Here's a made-up headline from Fox News:
Breaking News...
Federal agents stormed MSNBC studios this evening arresting Keith Olbermann, the popular host of the left-wing news program 'Countdown.' Details are sketchy, but sources close to the case, speaking on the condition of anonymity, say that the NSA has intercepted emails suggesting a possible link between Olbermann and the terrorist organization, al Qaeda. Olbermann claims that he receives email from all over the world, and that he has no control over who sends it to him. White House spokesman, Tony Snow, refused to comment on the specifics of the case, but stated that the investigation is ongoing, and that the process is progressing consistent with Olbermann's constitutional rights.
It's a headline that could be real very soon, and it could be any one of you instead of Keith Olberman. But extraordinary claims require extraordinary proof, right? Read on, and you'll have a full dose of it.
The big headlines for the past week have been about the rift between the President and Senate Republicans. The Democratic leadership, the mainstream media, and even the blogging community, has accepted the story without any critical analysis whatsoever. That's a damn shame because this so-called rift isn't about the 'Torture' of Detainees. It is about the 'Torture' of 'American Citizens.'
Here are a few headlines:
WASHINGTON (Reuters) - The White House and Senate Republicans who revolted against the president's proposal on tough CIA interrogations of terrorism suspects said on Sunday a compromise was possible to heal a party rift over treatment of prisoners.
WASHINGTON Sep 17, 2006 (AP)-- The Bush administration and holdout GOP senators expressed confidence on Sunday they could reach a compromise on rules for CIA interrogations of suspected terrorists.
WASHINGTON, Sept. 17 -- The Bush administration and three prominent Republican senators opposing its effort to codify broad standards for terror-detainee treatment gave signs of seeking compromise today, as both sides face intense political pressures over their positions.
This is all a set-up. There is no rift between the President and Senate Republicans. There is no rift because there are no substantive differences between the legislation in play. It's all smoke and mirrors, and is intended to keep you from seeing what is really going on.
This is what the President is trying to sell you:
This debate is occurring because of the Supreme Court's ruling that said that we must conduct ourselves under the Common Article III of the Geneva Convention. And that Common Article III says that there will be no outrages upon human dignity. It's very vague. What does that mean, "outrages upon human dignity"? That's a statement that is wide open to interpretation. And what I'm proposing is that there be clarity in the law so that our professionals will have no doubt that that which they are doing is legal. You know, it's -- and so the piece of legislation I sent up there provides our professionals that which is needed to go forward.
This is what John McCain is trying to sell you:
Weakening the Geneva protections is not only unnecessary, but would set an example to other countries, with less respect for basic human rights that they could issue their own legislative reinterpretations.
This is from Section 6 of the President's legislation:
Satisfaction of Treaty Obligations
(a) IN GENERAL.-- Satisfaction of the prohibitions against cruel, inhuman, and degrading treatment set forth in Section 1003 of the Detainee Treatment Act of 2005 (title X of Public Law 109-148; 119 Stat. 2739; 42 USC 2000dd) shall fully satisfy United States obligations with respect to the standards for detention and treatment established by section 1 of common Article 3 of the Geneva Conventions, with the exceptions of the obligations imposed by subsections 1(b) and 1(d) of such Article.
This is from Section 8 of Senator McCain's legislation:
(a) IN GENERAL.-- Section 2241 of Title 18, United States Code, is amended--
(1)in subsection (c), by striking paragraph (3) and inserting the following new paragraph (3):
(3)which constitutes a grave breach of common Article 3 (as defined in subsection (d)) when committed in the context of and in association with an armed conflict not of an international character; and
(2)by adding at the end the following new subsection:
(d)COMMON ARTICLE 3 VIOLATIONS--
(1)GRAVE BREACH OF COMMON ARTICLE 3--
In subsection (c)(3), the term 'grave breach of common Article 3' means any conduct as follows:
(A) Torture-- The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coersion, or any reason based on discrimination of any kind.
(B) CRUEL, UNUSUAL, OR INHUMANE TREATMENT OR PUNISHMENT.-- The act of a person who subjects another person in the custody or under the physical control of the United States Government, regardless of nationality or physical location, to cruel, unusual, or inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States.
(2) DEFINITIONS.-- In the case of an offense under subsection (a) by reason of subsection (c)(3)--
(A) the term 'severe mental pain or suffering' shall be applied for purposes of paragraph (1)(A) in accordance with the meaning given in section 2340(2) of this title.
Both versions mention common 'Article 3 of the Geneva Conventions.' The only substantive difference between them is that the President's legislation references 'The Detainee Act of 2005,' and Senator McCain's legislation references 18 USC 2340(2). A closer examination shows that these differences are nothing but a red herring.
This is from Section 948r of the President's legislation:
(b) STATEMENTS OBTAINED BY TORTURE.-- A statement obtained by use of torture, as defined in 18 USC 2340, whether or not under color of law, shall not be admissible against the accused.
This is from Section 950v(b) of the President's legislation:
(11) TORTURE-- Any person who commits and act specifically intended to inflict severe physical or mental pain or suffering... shall be guilty of torture... 'Severe mental pain or suffering' has the meaning provided in 18 USC 2340(2).
