Congress, Kansas governor grandstanding against detainees

            Remember back in January when President Obama signed an executive order tasking his Attorney General and Secretary of Defense with finding a way to close the prison at Guantanamo Bay within a year?  And how Democrats in Congress applauded him for respecting the rule of law and restoring America’s reputation among civilized nations?  Well, that was until they realized that if Gitmo were to be closed, then the detainees there have to go…somewhere. 

         Other countries won’t take any unless we absorb some, and Congress has blocked Obama’s plan to try and/or release or confine prisoners in the U.S. until he has reassured them that Americans won’t have to worry about dangerous terrorists becoming crossing guards or working at the neighborhood grocery store, or whatever it is that Republicans are trying to spook the country into thinking will happen to these men. (Democrats, having been the party opposed to the Iraq war, torture, and indefinite/unlawful detentions, cannot afford to be accused of letting terrorists wander the streets, and consequently are siding with the Republicans on this issue.)

         Of course, all this is silly—there are countless rapists, serial killers, lunatics, and madmen locked up for life in prisons all over this country (one out of every hundred Americans is locked up); the administration was not planning on flying enemies of the U.S. here, unchaining them, giving them five dollars and some candy, and saying “have a nice life, Ahmed.”  These people were intended to be tried, convicted, and locked up for a long time. 

        A prime piece of real estate to lock up the “worst of the worst” would be the U.S. Disciplinary Barracks in Fort Leavenworth, Kansas, “the only maximum-security prison within the Department of Defense.”  From the military’s website:

“The special-housing unit is reserved for inmates who could be locked up 23 hours a day. Food is slid into cells through narrow slots, and a small window at the foot of each door lets the guards, known within the USDB as correctional specialists, chain inmates’ ankles before they’re escorted out for showers or fresh air.

Every time one of these inmates moves, two or three staff members are with them. The correctional specialists actually have more contact with maximum-security inmates than those who pose fewer risks.”

            Sounds safe enough, right?  Hell no, the governor of Kansas, Mark Parkinson, told NPR.  In an interview, he chased his tail in justifying why neither the military prison nor the maximum-security federal prison in his state was fit to house prisoners.

Q: Should some Guantanamo detainees be moved to Ft. Leavenworth?

A: We don’t believe so….if these prisoners are moved, they need to be sent to highly-secure prisons. The military prison at Ft. Leavenworth is not a highly-secure prison….

Q: Not highly secure?  But it’s a maximum-security facility, the only one within the Pentagon.

A: Well, it may meet some line-item definition of being a maximum-security prison, but in reality it is a dormitory-style facility…it’s a very open facility….

There’s some confusion between the federal U.S.  penitentiary in Leavenworth which is a highly-secure facility and the military facility at Ft. Leavenworth, which is not nearly secure enough to handle the Guantanamo Bay prisoners….

Q: What about putting them at the [federal] facility that you mentioned, which you seem to be saying is more secure?

A: Well, I think that would be unprecedented. Our federal penitentiaries are set up for U.S. prisoners and I think that the appropriate step to take would be to keep these within the confines of a military prison, and the prison that we have here in Kansas is simply not the right one.

Q: Governor, if not there, where do you think they should go? Whose back yard do you think they should land in?

A: Well, I certainly don’t have an inventory of what the highly-secure military prisons are in the United States but I would agree with the criteria that the president has set out, which is that there needs to be a very highly-secure area.  If that prison doesn’t exist, it would need to be built or Guantanamo Bay would simply need to be kept open.

            There you go.  The solution to closing Guantanamo is to move the prisoners to a maximum-security prison; but not a federal prison, because they’re not U.S. citizens.  And not to the only maximum-security military prison, because it’s not secure enough.  So, we either need to keep Guantanamo open, or build another Guantanamo in the United States.  But where should it be built?

            And the dance begins anew.

The Democratic Congress’s hypocrisy

            The downside to campaigning on idealism—promises of removing corruption, bringing transparency to government operations, respecting the rule of law, and ending wasteful spending—is that when those ideals inevitably prove unrealistic, politicians will look like hypocrites for breaking their promises.

            Case in point: the possibility of ending military tribunals at Guantanamo Bay and instead holding the trials in federal courtrooms within the United States is causing politicians to protest against terrorism suspects being held in their state or district.  The Democrats on the House Appropriations Committee suspended funding to transfer prisoners to the homeland, and the proposed Keep Terrorists Out of America Act (apparently all of the poor, tortured prisoners are now definitively and automatically terrorists) sets a high bar for allowing detainees to enter the U.S.

