Crossings Magazine

Will Congress Subpoena President Bush?
by Lillie Binder

On Nov. 7, 2006, the people of the United States exercised their power to vote in a new, Democratic Congress. When the new team of legislators is sworn in on Jan. 3, 2007, they will be able to use their own power not only to write new laws, but also to subpoena the Bush administration on its policies. The Democrats will be able to replace the Republicans’ leaders of various Congressional committees, and in doing so will have the power in initiate investigations. With growing public disapproval of President Bush and his war policies (and those of his former Secretary of Defense, Donald Rumsfeld, who resigned under pressure two days after the midterm elections on Nov. 8), investigations by the Committee on Armed Services and the Committee of the Judiciary are likely to focus on possible war crimes.

Already, the United Nations (whose security council did not approve of the war in Iraq in the first place) has investigated and criticized the U.S. military’s reported use of improper interrogation and detention techniques. In a letter to Human Rights Watch in June 2006, the U.N. has called for the U.S. to “immediately abolish all secret detention facilities; ensure that all detainees at Guantanamo Bay are provided a fair opportunity to challenge the lawfulness of their detention; and hold accountable all persons – including contract employees and senior military officers – responsible for abuse and torture in Guantanamo, Afghanistan or Iraq.” In failing to do so, the U.S. had infringed upon many provisions of the U.N.’s Universal Declaration of Human Rights. This document prohibits “torture,” “cruel, inhuman or degrading treatment,” “arbitrary arrest, detention or exile,” and ensures “equal protection of the law,” “competent national tribunals,” and “a fair and public hearing.”

Various human rights groups within the U.S. have also protested against these interrogation practices, including the coalition group, “Detainee Abuse and Accountability (DAA) Project,” which includes Human Rights Watch, Human Rights First, and the Center for Human Rights and Global Justice at the New York University School of Law. The DAA has reviewed over 300 cases of mistreated prisoners in Iraq, Afghanistan, and Guantanamo Bay who wish to charge the federal government with war crimes and violations of international human rights conventions. The most often-cited violation is of Article Three of the Geneva Conventions of 1949, which covers the rights of prisoners of war. It prohibits various forms of humiliating and degrading practices, including mutilation and torture.

Unfortunately, many accusations of torture and corruption have been leveled at the U.S. military prison system in the past few years. Most infamously in 2003, pictures showing soldiers forced into extremely “humiliating and degrading” positions at the Abu Ghraib Iraqi prison leaked into the news media. Reports like these have continued throughout the years. Most recently in September, rumors swirled that the military has been using a type of mock-drowning torture called “waterboarding” and that Vice President Cheney did not disapprove of it. In a much buzzed and blogged about Washington, D.C. radio show interview with Scott Hennen, the deejay asked: “Would you agree a dunk in water is a no-brainer if it can save lives?” And Cheney replied: “It's a no-brainer for me, but for a while there, I was criticized as being the Vice President ‘for torture.’ We don't torture. That's not what we're involved in. We live up to our obligations in international treaties that we're party to and so forth…” Right, and so forth.

Although the Bush administration has developed this reputation for disregarding the rules out of its own self-interest, Congress also shoulders part of the blame. Congress took the positive step of passing the “McCain Amendment” of the Detainee Treatment Act of 2005, which stated that no prisoner “shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation.” However, Congress has taken a few steps backward as well. A month later in November, new legislation placed limits on prisoners’ rights again in Rep. Lindsey Graham’s “Graham Amendment.” This amendment took away the right of prisoners to protest their treatment and verdicts, exercising judicial review over their cases.

The U.S. Army Field Manual on Intelligence Interrogation that the McCain amendment authorized recommends psychological tactics exploiting the emotions, fears, and pride of the prisoners to extract information from them. The manual also states: "The psychological techniques and principles in this manual should neither be confused with, nor construed to be synonymous with, unauthorized techniques such as brainwashing, physical or mental torture, or any other form of mental coercion to include drugs that may induce lasting and permanent mental alteration and damage." This definition of torture is unclear, and so is the definition under the Geneva Conventions. As George W. Bush said while promoting the Military Commissions Act of 2006, “The problem is that these and other provisions of Common Article Three are vague and undefined, and each could be interpreted in different ways by American or foreign judges.”

The public does not know exactly what sort of tactics are being used, and the government does not know exactly what sort of tactics can be legally used in interrogations. This is the main issue that the new Congress needs to tackle. The definition of torture needs to be made clearer for both the military and the prisoners’ sake. For now, the tactics cannot be disclosed (for security and political reasons), so we do not know if the existing rules are being followed. If Congress established a committee to investigate these practices, it would surely help to enforce these rules. Those officials who break the rules should be punished and those who obey them should be promoted. Up to the level of the president himself, military officials should be subpoenaed.

In the most recent activity in Congress dealing with these issues, George W. Bush hastily drove a “Military Commissions Act of 2006” through in September (before his Senate and House expired in November). This law approved the use of military interrogations and tribunals that follow international and national guidelines for proper treatment of prisoners of war. When urging the legislators to pass it through, he vehemently defended his country’s military interrogation system, invoking vivid images of September 11 to drive home the danger he is still fighting in the war on terror. “With the Twin Towers and the Pentagon still smoldering, our country on edge, and a stream of intelligence coming in about potential new attacks, my administration faced immediate challenges… The security of our nation and the lives of our citizens depend on our ability to learn what these terrorists know.” He spoke of the evildoers that threatened his military men, saying "I'll never forget your face. I will kill you, your brothers, your mother, and sisters!"

However sensational, the president has a point. There are instances where it is important to detain suspected terrorists, and there are instances where these suspected terrorists may contain some important information. But as we fight this war on terror, we gain more enemies, and fuel the terrorists with more hatred each day. In order to salvage our reputation as peaceful, respectful, law-abiding, citizens of the world, we need to establish a reputation of treating others with the care and human rights they are entitled to through international treaties like the U.N. Human Rights Declaration and the Geneva Conventions. And if we are to continue spreading democracy in the places our army occupies, like Afghanistan and Iraq, we must act like a democracy ourselves, and use our system of checks and balances (such as congressional committees and investigations) to make sure we are following our own rules fairly. The government is not above the law.

REFERENCES:

Detainee Abuse and Accountability Project summary

http://hrw.org/reports/2006/ct0406/1.htm#_Toc133381851

Geneva Conventions of 1949

http://www.unhchr.ch/html/menu3/b/91.htm

Scott Hennen interviews Dick Cheney on radio (transcript)

http://www.areavoices.com/hottalk/?archive=2006-10

Text of “Graham Amendement of 2005”

http://jurist.law.pitt.edu/gazette/2005/11/graham-amendment-on-detainee-judicial.php

Text of “McCain Amendment of 2005”

http://www.phrusa.org/research/torture/mccain_text.html

Transcript of George W. Bush’s “Military Commissions Act of 2006”