Now you can see one of the common threads between the President's legislation and Senator McCain's legislation. Both define 'Torture' in terms of 18 USC 2340. There's no difference at all between the varied legislation on this point. It's all hype.
This is 18 USC 2340:
(1) "torture" means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2) "severe mental pain or suffering" means the prolonged mental harm caused by or resulting from--
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.
But you'll notice that Senator McCain's legislation makes an explicit distinction between 'Torture' and 'Inhumane Treatment.' 'Torture' is referenced in (A) and 'Inhumane Treatment' is referenced in (B). The President's legislation makes the same distinction, although implicitly:
Satisfaction of the prohibitions against cruel, inhuman, and degrading treatment set forth in Section 1003 of the Detainee Treatment Act of 2005...
This is Section 1003 of 'The Detainee Treatment Act of 2005':
SEC. 1003. PROHIBITION ON CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT OF PERSONS UNDER CUSTODY OR CONTROL OF THE UNITED STATES GOVERNMENT.
(a) In General- No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.
(b) Construction- Nothing in this section shall be construed to impose any geographical limitation on the applicability of the prohibition against cruel, inhuman, or degrading treatment or punishment under this section.
(c) Limitation on Supersedure- The provisions of this section shall not be superseded, except by a provision of law enacted after the date of the enactment of this Act which specifically repeals, modifies, or supersedes the provisions of this section.
(d) Cruel, Inhuman, or Degrading Treatment or Punishment Defined- In this section, the term `cruel, inhuman, or degrading treatment or punishment' means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.
The President's legislation with regard to 'Inhumane Treatment' references Section 1003 of 'The Detainee Treatment Act of 2005,' the standard for which is found in Subsection (d) which is:
The Fifth, Eight, and Fourteenth Amendments to the Constitution of the United States.
Senator McCain's legislation with regard to 'Inhumane Treatment' references Subsection (B), above, the standard for which is found in the same, which is:
The Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States.
Now you can see another common thread between the President's legislation and Senator McCain's legislation. Both define 'Inhumane Treatment' in terms of the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. There's no difference at all between the varied legislation on this point. It's all hype.
But why?
Why would the Republicans put so much effort into fostering the appearance of a debate? Why all the smoke and mirrors? They had to have known that such tactics would help them only marginally in the polls, at best. It wouldn't be worth the trouble. It's something else. They are hiding something.
The President's legislation defines an 'Unlawful Enemy Combatant' as:
Section 948a(7)
UNLAWFUL ENEMY COMBATANT.-- the term 'unlawful enemy combatant' means an individual determined by or under the authority of the President or the Secretary of Defense--
(A) to be a part of or affiliated with a force or organization-- including but not limited to al Qaeda, the Taliban, any internation terrorist organization, or associated forces-- engaged in hostilities against the United States or its co-belligerents in violation of the law of war;
(B) to have committed a hostile act in aid of such force or organization so engaged; or
(C) to have supported hostilities in aid of such a force or organization so engaged.
Senator McCain's legislation defines an 'Unlawful Enemy Combatant' as:
Section 948a(4)
UNLAWFUL ENEMY COMBATANT.-- The term 'unlawful enemy combatant' means an individual engaged in hostilities against the United States who is not a lawful enemy combatant.
There's no substantive difference between the President's legislation and Senator McCain's legislation on this point. There is nothing here to prevent american citizens from being classified as 'Unlawful Enemy Combatants' either. In fact, it's already happened.
This is from Hamdi vs Rumsfeld:
JUSTICE O'CONNOR announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, JUSTICE KENNEDY, and JUSTICE BREYER join.
At this difficult time in our Nation's history, we are called upon to consider the legality of the Government's detention of a United States citizen on United States soil as an "enemy combatant" and to address the process that is constitutionally owed to one who seeks to challenge his classification as such. The United States Court of Appeals for the Fourth Circuit held that petitioner's detention was legally authorized and that he was entitled to no further opportunity to challenge his enemy-combatant label. We now vacate and remand. We hold that although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.
Now you can see that it is legal to classify american citizens as 'Unlawful Enemy Combatants,' provided that they be given "meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker." This "meaningful opportunity" is contained in the 'Military Commissions Act of 2006," which is the very legislation that we've been discussing.
Here's a made-up headline from Fox News:
Breaking News...
Federal agents stormed MSNBC studios this evening arresting Keith Olbermann, the popular host of the left-wing news program 'Countdown.' Details are sketchy, but sources close to the case, speaking on the condition of anonymity, say that the NSA has intercepted emails suggesting a possible link between Olbermann and the terrorist organization, al Qaeda. Olbermann claims that he receives email from all over the world, and that he has no control over who sends it to him. White House spokesman, Tony Snow, refused to comment on the specifics of the case, but stated that the investigation is ongoing, and that the process is progressing consistent with Olbermann's constitutional rights.
Here's some made-up 'Classified' information:
Shortly after federal agents had taken Keith Olbermann into custody, he was turned over to the Department of Defense for interrogation.
