The Kafka Strategy

By BOB HERBERT

Published: September 18, 2006

What we’ve seen over the past few years from Bush, Cheney & Company has been the stuff of Kafka, not Madison and Jefferson.

The president seemed about to lose it at times last week. He was fighting with everybody — tenacious reporters frustrated by the absence of straight answers about the treatment of terror suspects; key Republican senators who think it’s crazy for a great country like the U.S. to become a champion of kangaroo courts and the degradation of defendants; even his own former secretary of state, Colin Powell, who worries that the world is coming to “doubt the moral basis of our fight against terrorism.”

It seemed that the only people the president wasn’t fighting with were the Democrats, who have gone into a coma, and the yahoos who never had much of a problem with such matters as torture and detention without trial.

As Marvin Gaye once sang, “What’s going on?”

The people at the top are getting scared, that’s what’s going on. The fog of secrecy is lifting, and the Bush administration is frightened to death that it will eventually have to pay a heavy price for the human rights abuses it has ordered or condoned in its so-called war on terror.

The Supreme Court has ruled that the Geneva Conventions apply to the prisoners seized by the administration, which means that abusing those prisoners — as so many have said for so long — is unquestionably illegal. And there is also the possibility that the Democrats, if they ever wake up, may take control of at least one house of Congress, giving them the kind of subpoena power and oversight that makes the administration tremble.

Bush, Cheney & Co. are desperately trying to hold together a house of cards that is ready to collapse because their strategy and tactics for fighting terrorism were slapped together with no real regard for the rule of law. What we’ve seen over the past few years has been a nightmare version of the United States. Torture? Secret prisons? Capital trials in which key evidence is kept from the accused? That’s the stuff of Kafka, not Madison and Jefferson.

The reason President Bush has been trying so frantically to get Congressional passage of his plan to interrogate and try terror suspects is that he needs its contorted interpretations of the law to keep important cases from falling apart, and to cover the collective keisters of higher-ups who may have authorized or condoned war crimes.

There’s no guarantee that the administration can properly bring to justice even the worst of the bad guys, people like Khalid Shaikh Mohammed and 13 other high-profile prisoners who were recently transferred from a secret C.I.A. program to the detention center at Guantánamo Bay, Cuba. These are men accused of the most heinous of offenses, crimes that would subject them to the death penalty.

But it’s widely believed that some or all of them were tortured. In civilized countries, evidence obtained by torture is inadmissible in a court of law.

The Bush administration would also like to deny terror suspects, even those facing the death penalty, the right to see evidence against them that is classified. This is a concept that is so far beyond the pale it makes most legal scholars gasp.

“We don’t charge people — particularly in capital offenses, but in minor offenses, as well — without letting them see the evidence that is being offered against them,” said Scott Horton, a prominent New York attorney and Columbia law professor who has done extensive human rights work.

“Let’s imagine you’re a prosecutor,” said Mr. Horton. “Are you going to seek the death penalty against someone and convict them and let them be sentenced to death without letting them know what the evidence is against them? No way. What prosecutor wants that?”

One of the biggest concerns of the administration is the possibility of evidence emerging that could lead to charges of war crimes against high-ranking officials. The president and others in the administration have argued that they are seeking changes in the law in order to protect soldiers and ordinary interrogators in the field against war crimes accusations.

But there are already clear guidelines — short of war crimes prosecutions — for dealing with soldiers and civilian interrogators who abuse prisoners. The Abu Ghraib prosecutions are a good example.

The people who would have to worry, if war crimes were found to have been committed, would be those at the top of the command structure who crafted policies that were illegal and ordered them carried out — or who turned a blind eye to atrocities.

“Those are the ones,” said Mr. Horton, “who are vulnerable.”
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