Mr. Bush is in a desperate spot: the war in Iraq is a disaster, bin Laden can't be found dead or alive, according to the latest polls only 39 percent of Americans approve of the way Mr. Bush is leading this county, and according to the New York Times, the latest National Intelligence Estimate reports that the United States is probably less safe from terrorism now than it was before Sept. 11, 2001.
Interestingly enough, the 39 percent approval rating was the same number that President Clinton had before the Democrats were booted out of congress in 1994.
So, Republican members of Congress this week are going to make one final push to help their diminished re-election hopes. One of the important debates will be whether or not detainees should be allowed habeas corpus and how to interpret Article 3 of the Geneva Conventions which prohibit torture.
First, through a writ of habeas corpus, a detainee is supposed to be able to seek relief from unlawful imprisonment by petitioning the court to review whether or not he is being lawfully detained. According to the Christian Science Monitor there are about 460 detainees currently housed at Guantanamo Bay Detention Center, many of whom have been held for more than four years. Also, just last week the Guantanamo 14 arrived, supposedly the worst of the worst, after being kept for years in secret CIA prisons.
Post-9/11, the White House suspended habeas corpus for certain non-citizens suspected of having a connection to terrorism. These detainees can be held indefinitely, without being charged, without knowing why they are being held, without access to counsel and without access to the courts.
The White House probably fears that the courts would be overburdened and that national security might be compromised if detainees permitted to see the evidence against them, and present their case in court.
Many in Congress disagree, including the Chairman of the Senate Judiciary Committee, Sen. Arlen Specter, R-Pa., who is scheduled to hold a hearing on the merits of denying habeas corpus to detainees.
Secondly, Article 3 of the Geneva Conventions provides that all combatants who are out of the fight "shall in all circumstances be treated humanely, including prohibition of outrages upon personal dignity, in particular humiliating and degrading treatment."
The debate before Congress is what power the president of the United States should have to interpret Article 3 and define torture.
The president endorses legislation that prohibits "grave breaches" of the Geneva Conventions but leaves to the White House to decide by executive order which techniques are not "grave breaches," and, thus permitted. Some examples of arguably borderline interrogation methods used against detainees by the United States, as uncovered by an ABC investigation in November, include: the belly slap, a hard, open-handed slap to the stomach that causes pain but no internal injury; forcing prisoners to stand for more than 40 hours with hands cuffed and feet shackled to the floor; dousing a prisoner with cold water as he stands naked in a cell kept near 50 degrees; and water boarding, a technique that produces a sensation of drowning.
The St. Petersburg Times in Florida reported last week that "Water boarding is so terrifying that military tribunals created after World War II considered it a crime." In fact, according to this article, "Some of the Japanese who used water treatment and other forms of torture on Allied prisoners were executed."
Under the compromise reached last week between leading Republicans and the president, these techniques are likely to continue, as Mr. Bush vowed to only accept a bill that allowed the Central Intelligence Agency to continue to interrogate major terrorism suspects. The major compromise, if it holds up, seems to be that the president must publish in the Federal Register which techniques do not raise to the level of "grave breaches."
Though torture has its merits in revealing information to stop further terrorist attacks, the reality is that torture seldom has the impact on revealing the truth that justifies its use. Most recently, Canadian Maher Arar, as reported in a Toronto newspaper, spent 10 months in a Syrian jail before being cleared of any connection to terrorism. He told the Toronto newspaper that he would have confessed to anything to stop the torture.
If we go down the road that Mr. Bush suggests, we had better be prepared to accept the consequences. The world is going to be further polarized against the United States, and keeping the moral high ground in the eyes of our allies, if not lost already, is just one more challenge our generation is going to have to face.
Jason S. Ebin ([email protected]) is a third-year law student.
