Political Views,

Brecher and Smith on the Imperial Presidency
By MWC Editor At Large Tom Engelhardt 

Typically, when faced with a problem, the first thing Bush administration officials do is reach for their dictionaries to pretzel and torture words into whatever shape best suits them. Then they declare themselves simply to be following precedent (which turns out, of course, to be whatever they've wanted to do all along). In this way, in the famous torture memos that flowed from the White House Counsel's office, the Justice Department, and the Pentagon, the meaning of "torture" was at one point in 2002 redefined into near nonexistence ("must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death") and then made dependent on the mind and intent of the torturer. As a result, "torture" became, by definition, a policy we didn't engage in even as we waterboarded suspects in our global network of CIA-run (or borrowed) secret prisons. In a similar fashion, this administration has managed to redefine aggressive war, kidnapping, the President's powers to detain both citizens and non-citizens, assassination, the meaning of various international agreements and American laws, and the Constitution itself. Then, definitions in hand, administration officials have marched defiantly into the world, armed to the teeth, and done exactly what they pleased.

Just this week, Secretary of State Condoleezza Rice headed for a Europe whose various publics (and media) are up in arms over CIA behavior -- the use of airports, military bases, and former compounds or prisons of the old Soviet Gulag to facilitate illegal detentions, kidnappings (called "extraordinary renditions"), and the torture and abuse of various terror suspects. Some of these suspects have been held for long periods and abused in numerous ways, only to be found innocent of any criminal acts whatsoever. This has, it seems, become common enough to gain a name of its own among CIA cognoscenti -- "erroneous renditions." Such high-handed actions, undertaken in a spirit of impunity, are today making their way to various European courts and bodies of inquiry.

Our Secretary of State, on the eve of her departure, finally offered an administration response to this and, for instance, to the recent revelation that the CIA had sent 437 flights (assumedly on various rendition tasks) through German airspace since 2001 -- some certainly carrying captured or kidnapped "ghost detainees" to secret prisons elsewhere on Earth. She essentially said: "Trust us…"; offered implicit threats to release information on what European officials may have known about our illegal activities to their angry publics ("It is up to those governments and their citizens to decide if they wish to work with us to prevent terrorist attacks against their own country or other countries, and decide how much sensitive information they can make public. They have a sovereign right to make that choice."); and emphasized that this administration always acts within the law and, as our President insists, simply does not torture -- even while our Vice President and other top officials lobby vigorously against Senator John McCain's anti-torture amendment to the Defense Appropriations Bill reiterating that it is the law of the land not to offer those in our custody "cruel, inhuman, or degrading treatment or punishment."

In a classic case of we're-innocent-and-anyway-they-did-it, Rice on departure admitted to the use of "rendition" and then painted it as a time-tested technique of practically all governments on the planet. "Torture," she added, "is a term that is defined by law. We rely on our law to govern our operations. The United States does not permit, tolerate, or condone torture under any circumstances… The United States does not transport, and has not transported, detainees from one country to another for the purpose of interrogation using torture. The United States does not use the airspace or the airports of any country for the purpose of transporting a detainee to a country where he or she will be tortured." These are, of course, outright lies -- except according to the Bush administration definitions of such things -- and typical of the behavior of its officials.

In fact, those officials seem to carry handy-dandy dictionaries in their heads -- and so regularly redefine reality on the run to suit their immediate needs. How about, to take a recent lighthearted example, our Secretary of Defense Donald ("I stand for 8-10 hours a day. Why is standing limited to 4 hours?") Rumsfeld, who is a walking redefinition of just about anything. According to his own account, he had a revelation worthy of the editor of the Oxford English Dictionary over Thanksgiving weekend and sent a memo around the Pentagon suggesting the eradication of the Iraqi "insurgency" by wiping out the I-word itself. Urging journalists to "consult their dictionaries," the SecDef told them: "Over the weekend, I thought to myself, 'You know, that [term "insurgent"] gives them a greater legitimacy than they seem to merit… It was an epiphany." Instead of the label "insurgents," he suggested, why not use "enemies of the legitimate Iraqi government" or ELIG?

Behind such verbal shenanigans, as Jeremy Brecher and Brendan Smith make clear below, lies a deeply serious attempt to pull our government fully into the shadows, to make it a black hole into which vast amounts of information and power of every sort will flow, and out of which nothing is to come but Bush definitions of reality. This is chilling indeed. Brecher and Smith (along with co-editor Jill Cutler) have produced an indispensable paperback, In the Name of Democracy, American War Crimes in Iraq and Beyond, which collects a chilling set of documents from the frontlines of administration illegality and offers striking essays about the lengths to which this administration has been willing to go and the degree to which we are living under a criminal regime. Tom

War Crimes Made Easy

How the Bush Administration Legalized Intelligence Deceptions, Assassinations, and Aggressive War
By Jeremy Brecher and Brendan Smith

How has the Bush administration gotten away with such apparently illegal acts as hiding intelligence reports from Congress, creating secret prisons, establishing death squads, kidnapping people and spiriting them across national borders, and planning unprovoked wars? Part of the answer lies in the administration's deliberate effort, initiated even before September 11, 2001, to tear down any existing legal and institutional means for preventing, exposing, or punishing violations of national and international law by American officials.

