical torture, which was considered less effective in turning people into pliant vegetables.

McCoy writes that the Reagan administration then carefully revised the International Torture Convention “with four detailed diplomatic ‘reservations’ focused on just one word in the convention’s 26-printed pages,” the word “mental.” He continues: “These intricately-constructed diplomatic reservations re-defined torture, as interpreted by the United States, to exclude sensory deprivation and self-inflicted pain — the very techniques the CIA had refined at such great cost.”

When Clinton sent the UN Convention to Congress for ratification in 1994, he included the Reagan reservations. The president and Congress therefore exempted the core of the CIA torture paradigm from the U.S. interpretation of the Torture Convention; and those reservations, McCoy observes, were “reproduced verbatim in domestic legislation enacted to give legal force to the UN Convention.” That is the “political land mine” that “detonated with such phenomenal force” in the Abu Ghraib scandal and in the shameful Military Commissions Act that was passed with bipartisan support in 2006.

Bush, of course, went beyond his predecessors in authorizing prima facieviolations of international law, and several of his extremist innovations were struck down by the Courts. While Obama, like Bush, eloquently affirms our unwavering commitment to international law, he seems intent on substantially reinstating the extremist Bush measures. In the important case of Boumediene v. Bush in June 2008, the Supreme Court rejected as unconstitutional the Bush administration claim that prisoners in Guantanamo are not entitled to the right of habeas corpus.

Salon.com columnist Glenn Greenwald reviews the aftermath. Seeking to “preserve the power to abduct people from around the world” and imprison them without due process, the Bush administration decided to ship them to the U.S. prison at Bagram Air Base in Afghanistan, treating “the Boumediene ruling, grounded in our most basic constitutional guarantees, as though it was some sort of a silly game — fly your abducted prisoners to Guantanamo and they have constitutional rights, but fly them instead to Bagram and you can disappear them forever with no judicial process.”

Obama adopted the Bush position, “filing a brief in federal court that, in two sentences, declared that it embraced the most extremist Bush theory on this issue,” arguing that prisoners flown to Bagram from anywhere in the world (in the case in question, Yemenis and Tunisians captured in Thailand and the United Arab Emirates) “can be imprisoned indefinitely with no rights of any kind — as long as they are kept in Bagram rather than Guantanamo.”

In March, however, a Bush-appointed federal judge “rejected the Bush/Obama position and held that the rationale of Boumediene applies every bit as much to Bagram as it does to Guantanamo.” The Obama administration announced that it would appeal the ruling, thus placing Obama’s Department of Justice, Greenwald concludes, “squarely to the Right of an extremely conservative, pro-executive-power, Bush 43-appointed judge on issues of executive power and due-process-less detentions,” in radical violation of Obama’s campaign promises and earlier stands.

The case of Rasul v. Rumsfeld appears to be following a similar trajectory. The plaintiffs charged that Rumsfeld and other high officials were responsible for their torture in Guantanamo, where they were sent after being captured by Uzbeki warlord Rashid Dostum. The plaintiffs claimed that they had traveled to Afghanistan to offer humanitarian relief. Dostum, a notorious thug, was then a leader of the Northern Alliance, the Afghan faction supported by Russia, Iran, India, Turkey, and the Central Asian states, and the U.S. as it attacked Afghanistan in October 2001.

Dostum turned them over to U.S. custody, allegedly for bounty money. The Bush administration sought to have the case dismissed. Recently, Obama’s Department of Justice filed a brief supporting the Bush position that government officials are not liable for torture and other violations of due process, on the grounds that the Courts had not yet clearly established the rights that prisoners enjoy.

It is also reported that the Obama administration intends to revive military commissions, one of the more severe violations of the rule of law during the Bush years. There is a reason, according to William Glaberson of the New York Times: “Officials who work on the Guantanamo issue say administration lawyers have become concerned that they would face significant obstacles to trying some terrorism suspects in federal courts. Judges might make it difficult to prosecute detainees who were subjected to brutal treatment or for prosecutors to use hearsay evidence gathered by intelligence agencies.” A serious flaw in the criminal justice system, it appears.