On October 17, 2006 the U.S. president, in accordance with every legal form and procedure, signed into law the “Military Commissions Act of 2006” – also known as the “Torture Bill” – and thus made legitimate much of what the administration had been doing all along. Stripped to its essentials and focusing on the worst, the law permits the federal government to:
Yet a hasty reading of the Act gives the impression that it outlaws torture. And so it does, in a way. The catch is that a sly paragraph defines torture, when perpetrated by the U.S. government, vaguely – and substantially out of existence. We elaborate below.
Arrest and detain any non-U.S. citizen whom administration officials label an “enemy combatant.” 
Do this off the battlefield and on U.S. soil.
Without giving the detainee access to a public court.
Torture the detainee.
Torture was illegal before the Act, though the administration scoffed at the law. Now there is not much law to scoff at. Far from outlawing torture, the Act undoes torture’s illegality by whittling away at the idea of what constitutes torture.
The Act allows any interrogation method that is less severe than an extremely high, and vague, standard it calls “serious physical pain or suffering.” From page 28 of the Military Commissions Act:
... OFFENSE.—Any person subject to this chapter who commits an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another within his custody or control shall be punished ... as a military commission under this chapter may direct.If the torture – let’s call it by its right name – involves a not-so-substantial risk of death, serious physical pain, burns and physical disfigurement of a minor nature (major laceration and bruises no problemo), and minor permanent mental and physical impairment – the administration can now do it in the open.
... DEFINITIONS.—In this paragraph:
... The term ‘serious physical pain or suffering’ means bodily injury that involves—(I) a substantial risk of death;
(II) extreme physical pain;
(III) a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or
(IV) significant loss or impairment of the function of a bodily member, organ, or mental faculty.
The Act ensures against torture by defining it away. The Act raises the bar for what the government considers torture so the government can deny it is torturing people – while it is torturing them. 
In a White House interview on October 24, one week after the Act became law, Vice President Cheney said:
“We don’t torture. That’s not what we’re involved in. ... But the fact is, you can have a fairly robust interrogation program without torture ... .” Torture? No, that’s not what they’re involved in ! They don’t torture, they “robustly interrogate.”
A “fairly robust interrogation program” is a euphemism for institutionalized torture. Other nice phrases the government uses are “harsh interrogation,” “coercive interrogation,” “hostile interrogation,” “aggressive interrogation” and “enhanced interrogation techniques” – never torture. Cheney ignores the many prison accounts of head and body trauma, and of men robustly interrogated to death.
If the interrogator – who may enjoy his work – takes inflicting pain and suffering right up to the Act’s ill-defined limit, and in his enthusiasm – or bungling – goes over a bit, well, highway speedsters get an extra five miles-per-hour or so grace.
When we should never have gone down this road.
America has been going down it for several years now, but the authors of the Act knew how to deal with that. The Act makes its torture legal retroactively.  With this trick the administration’s prior crimes in this line – when torture was at least nominally illegal – are now, apparently, beyond prosecution. 
Doubtless one reason Bush and those in his administration wanted this Act was that they feared a saner future would prosecute them for their crimes. Such fear might have come to a head when the Supreme court, in Hamdan vs. Rumsfeld, November 2004, mandated that the executive branch must not indefinitely deny habeas corpus to prisoners at Guantánamo Bay. (Habeas corpus is a central principle of common law which requires that the government show the legal basis for holding a prisoner.) 
One last comment on the contents of the Military Commissions Act: It does not forbid or even mention “rendition,” whereby the CIA flies the detainee to a foreign country and has him tortured there instead of here.
We now compare what Ayn Rand said about the rôle intellectuals play in our culture with the rôle the so-called Ayn Rand Institute is playing now.
Ayn Rand says in her essay “For the New Intellectual” that the intellectuals – the men of words in the humanities – are the guardians of our culture. She explains how the intellectuals, from the time of the Industrial Revolution to modern times, betrayed that trust. As in an earlier age Attila the Hun got moral support from his resident witch doctor, so today’s dictators and would-be dictators get moral support from the intellectuals. She looks forward to an era when a new kind of intellectual will lead us out of the mess the earlier ones had created. A few quotes from her essay will help make this clear.
