Crimes and Misdemeanors

Is it haplessness or sheer unscrupulousness that's plaguing the Bush presidency?

The Bush presidency is dying from "incompetence." That's the emerging narrative: a story of poor execution. The country elected a failure and, as throughout his life, he messed up. This time his father could not save him, nor us from him.

All true. But "incompetence" takes Bush off the moral hook. Notably it elides the open question of his criminality. No president before him has countenanced torture, a crime under international and United States law. Every day he keeps his torturer-in-chief in office, Bush is an accessory after the fact in Rumsfeld's crimes. Both men may face prosecution by the International Criminal Court for the wrongful imprisonment and torture of many of the Guantánamo detainees. Only approximately ten of the 517 detainees have been charged with violating the rules of war.

Two recent reports provide evidence of incompetence and criminality. Written by a team of legal researchers led by Mark P. Denbeaux, a Seton Hall University law professor and counsel to two Guantánamo prisoners, the reports rely exclusively on data from the Combatant Status Review Tribunals conducted for detainees now facing their fifth year of torture. At a forum this week broadcast by C-Span at which Denbeaux presented his evidence, released prisoners from Guantánamo described the beatings and humilations meted out to them by their depraved American captors. FBI emails confirm the kinds of punishment they described, and lawyers have testified about specific injuries to their clients. Only a moral ruin like Rumsfeld would cavil over using the legally-freighted word "torture" to characterize what the prisoners who spoke on C-Span suffered.

Incompetence: The Pentagon classified 164 of the detainees as enemy combatants solely for their "links" to terrorist groups other than the Taliban or al Qaeda. The Pentagon lists seventy-two such groups. The Seton Hall researchers matched these against the proscribed groups on the State Department Other Lists and the Patriot Act Exclusion List—and made a startling finding. Fifty-two of the Department of Defense's seventy-two groups do not appear on the State/Patriot Act lists. State would allow into the country sixty-eight of the 164 men called "the worst of the worst" by Rumsfeld, including members of Takfir-wal-Hijra, Mohammed Atta's group. If another Atta were to apply for a U.S. visa, apparently he'd get it.

State, the Pentagon, and Congress (which drew up the Patriot Act list) can't agree on which groups should be proscribed. State does not, according to the Seton Hall report, "recognize 60 groups that that Patriot Act Terrorist Exclusion List designates as terrorist organizations." For its part, the Patriot Act List does not recognize thirty-nine groups on State's list. Only seven of seventy-two groups on the Pentagon list appear on both the State and Patriot Act lists.

"If the Department of Defense List is correct," the Seton Hall lawyers and law students conclude, "then domestic American civilians are not protected from members of dangerous terrorist groups." Alternatively, "If the State Department Other Lists and the Patriot Act Terrorist Exclusion Lists are correct, then a significant number of Guantánamo Bay detainees are being held based on their connection to groups that do not participate in terrorist activities." Which brings us to...

Criminality: The Pentagon is holding and probably torturing at least sixty-four men that the State Department would, other things being equal, admit into the United States. That is monstrous. If they get out alive they will talk—and what they say could put Bush and Rumsfeld behind bars. Rumsfeld must want all the prisoners dead to hide crimes that, as a recent New Yorker profile of a former high Pentagon official disgusted with his boss leaves no doubt, Rumsfeld authorized.

In an earlier report, the Seton Hall lawyers and law students examined the "government's story" about why the detainees were being held. Fifty-five percent did not, the Pentagon admits, commit any hostile acts against the United States or coalition forces. Only eight percent are "al Qaeda fighters." Only five percent were captured by U.S. troops. Ninety-three percent were turned in by bounty hunters in Afghanistan and Pakistan and/or by Pakistani government officials. The bounty hunters responded to leaflets like this:

Get wealth and power beyond your dreams. You can receive millions of dollars helping the anti-Taliban forces catch al-Qaeda and Taliban murderers. This is enough money to take care of your family, your village, your tribe for the rest of your life.

If it is criminal to torture guilty men, it is downright evil to kidnap, imprison, and torture men turned in on the word of bounty hunters. Evil to torture men guilty of carrying Kalashnikov rifles in a country with a "Kalashnikov Culture," where there are at least 10 million firearms for 29 million people. Evil to torture the assistant to a man serving as a cook for Taliban forces fighting the Northern Alliance. Evil to torture men whose only offense is to have been caught wearing olive drab clothing.

Senator Feingold wants the Senate to censure President Bush for illegally wiretapping American citizens. To paraphrase Noam Chomsky on President Nixon's impeachment for covering up a "third-rate burglary," censuring Bush for wiretapping would be like indicting Al Capone for tax evasion.