The last veto threat: anti-torture

Veto talk gave the president more power to torture than if the ban had never even been discussed

Before the current one concerning the Dubai ports deal (see previous post), what was the one other major veto threat issued by President Bush? Back in October, what brought it on was,

The [US Senate's] 90-to-9 vote to ban ``cruel, inhuman or degrading treatment or punishment'' of anyone in U.S. government custody was one of the sharpest political rebukes in Washington of a system under which abuses occurred in Iraq and Afghanistan and at the Guantánamo naval base in Cuba.

Seems that the only time the Bush veto pen comes out is when there is some kind of challenge to the radical statist power the president wishes to reserve for himself beyond all reach of law.

Despite what was reported just before last Christmas--that the president relented on the McCain anti-torture amendment, backing the torture ban because the ``McCain proposal had veto-proof support''--Mr. Bush got his way.

Here is how Alfred McCoy described the failure of the McCain anti-torture effort in the highly-rcommended Democracy Now! interview from last Friday:

Most Americans think that it's over, that in last year, December 2005, the U.S. Congress passed the Detainee Treatment Act 2005, which in the language of Senator McCain, who was the original author of that amendment to the defense appropriation, the author of that act, it bars all inhumane or cruel treatment, and most people think that's it, that it's over, okay? Actually, what has happened is the Bush administration fought that amendment tooth and nail; they fought it with loopholes. Vice President Cheney went to Senator McCain and asked for a specific exemption for the C.I.A. McCain refused. The National Security Advisor went to McCain and asked for certain kinds of exemptions for the C.I.A. He refused.

So then they started amending it. Basically what happened is, through the process, they introduced loopholes. Look, at the start of the war on terror, the Bush administration ordered torture. President Bush said right on September 11, 2001, when he addressed the nation, ``I don't care what the international lawyers say. We're going to kick some ass.''

Those were his words, and then it was up to his legal advisors in the White House and the Justice Department to translate his otherwise unlawful orders into legal directives, and they did it by crafting three very controversial legal principles. One, that the President, as Commander-in-Chief, could override laws and treaties. Two, that there was a possible defense for C.I.A. interrogators who engage in torture, and the defenses were of two kinds. First of all, they played around with the word ``severe,'' that torture is the infliction of severe pain. That's when Jay Bybee, who was Assistant Attorney General, wrote that memo in which he said, ```severe' means equivalent to organ failure,'' in other words, right up to the point of death.

The other thing was that they came up with the idea of intentionality. If a C.I.A. interrogator tortured, but the aim was information, not pain, then he could say that he was not guilty. The third principle, which was crafted by John Yoo, was Guantanamo is not part of the United States; it is exempt from the writ of U.S. courts. Now, in the process of ratifying--sorry, passing the McCain torture--the torture prohibition, McCain’s ban on inhumane treatment, the White House has cleverly twisted the legislation to re-establish these three key principles. In his signing statement on December 30, President Bush said ...

``I reserve the right, as Commander-in-Chief and as head of the unitary executive, to do what I need to do to defend America.''

Okay, that was the first thing. The next thing that happened is that McCain, as a compromise, inserted into the legislation a provision that if a C.I.A. operative engages in inhumane treatment or torture but believes that he or she was following a lawful order, then that's a defense. So they got the second principle, defense for C.I.A. torturers. The third principle was – is that the White House had Senator Lindsey Graham of South Carolina amend McCain’s amendment by inserting language into it, saying that for the purposes of this act, the U.S. Navy base at Guantanamo Bay is not on U.S. territory. . .

In other words, the veto threat acheived for President Bush policy that, from his point of view (desire to use torture), is better than if the McCain amendment had never been proposed.

See also here and here.