A Tragic Legacy: How a Good vs. Evil Mentality Destroyed the Bush Presidency

by Glenn Greenwald

  That anti-Americanism around the world has reached an all-time high is not, standing alone, conclusive evidence that America has veered off course from its ideals. Just as domestic majorities may be wrong in the views they hold, so, too, can international majorities. Like all other countries, America cannot, and should not, determine its actions solely by what makes it most popular in the world. All countries act in their own interests, and the U.S. has every right to do the same.

  Nonetheless, in light of America’s need for international cooperation on virtually every front, the U.S. cannot be indifferent to surging anti-Americanism. U.S. interests generally, and national security specifically, can only suffer if the world turns against the U.S., or worse still, unites in opposition. There are reasons why America’s moral credibility in the world has declined so precipitously during the Bush presidency, and it is indisputable that many of those reasons lie in the decisions and policies of George Bush.

  Perhaps the most potent example of the Bush presidency’s evisceration of American values is the administration’s May 2002 lawless detention of U.S. citizen José Padilla. The administration arrested Padilla on U.S. soil and declared him an “enemy combatant,” threw him in a military prison, and refused to charge him with any crime or allow him access even to a lawyer. He stayed in a black hole, kept there by his own government, for the next three and a half years with no charges brought against him, while the administration insisted on the right to detain him (and any other American citizen) indefinitely—all based solely on the secret, unchallengeable say-so of the president that Padilla was an “enemy combatant.”

  To this day, one has trouble believing that we have a government that claims this power against American citizens, exercises that power, and aggressively defends it—and even more trouble believing that there are so many blindly loyal followers of that government who defend this conduct. The outrage that such conduct provokes when thinking about it has not diminished and prevails no matter how many times one reads, writes, or speaks about it. It is as profound a betrayal of the most core American political principles as one can fathom.

  In late 2005, the Bush administration finally charged Padilla with a crime only because the U.S. Supreme Court was set to rule on the legality of its treatment of Padilla. Indicting Padilla enabled the administration to argue that his constitutional challenge was now “moot.” The government’s indictment made no mention of the flamboyant allegation they originally trumpeted to justify his lawless incarceration—namely, that he was a “Dirty Bomber” attempting to detonate a radiological bomb in an American city. That accusation was not asserted against Padilla in court because the “evidence” for that accusation was itself procured by torture and was therefore unreliable and unusable. Instead, the indictment contained only the vaguest and most generic terrorism allegations.

  In September 2006, Padilla’s lawyers filed an extraordinary Motion to Dismiss the Indictment against him on the grounds that the government has engaged in outrageous conduct—specifically, that they tortured him for the three and a half years he remained in captivity, particularly for the almost two full years that they denied him access even to a lawyer. All of the treatment Padilla describes has been cited by numerous other detainees, and much of that treatment is now part of the “interrogation and detention techniques” which the president has the legal authority to inflict pursuant to the Military Commissions Act. Thus, much of what Padilla describes is now perfectly legal in the United States—even when applied against individuals charged with no crimes of any kind.

  The argument section of Padilla’s brief begins:

  “Whoever fights monsters should see to it that in the process he does not become a monster. And when you look long into an abyss, the abyss also looks into you.”

  Friedrich Nietzsche, Beyond Good and Evil 89 (Walter Kaufmann trans., Vintage Books 1966) (1886).

  Padilla’s brief then details the treatment to which he was subjected, a small portion of which follows. One should bear in mind that José Padilla is a U.S. citizen, born in New York, and had never been charged with, let alone convicted of, any terrorism-related crime:

  In an effort to gain Mr. Padilla’s “dependency and trust,” he was tortured for nearly the entire three years and eight months of his unlawful detention. The torture took myriad forms, each designed to cause pain, anguish, depression and, ultimately, the loss of will to live. The base ingredient in Mr. Padilla’s torture was stark isolation for a substantial portion of his captivity.

  For nearly two years—from June 9, 2002 until March 2, 2004, when the Department of Defense permitted Mr. Padilla to have contact with his lawyers—Mr. Padilla was in complete isolation. Even after he was permitted contact with counsel, his conditions of confinement remained essentially the same.

  He was kept in a unit comprising sixteen individual cells, eight on the upper level and eight on the lower level, where Mr. Padilla’s cell was located. No other cells in the unit were occupied. His cell was electronically monitored twenty-four hours a day, eliminating the need for a guard to patrol his unit. His only contact with another person was when a guard would deliver and retrieve trays of food and when the government desired to interrogate him.

  His isolation, furthermore, was aggravated by the efforts of his captors to maintain complete sensory deprivation. His tiny cell—nine feet by seven feet—had no view to the outside world. The door to his cell had a window, however, it was covered by a magnetic sticker, depriving Mr. Padilla of even a view into the hallway and adjacent common areas of his unit. He was not given a clock or a watch and for most of the time of his captivity, he was unaware whether it was day or night, or what time of year or day it was.

  In addition to his extreme isolation, Mr. Padilla was also viciously deprived of sleep. This sleep deprivation was achieved in a variety of ways. For a substantial period of his captivity, Mr. Padilla’s cell contained only a steel bunk with no mattress. The pain and discomfort of sleeping on a cold, steel bunk made it impossible for him to sleep. Mr. Padilla was not given a mattress until the tail end of his captivity….

