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How Not to Ban Torture in Congress

The Bush legacy of legalized abuse and why the McCain ban won't work

| Wed Feb. 8, 2006 4:00 AM EST

Just before Christmas, two of the world's most venerable legislative bodies engaged in erudite, impassioned debate over what the right balance should be between the imperatives of national security and international prohibitions on torture. They arrived at starkly divergent conclusions that reveal the depth of damage the war on terror is doing to this country's civil liberties.

On December 7, the House of Lords, reviewing cases in which a dozen Muslim militants were to be deported, spoke with moral clarity on the issue of torture, branding it "an unqualified evil" which should have no place in the proud, thousand-year tradition of British justice. Just a week later, the U.S. Senate amended the Defense Appropriations Bill to prohibit the "abuse" of detainees in American custody, including the many Muslims at our Guantanamo prison, but did so on the purely pragmatic, almost amoral grounds that it "leads to bad intelligence." Under pressure from the White House, the senators also loaded this legislation with loopholes that may soon allow coerced testimony -- extracted through torture -- into American courts for the first time in two centuries.

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This disconcerting contrast is but one sign that, under the Bush administration, the United States is moving to publicly legitimate the use of torture, even to the point of twisting this congressional ban on inhumane interrogation in ways that could ultimately legalize such acts. And following their President's lead, the American people seem to be developing a tolerance, even a taste, for torture.

This country may, in fact, be undergoing an historic shift with profound implications for America's international standing. It seems to be moving from the wide-ranging but highly secretive tortures wielded by the Central Intelligence Agency during the Cold War decades to an open, even proud use of coercive interrogation as a formal weapon in the arsenal of American power, acceptable both to U.S. courts and the American people.

In the early years of its war on terror, the administration maintained the long-standing yet informal executive policy of ordering clandestine CIA torture in times of crisis. Minutes after his public address to a shaken nation on September 11, 2001, President Bush barked to his aides, "I don't care what the international lawyers say, we are going to kick some ass."

As administration lawyers translated these words into formal directives, they carefully cloaked this otherwise unlawful demand in three controversial constitutional arguments -- that the president's commander-in-chief powers allow him to override all laws and treaties; that U.S. anti-torture laws can be stretched to provide a winning legal defense for any CIA interrogator accused of torture; and most tenuously of all, that the detainee prison at Guantanamo Bay in Cuba was not on American territory and so was beyond the writ of U.S. courts.

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