The Torture Election

By Jonathan Schell
The Nation

Monday 13 November 2006 Issue

The Congressional campaign of 2006 slouches toward election day through a grotesque landscape of torture and excuses for torture, scabrous messages from a Congressman to young boys, a Congressional cover-up of the same, murder and countermurder every day in Iraq (a heart-stopping 655,000 Iraqis have died since the invasion, according to a Johns Hopkins study), and nuclear fallout from North Korea (of the political if not the literal kind).

The stakes, as President Bush likes to say-and on this point he is correct-could scarcely be higher. But they include one stake he never mentions: the future of constitutional government in the United States, which his presidency and his party have put in serious jeopardy. The old (lower case) republican system of checks and balances and popular liberties, you might say, is in danger of replacement by a new (upper case) Republican system of arbitrary one-party rule organized around an all-powerful presidency. That many-sided danger, of course, is the subject of this series of articles. It is simply impossible to know in advance when, in a great constitutional crisis, the decisive turning point-the irrevocable capsizing-might come. We are left wondering whether we are witnessing just one more swing of the familiar old American political "pendulum," bound by its own weight to swing back in the opposite direction, or whether this time the pendulum is about to fly off its hinge and land us with a crash in territory that we have never visited before. There are strong arguments on both sides of the question. Yet there can be little doubt that the election on November 7 will be an event of the first importance in the story. If, by handing one or both houses of Congress to the Democrats-something that current polls say is likely-the public breaks the Republican Party's current monopoly on government power, an important beachhead of resistance will have been gained. But if the public assents to the status quo-confirming and deepening the ratification of Republican one-party rule already conferred in 2002 and 2004 (we cannot count the election of 2000, since Vice President Al Gore won the popular vote that year), it will be hard to see where the path away from the precipice lies.

As the decision has neared, every important institution of the republican system-the Supreme Court, the presidency, the Congress, the press-has been swept into the crisis. Also critical is the President's bid to achieve global military dominance by the United States, presented to the public as a kind of colossal footnote to the war on terror. The interplay, enacted on the electoral stage, between the attempt at dominance abroad and one-party rule at home is probably the most important specific mechanism of the crisis. Its evolution so far has had many surprising twists, turns, sudden spurts forward and reversals; and some recent events, though each perhaps familiar in itself, reveal a striking new pattern. Of special note is a remarkable yearlong, step-by-step process of trial and error in which the Administration, far from concealing its abuses of power, including the torture of prisoners, wound up giving them top billing in its electoral strategy.

A Political Problem

For some time, the Republican Party has been aware that it has a political problem. All year, Bush has gotten unfavorable marks in the opinion polls on every issue but one-dealing with the terrorist threat. (In the most recent polls, even this measure has turned negative.) On everything else-for example, the state of the economy, healthcare, the environment, even "trust"-a majority or plurality of the public has consistently rated the Democrats higher. In such a situation the standard counsel of today's political technicians, whose unalloyed cynicism few scarcely bother even to notice anymore, is to attempt to "elevate" the single issue favorable to one's party at the expense of the other issues, thus "framing the election," or "controlling the agenda," as it is variously put. The aim is not to persuade the public that your party is right on any particular issue but to choose among many issues the one on which the election will turn. The technique is available mainly to the party in charge of the White House, possessor of a PR megaphone that all but drowns out opposition voices, leaving them to sputter in impotence or waste their energies battling on tilted rhetorical battlefields of the Administration's choosing.

As early as January White House chief strategist Karl Rove issued the template for the campaign to come in a speech to the Republican National Committee. "The United States," he said, "faces a ruthless enemy-and we need a Commander in Chief and a Congress who understand the nature of the threat and the gravity of the moment.... Unfortunately, the same cannot be said for many Democrats." (He should have said "fortunately," for he planned to use his accusation-amplified and distorted-to renew the Republicans' lease on power in the fall elections.) As evidence of the President's successes, he cited the Iraq War. He stated, "This past year, we have seen three successful elections in Iraq. The Iraqi Security Forces are increasing in size and capability. Iraq's economy is growing.... In the words of the Commander of the Multinational Corps in Iraq: '2005 has been a historic year in Iraq, and it marks the rebirth of an ancient nation.'" He added, "To retreat before victory has been won would be a reckless act-and this President will not allow it." And the Democrats? "We now hear a loud chorus of Democrats who want us to cut and run in Iraq." It was not the last time we would hear this expression.