Back in 2002, Adriel Bettleheim wrote in the Congressional Quarterly that Vice President Dick Cheney "considers it the responsibility of the current administration to reclaim those lost powers for the institution of the presidency." Indeed, the Bush administration has tried to remove all conceivable restrictions on the "imperial presidency," setting its sights in particular on dismantling the Freedom of Information Act, the Intelligence Oversight Act, and the War Powers Resolution. Restoring limits on the power of the executive branch to conceal information, tell (and hide) lies, make war at its own discretion, or kidnap, torture, and kill without interference from Congress, the courts, and the public will be crucial tasks, if future Abu Ghraibs are to be prevented.

The Freedom of Information Act provides a good example of the constraints Cheney aimed to remove. Essentially a sunshine law passed by Congress in 1966, the FOIA requires that government agencies disclose their records upon written request. The Act provides nine "exemptions" to the public's right of access, but in the Clinton years Attorney General Janet Reno advised agencies that information should be released as long as it did "no foreseeable harm."

Shortly after the 9/11 attacks, Attorney General John Ashcroft issued a sweeping memorandum which interpreted out of existence much of the FOIA, discouraging government agencies from releasing any information that could conceivably be withheld. ("Any discretionary decision by your agency to disclose information protected under the FOIA should be made only after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosure of the information.") Department and agency heads who decided to withhold records were "assured that the Department of Justice will defend your decisions" unless they lacked a sound legal basis -- as determined by the administration itself.

Ashcroft's memo advocated broad interpretation of the exemptions, particularly Exemption 5 which protected agency and interagency memos. Subsequent communications recommended that government agencies withholding requested information cite as well Exemption 2, regarding agency personnel rules and practices, and Exemption 4, regarding proprietary interests.

A recent study by the Coalition of Journalists for Open Government comparing the handling of FOIA requests in 2000 and 2004 found that Exemption 2 was cited three times more often in 2004; exemption 5, almost twice as frequently; and Exemption 4, 68% more often.

More important than the rising number of exemptions has been the kind of information restricted. By far the greatest part of what the public has so far learned about prisoner abuse, torture, and other criminal acts at Abu Ghraib, Guantanamo, and elsewhere by government and military officials resulted from FOIA requests that were first denied by government agencies, and only then ordered fulfilled by the courts. The same goes for evidence that such criminal actions were encouraged by high government officials -- witness the FBI emails from Guantanamo, released only by order of the courts, indicating that abusive interrogation techniques had been authorized by "an Executive order signed by President Bush."

Right now the Bush administration is trying to further restrict the use of the FOIA. The pending defense and intelligence authorization bills, for instance, include language that would empower the director of the Defense Intelligence Agency (DIA) to place its "operational files" completely outside the purview of the FOIA. This would stop the ACLU and other human rights organizations from continuing to use FOIA requests to extract crucial hidden documents from the administration and so expose abuses like those at Abu Ghraib and Guantanamo. The National Security Archive, a research institute at George Washington University that collects and publishes documents acquired through the FOIA, calls the legislation the "Abu Ghraib Protection Act."

What Should Congress Know and When Should It Know It?

A second example of the Bush administration's efforts to "reclaim" the "lost powers" of the presidency concerns congressional intelligence oversight. In the wake of the Vietnam War, a Senate Select Committee headed by Senator Frank Church conducted the most extensive investigation ever made of U.S. intelligence operations, revealing, among other things, a series of previously secret CIA plots to assassinate foreign leaders and overthrow foreign governments.

In response to these revelations, Congress passed the Intelligence Oversight Act of 1980. That Act concentrated the power of Congress to oversee American intelligence operations in the House and Senate intelligence committees. It also required intelligence agency heads to keep the oversight committees "fully and currently informed" not just of their ongoing activities but of "any significant anticipated intelligence activity." Initially, Congress succeeded in performing "serious and nonpartisan oversight," though partisan bickering later reduced its effectiveness, according to Kevin Whitelaw and David E. Kaplan in U.S. News and World Report. In the late 1990s, intelligence committee members and staffs were nonetheless receiving more than 1,200 briefings and reviewing more than 2,200 reports from the CIA annually.

Shortly after 9/11, George Bush officially informed the CIA and other agencies concerned with national security that "[t]he only Members of Congress whom you or your expressly designated officers may brief regarding classified or sensitive law enforcement information" are "the Speaker of the House, the House Minority Leader, the Senate Majority and Minority Leaders, and the Chairs and Ranking Members of the Intelligence Committees in the House and the Senate."

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