  Other times, his captors would bang the walls and cell bars creating loud startling noises. These disruptions would occur throughout the night and cease only in the morning, when Mr. Padilla’s interrogations would begin. Efforts to manipulate Mr. Padilla and break his will also took the form of the denial of the few benefits he possessed in his cell….

  Mr. Padilla’s dehumanization at the hands of his captors also took more sinister forms. Mr. Padilla was often put in stress positions for hours at a time. He would be shackled and manacled, with a belly chain, for hours in his cell. Noxious fumes would be introduced to his room causing his eyes and nose to run. The temperature of his cell would be manipulated, making his cell extremely cold for long stretches of time. Mr. Padilla was denied even the smallest, and most personal shreds of human dignity by being deprived of showering for weeks at a time, yet having to endure forced grooming at the whim of his captors….

  He was threatened with being cut with a knife and having alcohol poured on the wounds. He was also threatened with imminent execution. He was hooded and forced to stand in stress positions for long durations of time. He was forced to endure exceedingly long interrogation sessions, without adequate sleep, wherein he would be confronted with false information, scenarios, and documents to further disorient him. Often he had to endure multiple interrogators who would scream, shake, and otherwise assault Mr. Padilla.

  Additionally, Mr. Padilla was given drugs against his will, believed to be some form of lysergic acid diethylamide (LSD) or phencyclidine (PCP), to act as a sort of truth serum during his interrogations.

  Throughout most of the time Mr. Padilla was held captive in the Naval Brig he had no contact with the outside world. In March 2004, one year and eight months after arriving in the Naval Brig, Mr. Padilla was permitted his first contact with his attorneys. Even thereafter, although Mr. Padilla had access to counsel, and thereby some con
tact with the outside world, those visits were extremely limited and restricted….

  The deprivations, physical abuse, and other forms of inhumane treatment visited upon Mr. Padilla caused serious medical problems that were not adequately addressed. Apart from the psychological damage done to Mr. Padilla, there were numerous health problems brought on by the conditions of his captivity. Mr. Padilla frequently experienced cardiothoracic difficulties while sleeping, or attempting to fall asleep, including a heavy pressure on his chest and an inability to breathe or move his body.

  It is worth noting that throughout his captivity, none of the restrictive and inhumane conditions visited upon Mr. Padilla were brought on by his behavior or by any actions on his part. There were no incidents of Mr. Padilla violating any regulation of the Naval Brig or taking any aggressive action towards any of his captors. Mr. Padilla has always been peaceful and compliant with his captors. He was, and remains to the time of this filing, docile and resigned—a model detainee….

  In sum, many of the conditions Mr. Padilla experienced were inhumane and caused him great physical and psychological pain and anguish. Other deprivations experienced by Mr. Padilla, taken in isolation, are merely cruel and some, merely petty. However, it is important to recognize that all of the deprivations and assaults recounted above were employed in concert in a calculated manner to cause him maximum anguish.

  It is also extremely important to note that the torturous acts visited upon Mr. Padilla were done over the course of almost the entire three years and seven months of his captivity in the Naval Brig. For most of one thousand three hundred and seven days, Mr. Padilla was tortured by the United States government without cause or justification. Mr. Padilla’s treatment at the hands of the United States government is shocking to even the most hardened conscience, and such outrageous conduct on the part of the government divests it of jurisdiction, under the Due Process clause of the Fifth Amendment, to prosecute Mr. Padilla in the instant matter.

  The case of José Padilla is one of the most despicable and outright un-American travesties the U.S. government has perpetrated for a long time. It is impossible to defend that behavior, let alone engage in it, while claiming with any legitimacy that one believes in the principles that have defined and guided this country since its founding. But there has been no retreat from this conduct. Quite the contrary, the legislative atrocity known as the Military Commissions Act of 2006 is a huge leap toward elevating the Padilla treatment from the lawless shadows into full-fledged, officially sanctioned, and legally authorized policy of the U.S. government. The case of José Padilla is no longer a vile aberration, but is instead emblematic of the kind of government we have chosen to have under the Bush presidency, justified by our war for Good.

  These abuses are hardly confined to the case of Padilla. The Bush administration’s treatment of Ali Saleh Kahlah al-Marri also ought to be shocking and horrifying. Instead, it is now not only depressingly familiar but also formally sanctioned by the U.S. Congress.

  In 2001, al-Marri, a citizen of Qatar, was in the United States legally on a student visa. He was a computer science graduate student at Bradley University in Peoria, Illinois, where he had earned an undergraduate degree a decade earlier. In Peoria, he lived with his wife and five children.

  In December 2001, he was detained as a “material witness” to suspected acts of terrorism and ultimately charged with various terrorism-related offenses, mostly relating to false statements the FBI claimed he had made as part of its 9/11 investigation. Al-Marri vehemently denied the charges, and after lengthy pretrial proceedings, his criminal trial on those charges was scheduled to begin on July 21, 2003.