The tactic was hardly new. As Rove noted in his speech, it had led to success in 2002 and 2004. But a new problem arose and grew more acute during the year. The public turned, slowly but decisively, against the Iraq War. In January, when Rove spoke, polls showed on average that some 50 percent thought the war was a "mistake." By midsummer the number was up to 54. The words of the Commander of the "Multinational" Corps in Iraq had not been persuasive to the American electorate. Civil war was breaking out in the country, and the "rebirth of an ancient nation" was drowning in blood. (In the most recent round of polls, approval of the war has sunk to 40 percent.) Nevertheless, as the campaign season began, the public's support for Bush's handling of terror generally was still at 55 percent. This was the political gold that had to be refined from the slag heaps of low poll numbers on other issues.

Fighting the Caliphate

Clearly, a tactical if not a strategic shift in the election plan was needed. The political riddle that now needed an answer was how to exploit the war on terror when its alleged main front, the war in Iraq, was rejected by the public as a mistake.

A first answer to the riddle was found: Define the general, global war on terror so sweepingly that the specific war in Iraq dwindled to just one front on the epic battlefield. Around Labor Day the Administration rolled out its new political line.

The centerpiece of the campaign was a series of speeches by Bush. Billed as stock-taking on the anniversary of the September 11 attacks, they were in fact campaign speeches. The most eye-popping one was given to the Military Officers Association September 5, the day after Labor Day, the traditional beginning of election campaigns. Too strange to be captured in soundbites (although many of these, too, were supplied and recycled in the media), much of the substance of the speech curiously eluded coverage. For one thing, Bush couldn't stop citing Osama bin Laden, devoting four paragraphs to direct quotations from him and another dozen to paraphrases and citations of his words. The result for listeners was a queer impression that one had stumbled into an Al Qaeda videotape statement that somehow was being read out by the President. One almost expected to see Ayman Al Zawahiri sitting cross-legged beside him. (And, in fact, a recently released GOP ad actually does show bin Laden making his threats.)

In effect, Bush took Osama's evaluation of his own powers at face value. In his words, "America and our coalition partners have made our choice. We're taking the words of the enemy seriously." Bin Laden was aiming, Bush said in his own voice, at a "radical empire," a "totalitarian nightmare." Then, quoting bin Laden, he intoned, "'The whole world is an open field for us.'" If the United States didn't stop them, the President said, again speaking in his own, concurring voice, Sunni extremists would "remake the entire Muslim world in their radical image." They would do it in four stages. First, they would "expel the Americans from Iraq"; second, "establish an Islamic authority...and support it until it achieves the level of caliphate"; third, "extend the jihad wave to the secular countries neighboring Iraq"; and, fourth, initiate "the clash with Israel." And that was not all: "This caliphate would be a totalitarian Islamic empire encompassing all current and former Muslim lands, stretching from Europe to North Africa, the Middle East and Southeast Asia."

But the Shiites were busy, too, in the President's portrait. The leader of Hezbollah, Sheik Hassan Nasrallah, made a cameo appearance with an anti-American speech, also amply quoted by Bush. Iran and its nuclear program were brought into the ranks of America's Shiite enemies by this route.

But could Al Qaeda and/or Hezbollah actually accomplish all-or even any-of this? There are a multitude of evils that might befall Iraq if American troops withdraw (and an equal or greater number if they stay), but no reputable Middle East scholar thinks the conquest of the country by Al Qaeda is one of them. Experts assess the current fighting strength of Al Qaeda at several thousand at most. The serious contenders for power in non-Kurdish Iraq are the Shiite majority and the Sunni minority. As for an Al Qaeda-led totalitarian caliphate stretching from Baghdad to Jakarta, the idea was so outlandish that for days after the speech it went almost undiscussed, pro or con. What is more, the Shiites and the Sunnis, blurred into one menace by the President, are historic rivals and, in Iraq right now, mortal enemies (with the United States weirdly fighting on the Shiite side). Would a globe-spanning Sunni "caliphate" have the bomb? Or would it be the rival, Shiite, Iranian empire? Or maybe both?