            Well, gee, Democrats, what were you expecting when Obama vowed to close Guantanamo?  Didn’t many Democrats argue that they doubted these detainees were the “worst of the worst” in rallying against torture practices and indefinite detentions?  And how can we expect our European allies to receive prisoners who are tried and acquitted when we won’t even let the trials proceed?  For goodness sake, the town of Hardin, Montana (population 3,300) offered to accept detainees, but the state’s Democratic senators said “Not In My Backyard.”

            I understand that it would spook and inconvenience constituents to have terrorism trials  held in cities and towns where extensive security precautions would have to be made and the media would have to be accommodated.  But the government and the voters have already stated their desire to see Guantanamo closed, and the only place to hold trials would be in the U.S.  If it must be done by military court as authorized by Congress, then so be it; but short of reopening Alcatraz to house these men, some states will have to try the accused for crimes against U.S. soldiers or the U.S. homeland, then house them if convicted in the U.S.

       As a second example of congressional backtracking, President Obama last week revealed 121 programs that he planned to cut from the federal budget to save $17 billion.  One would think that a line-by-line elimination of wasteful or ineffective programs would be welcome when many—if not all—lawmakers are uneasy over the large federal deficit.  However, it is certain that most of those cuts will be restored by Congress because representatives want to protect their own state and district interests.

       At one level, this is reasonable, both because lawmakers want to survive the next election cycle by preventing harm to their constituents and also because they are able to meet with people who are affected by these programs and gauge effectiveness on their own.  On the other hand, budget deficits can never be reduced if everything is deemed necessary and effective.  All of the campaign rhetoric about reigning in the wasteful spending of the Bush years will be for naught if representatives do not agree that each state and each district can find funding items that simply give too little bang for too much buck.

       Alas, it is much harder to follow through on promises if everyone agrees that it’s someone else’s responsibility to make sacrifices.  Last year’s vows to uphold the Constitution and halt the spiraling deficits will give way to next year’s reminders of having kept U.S. citizens safe from terrorists and preventing pet projects from having been eliminated.  Ideals are hard to uphold because a sensible plan on paper will become more complex and personalized when the realization sets in that actual people are impacted by policy decisions.  Congress must work with the president to determine a way in which any negative impact is shared evenly so that their political future will be secure and their campaign rhetoric will not be invalidated.

Rice on torture: “You’re wrong”

            Up until now, Dick Cheney, who had made every attempt to operate clandestinely and without oversight during his eight years as vice president, has been the leading defender in the media of the Bush administration’s legacy on enhanced interrogation techniques.  We needed to waterboard, he has said, because it kept the homeland safe after 9/11.  Furthermore, the Obama administration is not admitting that the information-gathering practices were effective and ultimately saved lives—so shame on them for portraying Bush officials as criminals.  (This coming from a man who shot someone in the face and was ready to start bombing Iraq before any link between Saddam Hussein and al Qaeda was even established.)

            Okay, Cheney is allowed to rant, even though strong majorities of the country think he is wrong.  But last week, another figure appeared to defend torture—and angrily at that.  The formerly-unflappable Secretary of State Condoleezza Rice took questions from Stanford University students in which she said “you’re wrong” about torture.

       In this clip, Rice is belligerent and defensive about policies which she ultimately claims she had no part in formulating.  Her rebuttal to torture critics amounts simply to saying, “if you were there,” you would have done exactly what the administration did.  And what the administration did authorize, in established legal doctrine, was not torture.  It was doing “anything you could that was legal” to prevent another terrorist attack.

       She chided her questioner for not knowing obscure facts about Guantanamo that proved that no wrongdoing occurred there—but a quick fact check shows that her assertions may have been a little off.  First, she claimed that the Organisation for Cooperation and Security in Europe called Guantanamo a “model medium-security prison.”  In fact, the Belgian man who made that statement did not represent the OCSE and also called the indefinite detention of the Guantanamo prisoners “mental torture.”

       Secondly, she said that the International Committee of the Red Cross “made no allegations” of torture during their inspection of the facilities.  If oner were to believe what the detainees said (and the ICRC does seem to), this is simply false.  According to a 2007 report, which states the following:

       The absence of scrutiny by any independent entity—including the ICRC—inevitably creates conditions conducive to excesses that would not otherwise be permitted.  Persons held in undisclosed detention are especially vulnerable to being subjected to ill-treatment.  Indeed, the allegations of the fourteen include descriptions of treatment and interrogation techniques—singly or in combination—that amounted to torture and/or cruel, inhuman or degrading treatment.

