We’ve Said It Before, And We’ll Say It Again

KHALID SHEIK Mohammed’s cold-blooded confession of responsibility for the attacks of Sept. 11, 2001, and other horrific crimes before a tribunal in Guantanamo Bay got a lot of attention when the Pentagon released a partial transcript last week — and understandably so. But another set of disclosures by the al-Qaeda leader that could also be sensational received almost no attention. That’s because the Pentagon swiftly classified a document submitted by Mr. Mohammed in which he detailed the torture he says he suffered. The rationale is that disclosure of those allegations would harm national security. In fact, the harm the Bush administration’s abuse of prisoners has already done to this country’s ability to combat Islamic extremism will only be compounded if it succeeds in making this shameful record a state secret.

The administration claims it has not used torture on prisoners such as Mr. Mohammed. Yet it has been working aggressively to ensure that he and 13 other accused terrorists formerly held in secret CIA prisons are never allowed to reveal how they were treated. In addition to classifying Mr. Mohammed’s statement, the administration is making the surreal argument in court that in being subjected to “alternative” interrogation methods, al-Qaeda detainees were receiving top-secret information — and so may be prohibited from ever discussing their experience, even to the defense attorneys seeking to represent them.

The government claims that this looking-glass policy is necessary to prevent al-Qaeda members still at large from learning of the CIA’s methods so that they can train against them. Yet some of the harshest action taken against Mr. Mohammed has already been widely reported: He was treated to “waterboarding,” or simulated drowning, an ancient torture method that every U.S. administration prior to this one has considered illegal. CIA detainees are also known to have been subjected to temperature extremes and sleep deprivation. The administration has assured Congress that it has dropped some of these methods, including waterboarding. If that’s true, Mr. Mohammed’s statement will not alert future detainees, but it will open a debate about whether the CIA’s past practices were legal or morally justifiable.

“Paradoxically, preserving liberty may require the rule of a single leader–a dictator–willing to use those dreaded ‘extraordinary measures,’ which few know how, or are willing, to employ.” — Michael Ledeen, White House advisor and fellow of the American Enterprise Institute, “Machiavelli on Modern Leadership: Why Machiavelli’s Iron Rules Are As Timely and Important Today As Five Centuries Ago”

“Gen. Tommy Franks says that if the United States is hit with a weapon of mass destruction that inflicts large casualties, the Constitution will likely be discarded in favor of a military form of government.” — NewsMax, November 21, 2003

In October 2006, Bush signed into law the John Warner National Defense Authorization Act for Fiscal Year 2007. Quietly slipped into the law at the last minute, at the request of the Bush administration, were sections changing important legal principles, dating back 200 years, which limit the U.S. government’s ability to use the military to intervene in domestic affairs. These changes would allow Bush, whenever he thinks it necessary, to institute martial law–under which the military takes direct control over civilian administration.

Sec. 1042 of the Act, “Use of the Armed Forces in Major Public Emergencies,” effectively overturns what is known as posse comitatus. The Posse Comitatus Act is a law, passed in 1878, that prohibits the use of the regular military within the U.S. borders. The original passage of the Posse Comitatus Act was a very reactionary move that sealed the betrayal of Black people after the Civil War and brought the period of Reconstruction to an end. It decreed that federal troops could no longer be used inside the former Confederate states to enforce the new legal rights of Black people. Black people were turned over to the armed police and Klansmen serving the southern plantation owners, and the long period of Jim Crow began.

During the 20th century, posse comitatus objectively started to play a new role within the bourgeois democratic framework: as a legal barrier to the direct influence of the powerful military establishment and the armed forces over domestic U.S. society. It served to some degree as an obstacle against military coups and presidents seizing military control over the country. (However, National Guard troops have been legally available to the ruling class for use inside the U.S., and there have been other loopholes to the prohibition of the use of armed forces domestically, as in the mobilization of Marine troops during the 1992 L.A. Rebellion.)

So the changes to posse comitatus signed into law by Bush are extremely significant and ominous. Bush has modified the main exemptions to posse comitatus that up to now have been primarily defined by the Insurrection Act of 1807. Previously the president could call out the army in the United States only in cases of insurrection or conditions where “rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State or Territory by the ordinary course of judicial proceedings.” Under the new law the president can use the military in response to a natural disaster, a disease outbreak, a terrorist attack or “other condition in which the President determines that domestic violence has occurred to the extent that state officials cannot maintain public order.”