Bush supplied no factual material for answering these questions. Instead, he summoned the ghosts of Hitler and Lenin back onto the historical stage. Hadn't the world "ignored Hitler's words" and wound up with "millions in the gas chambers" and a "world aflame"? And hadn't the world overlooked the pronouncements of Lenin in Zurich, and let him "establish an empire" that "killed tens of millions and brought the world to the brink of thermonuclear war"? So it would be with Osama, who now implicitly was menacing the world not only with a multinational totalitarian empire, genocide and world war but also with a thermonuclear holocaust.

With these stakes on the table, who would bother to take notice of the deaths of a few thousand American soldiers or even some few hundreds of thousands of Iraqis killed in Iraq? Shortly, indeed, in a phrase that summed up the new strategy, Bush described that war as "just a comma" in history's grand sweep.

Such was the fare that the Bush Administration was offering as the election season began in September. The strategy had a historical pedigree that certainly was much on the minds of both parties. In 1972 Senator George McGovern had run against Richard Nixon on an anti-Vietnam War platform. At that time, too, a constitutional crisis was brewing-the one that turned into Watergate and Nixon's resignation of the presidency. The public agreed with McGovern about the war, yet returned Nixon to office in a landslide. It seemed that even as voters understood that the war at hand was a disaster, they didn't want to apply any lessons from the war to foreign policy as a whole. And so McGovern was successfully labeled "weak" and "soft"-a stain that the Democratic Party has tried to rub off for the past thirty-four years and still has not adequately dealt with. Indeed, calling Democrats weak and soft on this, that or the other thing became the stock in trade of Republicans for this entire period, including, of course, the 2002 and 2004 elections, and arguably was the chief reason for their successes.

Searching for a Rallying Point

Still, the unpopularity of the war in Iraq had left a gap in the formula that needed to be filled. For electoral purposes, the President's "caliphate" speech (he returned to the bizarre theme a few times in later statements, then dropped it) amounted to a framework without a content, a kind of splendid platter with no food on it. ("Stop the caliphate!" would make a bewildering bumper sticker.) Some specific rallying point for the campaign was needed, some concrete proposal related to the war on terror, but not to Iraq, on which Republicans would vote yea, the Democrats nay and the voters would side with the Republicans. Two candidates were found. One was the disclosure by the New York Times of the warrantless wiretapping of calls between Americans and foreigners, a program Bush had ordered in secret. This was in violation of the Foreign Intelligence Surveillance Act, passed by Congress in 1978, which set up a system requiring warrants for all such taps. Before the order's disclosure, Bush had flatly lied to the public about its existence. In April 2004 he had said, "Now, by the way, any time you hear the United States government talking about wiretap, it requires-a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution." But when his new program was revealed and he was caught out in his lie, Bush, instead of expressing contrition, went on the offensive, asserting that it was not his act but the Times's decision to reveal it that was "shameful" and announcing that he had not only ordered the warrantless wiretapping program but renewed the order some thirty times. The Administration's political calculation was that any public concern about his lying and secret lawbreaking would be trumped by its fear of terrorism. Karl Rove duly included a defense of the warrantless wiretapping in his election-year blueprint in January.

A pattern had been established. Actions taken in pursuit of the war on terror but in violation of the law would be exploited for political advantage.