            Lastly, and most consequentially Rice claimed that waterboarding was not torture since it was authorized by the Justice Department. “The president instructed us that nothing we would do would be outside of our obligations, legal obligations, under the Convention Against torture….And so, by definition, if it was authorized by the president it did not violate our obligations under the Conventions Against Torture.”  Although the argument is basically a version of Nixon’s “When the President does it, that means it is not illegal” quip, the actual syllogism is a bit more complex.  Here is a diagram of what she is trying to convey:

            Now, her argument would be invalidated if the Justice Department’s authorization of enhanced interrogation techniques (EIT) was, in fact, against the Geneva Conventions and was therefore illegal.  To determine that, we would have to turn to someone whose job it is to examine matters of legality.  Fortunately, such a person—in the form of Susan J. Crawford, the judge in charge of convening military tribunals—has already weighed in on the matter.  Here is what she had to say:

“We tortured [Mohammed al-]Qahtani….His treatment met the legal definition of torture. And that’s why I did not refer the case” for prosecution.

            In reality, then, the treatment at Guantanamo authorized by the Justice Department was torture, meaning it was against the Geneva Conventions, making it illegal.  Now, I’m not pin pointing aspects of Rice’s answers that I think are technically inaccurate.  I don’t believe that, in an attempt to skirt standards of human decency, being technically correct in drawing the line between torture and not torture is a good stance to take.  After all, you could probably find someone to argue logically that segregation is a sound policy; that doesn’t make it right.

            All I am trying to say is what many writers and commentators have been saying ever since the release of the torture memos: we should not need to painstakingly devise methods of dealing with prisoners of war that inflict mental and physical pain even though some body of international law does not explicitly declare it to be torture.  Aside from the practical question of its efficacy, we have no way of knowing if the men in Guantanamo are the hardened criminals that the CIA claims they are.  And to torture anybody—guilty or not—is something that may happen in authoritarian regimes, like Saddam Hussein’s Iraq, but does not befit our republic.

            I had thought that Dr. Rice as a diplomat would be less defensive about one of the most notorious prisons in existence today, but I take comfort in knowing that everyone of importance in the current administration disagrees with her stance.

The meek have inherited the Congress

            Rare is the occasion when I find myself in agreement with conservative commentator George F. Will.  Given that he is to newspapers what Bill O’Reilly is to television—only with a better vocabulary and a more even temper—many of his columns have elicited eye rolls and head shakes of disgust.  But in a Sunday opinion piece, Will provided a political assessment that is as accurate as it is disturbing: that Congress has allowed the executive branch to gain disproportionate at its own expense.

            He cited the Economic Stabilization Act of 2008—the bailout bill—as the perfect storm of Congress signing over vast amounts of money to the executive branch, whereby non-elected officials accountable only to the president decided how much money got doled out and to whom.  Car companies, banks, and lending institutions all got theirs, but what have we to show for it?  There is no use asking the people who oversaw the operation—they have already left town.

            It is not just during the bailout that Congress has been under-aggressive in performing their duties of regulating commerce, providing for the common defense and general welfare, promoting the progress of science, and making rules for the government.  During the entire Bush administration, when foreigners were being tortured, the justice department was being politicized, and veterans were receiving abominable care at Walter Reed Medical Center—not to mention the prosecution of the war in Iraq—Congress meekly was strung along.  Its subpoenas were ignored; its questions were evaded; the vice president of these United States even dropped an f-bomb to an elected official on the floor of the Senate.

            There is a reason that Article I of the Constitution is the first and lengthiest section of our nation’s blueprint: protecting the interests of the people and of the individual states is the chief duty of our representatives.  Judges and the president are merely administrators, checking the will of the people when it threatens individual liberty and collective security; but otherwise, their job is to translate the needs of the electorate, interest groups, and institutions into law.  Part of that job is to channel populist outrage into reform—as we saw in the AIG bonus debacle. 

       But when the executive branch is the party committing the outrage, Congress has been more than tepid.  I do not feel that my welfare is more secure when secret wiretaps and waterboarding are authorized by the president.  Or when the EPA refuses to acknowledge that greenhouse gases are harmful to the public.  Or when the Treasury Secretary disappears large amounts of money into shaky financial institutions.  None of the executive branch’s lawyers, administrators, or Cabinet members is elected by the public-and most are faceless bureaucrats.

       Alexander Hamilton, writing in the Federalist Papers to advocate the adoption of our Constitution, maintained that the executive branch should consist only of the president and his vice president, not a “council” of administrators.  Through a unitary executive, one person alone would be accountable to the country and would have to answer to the voters.  “An artful cabal” in a presidential council, he wrote, “would be able to distract and enervate the whole system of administration….It often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures ought really to fall.”  We are now bordering on that type of system: a Congress which deputizes the conduct of national affairs to the president, who then parcels out administration among his loyalists who are merely trusted to obey the spirit of the law.