As you've seen, the President's legislation and Senator McCain's legislation provide a prohibition against 'Torture' and 'Inhumane' treatment, as defined by 18 USC 2340 and the Fifth, Eighth, and Fourteenth Amendments to the Constitution to the United States. So we don't have to worry about harsh interrogation techniques like these:
1. The Attention Grab: The interrogator forcefully grabs the shirt front of the prisoner and shakes him.
2. Attention Slap: An open-handed slap aimed at causing pain and triggering fear.
3. The Belly Slap: A hard open-handed slap to the stomach. The aim is to cause pain, but not internal injury. Doctors consulted advised against using a punch, which could cause lasting internal damage.
4. Long Time Standing: This technique is described as among the most effective. Prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours. Exhaustion and sleep deprivation are effective in yielding confessions.
5. The Cold Cell: The prisoner is left to stand naked in a cell kept near 50 degrees. Throughout the time in the cell the prisoner is doused with cold water.
6. Water Boarding: The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner's face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt.
Do we?
You're damn right we do. The Attorney General's office has already interpreted the provisions of much of the legislation being discussed.
For example:
Under the language adopted by Congress in sections 2340-2340A, to constitute "torture,"
the conduct in question must have been "specifically intended to inflict severe physical or mental
pain or suffering." In the discussion that follows, we will separately consider each of the
principal components of this key phrase: (1) the meaning of "severe"; (2) the meaning of
"severe physical pain or suffering"; (3) the meaning of "severe mental pain or suffering"; and
(4) the meaning of "specifically intended
Pain is a complex, subjective, perceptual phenomenon with a number of dimensions--intensity,
quality, time course, impact, and personal meaning--that are uniquely experienced by each
individual and, thus, can only be assessed indirectly. Pain is a subjective experience and there is
no way to objectively quantify it. Consequently, assessment of a patient's pain depends on the
patient's overt communications, both verbal and behavioral. Given pain's complexity, one must
assess not only its somatic (sensory) component but also patients' moods, attitudes, coping efforts, resources, responses of family members, and the impact of pain on their lives.
Turning to the question of what constitutes "prolonged mental harm caused by or
resulting from" a predicate act, we believe that Congress intended this phrase to require mental
"harm" that is caused by or that results from a predicate act, and that has some lasting duration.
There is little guidance to draw upon in interpreting this phrase. Nevertheless, our
interpretation is consistent with the ordinary meaning of the statutory terms. First, the use of the
word "harm"--as opposed to simply repeating "pain or suffering"--suggests some mental
damage or injury. Ordinary dictionary definitions of "harm," such as "physical or mental
damage: injury," Webster's Third New International Dictionary at 1034 (emphasis added), or
"[p]hysical or psychological injury or damage," American Heritage Dictionary of the English
Language at 825 (emphasis added), support this interpretation. Second, to "prolong" means to
"lengthen in time" or to "extend in duration," or to "draw out," Webster's Third New
International Dictionary at 1815, further suggesting that to be "prolonged," the mental damage
must extend for some period of time. This damage need not be permanent, but it must continue
for a "prolonged" period of time.25 Finally, under section 2340(2), the "prolonged mental harm"
must be "caused by" or "resulting from" one of the enumerated predicate acts.
If an individual acted in good faith, and only after reasonable investigation establishing that his
conduct would not inflict severe physical or mental pain or suffering, it appears unlikely that he
would have the specific intent necessary to violate sections 2340-2340A. Such an individual
could be said neither consciously to desire the proscribed result
The manner in which the government has already interpreted the provisions permits any of the interrogation techniques mentioned above. So long as the interrogator acts in 'Good Faith' and concludes that his actions will not cause 'Prolonged Harm', it's all very much legal.
But our fictional Keith Olbermann still has his Fifth, Eighth, and Fourteenth Amendment protections, right? Of course he does. It was written into both the President's legislation and Senator McCain's legislation, as you've seen above. However, they are not the same rights that you and I enjoy.
The United States Supreme Court said:
The regulation is valid if it is reasonably related to legitimate penological interests. In our view, such a standard is necessary if prison administrators, and not the courts, are to make the difficult judgments concerning institutional operations. Subjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration. The rule would also distort the decisionmaking process, for every administrative judgment would be subject to the possibility that some court somewhere would conclude that it had a less restrictive way of solving the problem at hand. Courts inevitably would become the primary arbiters of what constitutes the best solution to every administrative problem, thereby unnecessarily perpetuat[ing] the involvement of the federal courts in affairs of prison administration.
You see that the real question would be whether or not there was a 'legitimate penological interest' supporting the treatment being challenged. The headlines of today are nothing but expressions of the legitimate interest in fighting the so-called 'War on Terror.'
The moral of the story is that things are not what they appear to be. I could continue point for point comparisons between the President's legislation and Senator McCain's legislation all day long, but I'll spare you. I think the point has been clearly made. I've also shown that the legislation can be applied to ordinary americans, at will. Should you be scared? Hell yes! Should you take it lying down? Hell no! Raise your voices my friends.