The intellectuals, she says, bungled their job:
“It was not the businessmen or the industrialists or the workers or the labor unions or the remnants of the feudal aristocracy that began the revolt against freedom and the demand for the return of the absolute state: it was the intellectuals. It was the alleged guardians of reason who brought mankind back to the rule of brute force.”
“And, paving the way for Attila [that is, the barbarians], the intellectuals are still repeating, not by conviction any longer, but by rote, that the growth of government power is not an abridgment of freedom ... that dictatorship is not dictatorship if nobody calls it by that abstract name – and that none of us can help it, anyway.”
What did the Ayn Rand Institute and its affiliates – our alleged New Intellectuals – have to say about the establishment of government torture and the other aspects of the Military Commissions Act that legalized Attila’s methods, during the congressional debate when public protest mattered the most? Keep in mind as you read the following that until last minute changes, the Act was even worse than what passed: it applied to U.S. citizens as well as foreigners.
Here is what the Ayn Rand Institute said in its countless Op-eds and Press Releases and Letters to the Editor:
In the Cheney interview mentioned above, after Cheney praised the administration’s “robust interrogation program” he said:
“And thanks to the leadership of the President now, and the action of the Congress, we have that authority, and we are able to continue [the] program.”Not to mention: Thanks to the Witch Doctors at the so-called Ayn Rand Institute.
How did ARI react when the Act passed and Bush signed it into law? Still there is nothing, with one exception. The one exception is by Robert Tracinski, writing in TIA Daily, which though not an official publication of ARI, was on our watch because Mr. Tracinski was a guest writer (*) and long time associate of ARI.
That Mr. Tracinski would approve of the Act comes as no surprise. Back during Hamdan vs. Rumsfeld when the Supreme Court found against Rumsfeld, he complained about the result in “Judge Upends Terrorist Prosecutions” TIA Daily November 9, 2004.
Now, when Bush signs the Military Commissions Act into law, Mr. Tracinski complains again – not against the Act, rather against the ensuing storm of protest. The protest was heard not only in the patriot/libertarian parts of the alternative media but in some quarters of the mainstream media as well.
In the TIA Daily for that day – October 17, 2006 (the issue however is misdated the 13th) – Mr. Tracinski praised the Act in his article “A Law for Unlawful Combatants.” He begins by summarizing the Hamdan vs. Rumsfeld decision, which was the springboard for the Military Commissions Act:
“... the Supreme Court’s Hamdan decision found that a terrorist captured by American intelligence forces could not be held at the Guantanamo Bay military base without due process.”We interrupt his jaundiced history. The Supreme Court’s decision applied to all the detainees, and no objective evidence existed against many if not most of them. The point of the Court’s decision was to ensure that those labeled terrorists really were terrorists. Mr. Tracinski continues:
“They further held that rules of procedure for any military trials conducted for the punishment of such a prisoner could not be written by an agency of the executive branch. They would have to be written by Congress. ... they held that terrorist detainees are legally entitled to the Geneva Conventions’ Common Article 3 prohibition against ‘outrages upon [the] personal dignity’ of prisoners of war ...”And he goes on to say that detainees are not so entitled, because
“the treaty only applies to the combatants of an enemy government captured in the uniform of their armed services.”So as far as outrages upon your person are concerned, no uniform and you’re out of luck. Mr. Tracinski prefaces some of these remarks with “As if there weren’t a war going on” and “Incredibly.” After a bit more of this he writes:
“After conferring with the president, Congress drew up procedures for military tribunals that would allow the use of secret evidence and allow methods of coerced interrogation, short of torture [yeah, right] that would probably [how about certainly] be considered illegal ‘humiliation’ [how about ‘torture’ – and without derogatory quotes] under the Geneva Conventions. Today the president signed that measure, the Military Commissions Act, into law.”Mr. Tracinski then reviews – or thinks he reviews – Senator Russ Feingold’s response to the Act. The trouble is, Mr. Tracinski inadvertently quotes and links to what Sen. Feingold said years earlier, on October 25, 2001, about another bill entirely.  However, what Sen. Feingold said then does more or less apply to the Military Commissions Act. We will go along with Mr. Tracinski’s mistake because we are reviewing this new intellectual’s reaction and beliefs.
