The Blog

Breaking the Durbin Code

What Dick Durbin said, what he really meant, and why the Senate should vote to censure him.

12:00 AM, Jun 20, 2005 • By HUGH HEWITT
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I believe the torture techniques that have been used at Abu Ghraib and Guantanamo and other places fall into that same category. I am confident, sadly confident, as I stand here, that decades from now people will look back and say: What were they thinking? America, this great, kind leader of a nation, treated people who were detained and imprisoned, interrogated people in the crudest way? I am afraid this is going to be one of the bitter legacies of the invasion of Iraq.

We were attacked on September 11, 2001. We were clearly at war.

We have held prisoners in every armed conflict in which we have engaged. The law was clear, but some of the president's top advisers questioned whether we should follow it or whether we should write new standards.

Alberto Gonzales, then-White House chief counsel, recommended to the president the Geneva Convention should not apply to the war on terrorism.

Colin Powell, who was then Secretary of State, objected strenuously to Alberto Gonzales' conclusions. I give him credit. Colin Powell argued that we could effectively fight the war on terrorism and still follow the law, still comply with the Geneva Conventions. In a memo to Alberto Gonzales, Secretary Powell pointed out the Geneva Conventions would not limit our ability to question the detainees or hold them even indefinitely. He pointed out that under Geneva Conventions, members of al Qaeda and other terrorists would not be considered prisoners of war.

There is a lot of confusion about that so let me repeat it. The Geneva Conventions do not give POW status to terrorists.

In his memo to Gonzales, Secretary Powell went on to say setting aside the Geneva Conventions "will reverse over a century of U.S. policy and practice . . . and undermine the protections of the law of war for our own troops . . . It will undermine public support among critical allies, making military cooperation more difficult to sustain."

When you look at the negative publicity about Guantanamo, Secretary Colin Powell was prophetic.

Unfortunately, the president rejected Secretary Powell's wise counsel, and instead accepted Alberto Gonzales' recommendation, issuing a memo setting aside the Geneva Conventions and concluding that we needed "new thinking in the law of war."

After the president decided to ignore Geneva Conventions, the administration unilaterally created a new detention policy. They claim the right to seize anyone, including even American citizens, anywhere in the world, including in the United States, and hold them until the end of the war on terrorism, whenever that may be.

For example, they have even argued in court they have the right to indefinitely detain an elderly lady from Switzerland who writes checks to what she thinks is a charity that helps orphans but actually is a front that finances terrorism.

They claim a person detained in the war on terrorism has no legal rights--no right to a lawyer, no right to see the evidence against them, no right to challenge their detention. In fact, the government has claimed detainees have no right to challenge their detention, even if they claim they were being tortured or executed.

This violates the Geneva Conventions, which protect everyone captured during wartime. The official commentary on the convention states: "Nobody in enemy hands can fall outside the law."

That is clear as it can be. But it was clearly rejected by the Bush administration when Alberto Gonzales as White House counsel recommended otherwise.

U.S. military lawyers called this detention system "a legal black hole." The Red Cross concluded, "U.S. authorities have placed the internees in Guantanamo beyond the law."

Using their new detention policy, the administration has detained thousands of individuals in secret detention centers all around the world, some of them unknown to members of Congress. While it is the most well-known, Guantanamo Bay is only one of them. Most have been captured in Afghanistan and Iraq, but some people who never raised arms against us have been taken prisoner far from the battlefield.

Who are the Guantanamo detainees? Back in 2002, Secretary Rumsfeld described them as "the hardest of the hard core." However, the administration has since released many of them, and it has now become clear that Secretary Rumsfeld's assertion was not completely true.

Military sources, according to the media, indicate that many detainees have no connection to al Qaeda or the Taliban and were sent to Guantanamo over the objections of intelligence personnel who recommended their release. One military officer said: "We're basically condemning these guys to a long-term imprisonment. If they weren't terrorists before, they certainly could be now."