The second and more significant candidate concerned the handling of detainees, including their abuse and torture. In the unfolding constitutional struggle, the Supreme Court, though containing a majority of Republican-appointed Justices, had struck out on an independent course in a series of decisions. In the case of Hamdi v. Rumsfeld, the Court ruled that the President had no right to designate someone an "enemy combatant" on his own authority but must accept the participation of courts in the matter. It was this decision that produced Sandra Day O'Connor's memorable declaration that "a state of war is not a blank check for the President." In Rasul v. Bush, the Court ruled that detainees at Guantánamo must be granted habeas corpus rights. Finally, in Hamdan v. Rumsfeld, the most important and sweeping of the decisions, the Court ruled that military tribunals that Bush had set up on his own, self-granted authority were unconstitutional. In arriving at this decision, the Court set forth a wholesale rejection of Bush's aggrandizement of his own powers. The Bush order had placed the detainees outside any existing framework of law, domestic or international. Now the Court ruled that he had no authority to set up the tribunals independent of Congress-thus restoring a traditional check on executive power. Second, it declared that, contrary to Administration claims, the rules for treatment of detainees contained in the Geneva Conventions applied to detainees in the war on terror. In other words, international law applied. Third, it ruled that "the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction," including the Uniform Code of Military Justice, which forbids torture as well as "cruel and unusual punishments." So domestic law applied too. It was by now well-known that in a program ordered by Bush, the CIA had used waterboarding and other tortures and abuses, all of which, though not mentioned specifically by the Court, now had presumably been forbidden by its decision.

When the Hamdan decision came down, many liberal hats were thrown in the air. But where liberals saw judicial rout, the White House again saw political opportunity. (Others, including David Brooks of the New York Times, agreed that the abuse issue could be used by the Republicans to gain advantage.) Now an extraordinary chapter in American politics began to unfold. According to the Supreme Court, the President had committed grossly unconstitutional acts. If anyone cared to notice, he had almost certainly committed impeachable offenses as well.

Constitutional rulings, not impeachments, are the business of the Supreme Court, but in the wake of its rulings, it was clear that the case that the President, even if judged by the strictest standards, has committed impeachable offenses was greatly strengthened. Articles of impeachment were drawn up against President Richard Nixon for illegal wiretapping and for lying to the public. Ordering torture and other abuses in secret, with self-given authority, would appear to fall even more clearly into the category of impeachable "high crimes and misdemeanors." The legality of a war based on false evidence of danger, though not addressed by the Court, must be considered another prime candidate. But impeachment is a political process par excellence, and the fact is that a will to impeach President Bush, though increasing among the public, is still very weak in Congress, where impeachment must take place. Certainly one of the prime reasons for this is that the less drastic remedy for abuses, an election, is at hand. And one of the peculiarities of the present moment is that abuses for which impeachment of the President is the logical response are now to be faced by the oblique method of an election of members of Congress.

Yet once again, Bush, rather than expressing regret, or even defending himself, went on the attack. In obedience to the strategy of drawing a distinction between Republicans and Democrats on a non-Iraq issue relating to terrorism, he sought to make just these abuses, including the practice of torture, the core of his party's appeal in the Congressional election. If successful, it would be as if when President Nixon had been accused of illegal wiretapping, lying and obstruction of justice, he had, instead of being subjected to articles of impeachment and thrown out of office, beaten the charge by muscling Congress into legislative complicity with his high crimes and then gone on to lead his party to victory in the next Congressional elections. (In actuality, of course, the Democrats won in a landslide in 1974.)

Torture as Politics

Bush placed the detainee issue, with its de facto defense of torture, at the center of his attack. The White House hastened to send a bill to Congress before its adjournment so that the necessary distinction between the parties' votes could be dramatized in the campaign. In a press conference, the President pinpointed the heart of the issue. Whatever Congress did, it must protect "the program." The program was the CIA program he had ordered in which forms of torture, such as waterboarding, had been practiced. ("Unfortunately," he said, "the recent Supreme Court decision put the future of this program in question. That's another reason I went to Congress. We need this legislation to save it.")

If anyone doubted that Bush was standing up for the practice of torture (though of course without embracing the word "torture"), those doubts should have been put to rest by the following infamous exchange between him and NBC journalist Matt Lauer.

Lauer: But it's been reported that with Khalid Shaikh Mohammed, he was what they call waterboarded.
Bush: Um, I'm not going to talk about techniques that we use on people. One reason why is because we don't want the enemy to adjust. The American people need to know we are using techniques within the law to protect 'em.

The President of the United States, given a chance to repudiate the practice of a form of torture, refused to comment. Apparently, the need to keep suspects confused regarding the degradations that awaited them was more important than the American people's right to know what outrages were being committed in their name.

