The delegates gathered in Boston for the Democratic convention are now reported to be overwhelmingly opposed to the war in Iraq. But if their belated opposition is to change the policy of a future Kerry administration, it will require a return to respect for the law.
The delusion that officeholders know better than the law is an occupational hazard of the powerful and one to which those of an imperial cast of mind are especially prone. Checks and balances -- the constitutional underpinning of the democratic idea that no one individual can be trusted with unlimited power -- are there to keep such delusions under control.
The Abu Ghraib photographs awakened many in the US to the abuses that lie beneath the rhetoric of the global war on terror but the institutions responsible have not taken the message on board. On the day the Congressional report into Sept. 11 was published, another document was quietly released -- a military report that exonerated the high command for the Abu Ghraib abuses.
The implications go beyond Abu Ghraib: without a repudiation of the administration's actions, there will be no remedy for the even more sinister treatment of the unknown number of prisoners not captured on camera -- those who have been kidnapped and disappeared by US forces across the world.
Under military order No. 1, issued by US President George W. Bush in Nov. 2001, the president gave himself the right, in defiance of national and international law, to detain indefinitely any non-US citizen anywhere in the world. Many ended up in Guantanamo where at least some of their names were discovered.
Others simply vanished. They became in the US euphemism, "ghost prisoners", an unrecorded host held in secret, their detention denied, hidden from the Red Cross, legal or family access barred, their fate in the hands of unaccountable and unnamed US personnel.
When disappearance became state practice across Latin America in the 70s it aroused revulsion in democratic countries where it is a fundamental tenet of legitimate government that no state actor may detain -- or kill -- another human being without having to answer to the law.
Not only has Bush discarded that principle, he even brags about it. In his state of the union address in February last year, he said: "More than 3,000 suspected terrorists have been arrested in many countries. Many others have met a different fate. Put it this way, they're no longer a problem to the United States and our friends and allies."
What are we to understand by this? That they have been murdered? That they are rotting in some torture cell in Jordan, or Egypt, or Diego Garcia? And, given the US record on "suspected terrorists" -- who have included taxi drivers and their passengers, boys of 13, old men who could hardly walk and migrants whose crime was to overstay a visa -- how can we trust a practice that disposes of people first and asks questions afterwards?
Nobody knows how many ghost prisoners there are. The US, as the Latin American dictatorships did, strains to ensure that we do not find out. In Iraq, of the roughly 12,000 detained after the US invasion, some appeared on lists, others vanished because of chaos and incompetence. Others died under interrogation.
Beyond the Iraqi jails, others -- including, but not limited to, the dozen or so high-profile al-Qaeda detainees captured since the war in Afghanistan -- have disappeared into the international ghost prison system, detained in one country and secretly transferred to another in what the official euphemism describes as "extraordinary rendition."
Extraordinary rendition was codified in the Clinton administration. Under Bush it has been hugely expanded.
As the US coordinator for counterterrorism, Cofer Black, acknowledged in April last year, "a large number of terrorist suspects were not able to launch an attack last year because they are in prison. More than 3,000 of them are al-Qaeda terrorists and they were arrested in over 100 countries."
Representative Edward Markey, who last month introduced a bill to make extraordinary rendition illegal in US law, has noted that in the year after Sept. 11, George Tenet, then director of the CIA, admitted to the rendition of 70 people, describing them all as terrorists.
Maher Arar, though, is not a terrorist. He is one of the few "ghost prisoners" who have emerged to testify to the reality behind extraordinary rendition. A Syrian-born Canadian, Arar was detained while changing planes in New York in 2002.
His name was on a terrorist watch-list but he was not charged in the US or even extradited to Canada, a friendly country with an inconvenient regard for the rule of law. Instead he was flown to Jordan, then sent on to Syria, a state that the US categorizes as one that practises torture.
One CIA agent explained to a reporter how it worked in the 1990s.
"We'd arrest them and send them to Jordan or Egypt, and they'd disappear," he said. They were not charged in the US, he said, because the evidence would not hold up in court.
The evidence against Maher Arar did not even hold up in a Syrian court. His crime was that his mother's cousin had joined the Muslim Brotherhood long after Maher moved to Canada. After 10 months of torture and incarceration in a cell the size of a grave, he was allowed to resume his journey home. Now he is suing the US government.
Some indication of the scale of the network of detention centers can be gleaned from a recent report by Human Rights First, formerly the Lawyers' Committee for Human Rights. In Afghanistan, they say, in addition to the Bagram and Kandahar bases, the US acknowledges 20 other centers.
In Iraq, there are three official centers, including Abu Ghraib, and an additional nine US military facilities. In Pakistan, a prison at Kohat, near the Afghan border, is under US control. In Jordan, the al-Jafr prison in the southern desert is used as a CIA detention center. Human Rights First suspects that prisoners are held on US military ships and in bases such as Diego Garcia.
Other prisoners have been "rendered" to Egypt and, as in the Arar case, to Syria, both countries in which torture is well established.
Torture is illegal in the US. Facilitating torture elsewhere is also illegal under the convention against torture, to which the US is a signatory.
"I think it's time," said Jamie Fellner of Human Rights Watch, "that we began to recognize that ghost prisoners are the new disappeared. And disappearance is almost invariably associated with mistreatment and torture."
Markey has taken a stand.
"Extraordinary rendition is the 800lb gorilla in our foreign and military policy-making that nobody wants to talk about. It involves our country outsourcing interrogations to countries that are known to practice torture, something that erodes America's moral credibility," he said.
It is up to his fellow Democrats to support him.
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