       I recognize that in difficult times we need a single person to provide direction and unify the country.  But Congress should not wring its hands when wrongdoing occurs under the president as they did during the Bush years.  Our representatives thoroughly embarrassed auto executives last fall for flying in private jets, yet none of the Bush Cabinet officials has answered questions about improprieties in the Justice Department, violations of the Geneva Conventions, or scientific censorship.  The 535 men and women in the Capitol are the only barrier to the imposition of an imperial presidency on our republic.  Congressmen should not aim to become as rabid as Joseph McCarthy, but in order to prevent another rabidly-powerful Bush White House, Congress should not delegate their legislative powers to the president and must expose wrongdoing through hearings, the media, and prosecutions.

Bush’s tainted legacy

        It is hard to feel sorry for President Bush.  For all of his faith and folksiness, his administration has been plagued by disasters that would rival the tenures of Herbert Hoover, Warren Harding, and Richard Nixon combined.  Some of his administration’s policies were simply wrong, such as the aversion to environmental and financial regulation and the idea of preemptive war.  Others were unethical, like the ideological hiring of Justice Department employees, the mishandling of the Hurricane Katrina response, or torture carried out at Guantanamo Bay.  The bottom line, after eight years, is that George W. Bush, whose only substantive political foray was as the two-term governor of Texas, headed one of the worst presidencies in history.

            Paul O’Neill, Bush’s centrist treasury secretary who was the highest ranking official to be fired first, was profiled in a book by Ron Suskind, The Price of Loyalty.  In it, he talks about how his 23 months on the job were categorized by purely ideological discourse among Bush’s advisers and a failure to seriously consider the implications of a range of policies—including the refusal to act on global warming or the idea that repeated tax cuts would be the key to economic recovery or the fact that Saddam Hussein’s demise was being plotted from Day Ten of the new presidency.

            In one chapter of the book O’Neill was in a meeting with Federal Reserve Chairman Alan Greenspan talking about how CEOs must take full responsibility for the accounting practices of their companies.  This was in the wake of the Enron bankruptcy, when the need for transparency and accountability became clear.  O’Neill shared his thoughts on corporate governance—and whether or not Suskind meant for this to be an allegory for the Bush presidency as a whole, the following passage serves a purpose beyond a casual statement of economic policy:

            If the CEO was to represent an ideal of probity, and guide all those in a company’s orbit to the highest standards of decency, transparency, and disclosure, he’d have to be motivated by fear—fear of the abyss.  Contemplating Greenspan’s sepulchral assessments affirmed for O’Neill that the standard to trigger litigation and censure should no longer be recklessness [with a company's finances].  That was too narrow, too rare—a standard that doubtless would apply to Ken Lay when he was CEO of Enron.  But Lay was one in a thousand.   No, the new standard should be negligence.  If you do not present to investors an accurate picture of the company you run—an illustration that a “reasonable person,” or in this case a “reasonable investor” can understand and, thus, know to be true—you are negligent.

            A moment had arrived.  Historic events had created a sudden, stark recognition of what had slowly and steadily been going away in corporate America for twenty years.  Pin a negligence standard to the CEO, who would be kept honest by the “reasonable investor,” and the tide would turn.  Profits for the boss and the shareholder would flow from a new standard, a kind of integrity competition-rather than what my company and I can get away with.  As for the negligent CEO, O’Neill thought, settling into the role of scourge, watch out!

           

      As the country’s CEO, Bush was both negligent and reckless.  Negligence took the form of a failure to recognize the economy could topple at any moment thanks to years of risky trading.  Recklessness by invading a sovereign country with very little evidence of an imminent threat.  Negligence such as failing to discipline subordinates who leaked the name of CIA operative Valerie Plame after her husband openly disagreed with Bush policy.  Recklessness in sanctioning the use of waterboarding on suspected (though not convicted) terrorists.  The list goes on.  And Congress has meted out very little in terms of punishment.

            How can we, as a country, hold Bush accountable for a lack of transparency and obvious malpractice?  Impeachment was never an option—since there was no sex or money involved—and a criminal trial does not seem to be forthcoming.  In the short term, there is no way to punish this man and his associates, short of throwing all of our shoes at him.  But we can take small pride in knowing that now that he and his party are out of power, they will have very little relevance in the new paradigm that starts on January 20.

            Perhaps the sharpest sting is in knowing that in the coming years, more people like Paul O’Neill will step forward and complete the picture of an administration marred in ideological guidance at the expense of science, inquiry, and sound judgment.  Their stories will become part of history, and history alone will be the most damning judge and executioner of the presidency of George W. Bush.