“He [Sen. Feingold] compared the measure to ‘The Alien and Sedition Acts, the suspension of habeas corpus during the Civil War, the internment of Japanese-Americans, German-Americans, and Italian-Americans during World War II, the blacklisting of supposed communist sympathizers during the McCarthy era, and the surveillance and harassment of antiwar protesters, including Dr. Martin Luther King Jr., during the Vietnam War.’ He then went on to enumerate the many extra-judicial powers the law gives the president.As if the administration were not abusing the Act at the very time he was writing this ! As if the administration had not been abusing the content of the Act all along ! Mr. Tracinski tries to fit the reader with the same pair of blinders that he wears.
“Sen. Feingold describes the technical contents of the law accurately. His comments should be taken as a warning against any attempt to abuse the new law.”
“But his [Sen. Feingold’s] whole argument, like that of the Supreme Court, evades the de facto war in which the United States is now engaged.”War, that magic word, justifies everything. Mr. Tracinski goes on to consider the pitfalls of Congress declaring war, then writes:
“Yes, Congress should declare war. But even if they did, that would not answer Sen. Feingold’s complaint because it equates abuses of power like the FBI surveillance of Marin Luther King with the necessary war-fighting powers President Lincoln exercised—and President Bush needs to exercise.”! ! ! Lincoln not only suspended habeas corpus for Northerners and Southerners alike, he arrested and jailed Northern congressmen and newspapermen who opposed his policies.  And he should be Bush’s role model?
Criticizing these “new intellectuals” is really unnecessary. Just sit back and watch as each mounts the scaffold, loops the noose around his neck, and jumps.
Mr. Tracinski then quotes from a blog called The Belmont Club belonging to “Wretchard,” the nom de blog of one Richard Fernandez “of Filipino birth [and upbringing] and Australian citizenship” – as Mr. Fernandez says elsewhere. The entry Mr. Tracinski admiringly quotes is entitled “The double-bind” dated September 29, 2006. After some general remarks Mr. Fernandez writes:
“... on the subject of the detention and interrogation of terrorist suspects Democrats focused on the dangers to liberty and the possible inhumanity the bill presented without providing a plausible alternative path to how terrorists could be effectively questioned or put away.”All the Democrats need have said is that a non-confession is worth more than a tortured confession, and that someone can be “put away” – that is jailed – without torturing them.
Mr. Fernandez continues:
“This was a psychological nonstarter. Answering that ‘waterboarding’ was cruel to the question how do you get information to protect the public was to miss the point.”He misses the point. The point is Western civilization, and if one sets aside Western civilization the point is that waterboarding and other tortures of suspects do absolutely nothing to protect the public. I elaborate in Binswanger on Torture on this website. Mr. Fernandez continues:
“You can tell a man about to jump from a plane [that] his parachute is defective, but unless you offer [him] another [parachute] he’ll jump with the defective [one] rather than none at all.”Clever if illiterate, no? In other words, torture may not be so hot but gosh we must do something. Mr. Fernandez continues:
“A position largely based on negation has no depth.”Like the Bill of Rights, which is a string of negatives: The government may not do this to you and may not do that. Mr. Fernandez’s sound-bite might sound good, but look what the man is selling.
Elsewhere in his blog this Filipino/Australian endorses Alan Dershowitz’s plan for “torture warrants” for Americans. What amazes is that Mr. Tracinski felt he had to reach so far as this Third World nincompoop in order to find someone he agrees with.
The next day, October 18, perhaps in response to an outcry from his readers, Mr. Tracinski abruptly – and transiently – changes his tune. He writes of the Act:
“... this solution will create problems of its own.”and without further comment links to an interview conducted by Keith Olbermann, providing a brief quote. Too little too late. Mr. Tracinski then dropped the subject entirely – a bump and run.
And that’s what we have from ARI and its associates regarding the Military Commissions Act of 2006, one of the lowest points in U.S. history.