  But his trial never took place, because in June 2003—immediately before the trial was to start—President Bush declared al-Marri to be an “enemy combatant.” As a result, the Justice Department told the court it wanted to turn him over to the U.S. military, and thus asked the court to dismiss the criminal charges against him. The court did so. Thus, right before his trial, the Bush administration simply removed al-Marri from the jurisdiction of the judicial system—based solely on the unilateral order of the president—and thus prevented him from contesting the charges against him.

  Instead, the administration transferred al-Marri to a military prison in South Carolina (where the administration brings its “enemy combatants” in order to ensure that the executive-power-friendly Fourth Circuit Court of Appeals has jurisdiction over all such cases). Al-Marri was given the “Padilla Treatment”—kept in solitary confinement and denied all contact with the outside world, even including his attorneys. He was not charged with any further crimes and was given no opportunity to prove his innocence. Instead, the Bush administration simply asserted the right to imprison him indefinitely.

  In November 2006, Congress ratified this executive behavior when it enacted the Military Commissions Act (MCA). And the Bush administration wasted no time relying on that statutory authority to justify the exercise of this extreme detention power. From the Associated Press report in December regarding al-Marri’s case:

  In court documents filed with the 4th U.S. Circuit Court of Appeals in Richmond, Va., the Justice Department said a new anti-terrorism law being used to hold detainees in Guantánamo Bay also applies to foreigners captured and held in the United States.

  Immigrants arrested in the United States may be held indefinitely on suspicion of terrorism and may not challenge their imprisonment in civilian courts, the Bush administration said Monday, opening a new legal front in the fight over the rights of detainees.

  The MCA authorizes the president to detain any noncitizen as an enemy combatant and does not require that detainees be charged with any crime. That includes resident aliens and foreigners who have legally entered the United States:

  “It’s pretty stunning that any alien living in the United States can be denied this right,” said Jonathan Hafetz, an attorney for Al-Marri. “It means any non-citizen, and there are millions of them, can be whisked off at night and be put in detention.”

  These are precisely the practices the U.S., for decades, has vocally condemned when employed by other countries. As Amnesty International has said with respect to this case:

  The practice of detaining people incommunicado has been condemned by human rights bodies, including the UN Special Rapporteur on Torture, as a human rights violation which can lead to other violations such as torture or ill-treatment or interrogation without due process safeguards.

  Access to a lawyer is an important safeguard to ensure that detainees’ rights are protected, not only with regard to criminal or other proceedings, but also with regard to conditions of detention and a detainee’s physical and mental health. Prolonged incommunicado detention or solitary confinement can in itself be a form of cruel, inhuman or degrading treatment.

  Sermons like that about the value of basic individual rights and the imperatives of due process were previously delivered by the United States. Now, they need to be delivered to us, because we seem to have rejected them. By submitting to the president’s Manichean imperatives, we have become a country that vests in the president the power to order people imprisoned indefinitely with no meaningful review of the charges against them, even when the detainees are not detained on any battlefield, and even when they are detained on U.S. soil.

  There is no greater betrayal of the core principles of American political values than to have the federal government sweep people off the streets, throw them into a black hole incommunicado, with no charges asserted of any kind, for as long as the president desires—in the case of al-Marri’s detention, now five years and counting. Principles once beyond debate, constituting the bedrock of our political system, are now openly violated by our own government.

  DEFENDING AMERICA BY ABANDONING ITS VALUES

  The treatment of Padilla and al-Marri, and the new executive powers routinely exercised by the president, would provoke outrage if engaged in by any other country. But the fact that it is the U.S. that h
as empowered the president to take such steps reveals what a radical legacy George Bush will leave. The U.S. has spent decades condemning precisely this kind of behavior when engaged in by other countries, even calling it Evil.

  As for one highly illustrative example showing we do not tolerate such conduct from other nations, Florida senator Mel Martinez, who in 2007 also became the Republican Party chairman, sent around an e-mail in the fall of 2006 praising himself for his intervention in the case of Cuc Foshee, a U.S. citizen who had just been released from a Vietnamese prison. The month prior, Foshee had been convicted after a trial of a plot to overthrow the Vietnamese government (deemed to be “terrorism” under Vietnamese law), which included planned bombings as well as radio devices “to jam the airwaves of pro-government radio stations and broadcast their own message of uprising.”

  Martinez made Foshee’s release a personal crusade, single-handedly obstructing U.S. normalization of trade relations with Vietnam unless Foshee was released. To justify and celebrate his intervention in this case, Senator Martinez claimed in his e-mail that Foshee was subjected to oppressive and unjust treatment by the Vietnamese government. His e-mail proclaimed:

  This week, Senator Martinez praised the return to the United States of Thuong Nguyen “Cuc” Foshee, a U.S. citizen residing in Orlando, Florida. Mrs. Foshee was arrested and imprisoned in Vietnam and for the first 14 months of her imprisonment, she was not formally charged nor allowed to seek legal counsel….

  Senator Martinez, U.S. Representative Ric Keller and State Department officials worked together to encourage the Vietnam government cooperated [sic] and Mrs. Foshee was allowed to return to the United States last Monday.