But were the White House political strategists right? Would de facto advocacy of torture be an election-year winner? A debate followed. A phalanx of retired military leaders came out in favor of continued observance of the Geneva Conventions and against the abuses. So did Colin Powell. Unexpectedly, a trio of gallant-seeming Republican senators-Lindsey Graham, John Warner and John McCain-put up a fight against the White House. That resistance temporarily spoiled the political strategy, for a wedge between Republicans and Democrats had been wanted, not a wedge between two Republican camps. But as all the world knows, the trio folded, and the bills that passed in Congress, with the support of a sizable minority of Democrats in both houses (apparently fearful that Rove's electoral strategy would succeed), gave the White House almost all it wanted. Habeas corpus was denied to detainees; no appeal by prisoners to federal courts would be allowed. (Senator Arlen Specter said the denial of habeas corpus set back the rule of law "900 years," to the time before the signing of the Magna Carta. Then he voted for the bill.) No citation of the Geneva Conventions as a defense against abuses would be permitted. Violations of the law committed by officials, including the President, would be forgiven retroactively.

No sooner had this torture-baited electoral trap been set by the Congressional vote than it was sprung. The Republican Party stood up as one to accuse the Democrats of being soft on terrorists. Speaker of the House Denny Hastert charged that the Democrats were "in favor of more rights for terrorists," whom they wanted "coddled." (What the Democrats who voted for the bill were really soft on, really coddling, was the Bush Administration.) Republican House majority leader John Boehner found it "outrageous" that the Democrats "continue to oppose giving President Bush the tools he needs to protect our country." Soon Bush joined the chorus, charging that "five years after 9/11, Democrats offer nothing but criticism and obstruction and endless second-guessing." Then he once again sounded the familiar refrain that the Democrats were the "party of cut and run."

Acampaign fought out on this ground would at least have had the virtue of revolving around the questions that are actually the most important this year. For the torture question really does, in addition to its immense intrinsic importance, roll into one package many or most of the key features of the crisis of the Republic. There is the establishment of a globe-spanning system of secret offshore concentration camps, including those in "the program," serviced by CIA Gulfstream jets ferrying sedated, hogtied abductees from one place to another-say, from Bagram Air Base in Afghanistan to Guantánamo, or, as in one case, from Stockholm to Cairo. There was also the concentration of power in the executive, already mentioned. There was the abdication by Congress of its checking and balancing in obedience to Republican Party fiat, leaving the executive to do what it wanted unhampered or, when Congress was called on to act by the Supreme Court, passing compliant legislation. There was the many-sided assault on the rule of law, domestic and international. There was the assault on basic rights and the separation of powers in the name of the war on terror. There was the brutalization and the flouting of ordinary human decency by the highest officials, exemplified by the torture itself-and, to give just one other example, by the President's comments on the Geneva Conventions' prohibition on "outrages upon personal dignity." "It's very vague," he said in a mocking tone. "What does that mean, 'outrages upon human [sic] dignity'?"

In the form of the Congressional detainee bill, the crisis of the Republic thus did in fact move, just it should have, to the center of the election of 2006. But the opposition, still cowed by Rove's strategy, had scarcely dared to raise the issue. The malefactors had done so.

As it happened, however, at just the moment that this crucial debate was about to be joined (or might have been joined if the Democrats had been ready to take a stand), the media kaleidoscope twirled, and an item that Rove never wanted to see anywhere near the "agenda" flooded the media. This of course was the story of Congressman Mark Foley's salacious messages to House pages and the House Republican leadership's history of failure to stop the abuse. And then the kaleidoscope twirled again, and in a replacement of the trivial with the apocalyptic, North Korea's atomic test eclipsed Foley's follies. Everyone started saying that the President's voice had grown inaudible. For the time being, events had jostled the big megaphone from his hands.

By now, what is uppermost in the minds of the voters-as distinct from the news media-or what will be uppermost by election day, is hard to say. But let the record show that as the election season began, the leaders of the Republican Party, in charge of both the presidency and Congress, were trying to turn the election into a referendum on torture, which they favored. And let voters remember that record on November 7, when by pulling the right lever in the voting booth they can throw this party out of office.

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