Monday 21st November 2005

While George W Bush thinks everything is just fine, Guantanamo and the abuse of terror suspects are dividing his cabinet and corroding his presidency. By Andrew Stephen

How civilised life in America really is. "In our system each individual is presumed innocent and entitled to due process and a fair trial," President Bush reminded us just hours after it was announced that Lewis "Scooter" Libby - Vice-President Dick Cheney's adviser on national security matters as well as his chief of staff - was to be charged with perjury, obstruction of justice and making false statements. Days later, Bush looked the world's media in the eye, after a five-day swing through Latin America, and declared: "We do not torture."

Bush lives in such a bubble these days, as removed from reality as Richard Nixon was in his final weeks as president, that I suspect he believes both statements to be true. It took his national security adviser, Stephen Hadley, to put him right on torture - or what people in the administration prefer to call "enhanced interrogation techniques". "The president has said that we are going to do whatever we do in accordance with the law," he said. But in practice, it is "difficult" for the administration, he went on, both to follow the president's guidance and to "discharge our responsibility to protect the American people from terrorist attack".

Even Bush's most loyal lieutenants are at each other's throats, and the issue beginning to divide them publicly is torture, with constitutional crises looming fast. Poor Hadley, an ultra-loyalist, can hardly contain his exasperation with his boss and increasingly sounds like a sorrowful father having to explain the words of a wayward, dim-witted son. And Cheney took advantage of Bush's absence in Latin America to drive in his motorcade up Capitol Hill to furiously lobby Republican congressmen and women over continuing to support America's right to torture, particularly in the network of "detention centres" that, we are told, the CIA is operating around the world, so that the US can carry out enhanced interrogations without being impeded by constitutional rights and laws and Geneva Conventions and tiresome things like that. Lining up behind Cheney, naturally, is the secretary of defence, Donald Rumsfeld.

But there is now an opposing flank in the administration, led by the secretary of state, Condoleezza Rice, and Rumsfeld's deputy, Gordon England. They argue that even fudged words of support for torture, such as Hadley's, are disastrous for America's image in the world, and that the Bush administration must ren-ounce it unreservedly.

The battle is even more ferocious just a step down the hierarchy: David Addington, Libby's successor as Cheney's chief of staff, left a Pentagon official "bruised and bloody" a few days ago because the draft of a Pentagon briefing paper used the same Euro-wimp words as the Geneva Conventions in defining torture.

Thus Condi and Rummy, to say nothing of Dick, are now at loggerheads. The White House, in the form of Karl Rove, is privately briefing that Cheney's influence is on the wane and that Rumsfeld will go soon anyway - but the truth, as all but Bush know, is that the administration's political and legal nightmares on torture and prisoner abuse are only just beginning.

Take Bush's words on Libby's entitlement to legal justice. It is taken for granted, certainly in the US but also in Britain, that the United States would never lock up its own citizens without due process and a fair trial. That is a bedrock constitutional right, as the Supreme Court has ruled. True, blind eyes may have been turned to the Abu Ghraib and Guantanamo abuses - but that is because the victims have been foreigners and the abuses carried out abroad. The British media widely reported that Tony Blair's proposal to hold suspects for 90 days without trial could never happen in the US, as the constitution would make it impossible.

Tell that to an American called Jose Padilla, who was arrested at O'Hare Airport in Chicago in May 2002 and who has been incarcerated ever since - without ever appearing in court, being charged with anything, or even being given a lawyer. The reason? Rumsfeld decreed him to be an "enemy combatant", and his rights as a US citizen have therefore been suspended indefinitely. Even Paul Wolfowitz, a month after Padilla's arrest, said administration claims that he was planning to nuke an unnamed American city amounted to "some fairly loose talk" - but unless Padilla is allowed his day in court we will never know.



So far, this case has caused little outrage even among Bush opponents, but the cynicism about faulty intelligence that has been so widespread in Britain is entering the American mainstream - and with it doubts about whether justice is being administered properly. This is resulting in a flurry of legal and political activity, all of it bad news for the Bush administration.

First, John McCain made a passionate plea to his fellow senators last month to outlaw torture and prisoner abuse of any kind. He was a forceful advocate, having been tortured himself as a prisoner of war in the "Hanoi Hilton" after his US warplane was shot down in Vietnam. "It's not about [terrorists], it's about us," he said. "The battle we're in is about the things we stand for and believe in and practise - and that is an observance of human rights, no matter how terrible our adversaries may be." Cheney lobbied senators against McCain's measure, but the Senate passed it, by 90-9.

When Bush flew to Argentina this month, however, Cheney went to work again. This time he sought to persuade senators that the CIA, at least, should be allowed to torture prisoners. Because of McCain's measure, he told them, interrogators would have their hands tied and be unable to obtain information vital to save American lives. Senator Lindsey Graham, a Republican former air force lawyer who had co-sponsored McCain's bill, promptly caved in and slipped an amendment into a $445bn military spending bill that removed the right of US courts to decide whether the government could hold foreign prisoners at camps such as Guantanamo. It passed by 49-42, though at the time of writing it seemed the terms would be watered down under a bipartisan compromise.

What is clear is that Cheney and the right have landed the administration in what could become a series of major constitutional crises. By that Senate vote, for example, politicians seemed to be doing something supposedly impossible under the constitution - overturning a Supreme Court ruling. In June 2004, the Supreme Court ruled in Rasul v Bush that the federal courts, and not Bush, had the right to rule on the "potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing". The recently retired judge Sandra Day O'Connor said that "a state of war is not a blank cheque for the president"; her hardline colleague Antonin Scalia, who like O'Connor was also appointed by Ronald Reagan, said: "If civil rights are to be curtailed during wartime, it must be done openly and democratically."

Cheney and Rumsfeld, at least, seem determined to press on regardless and to flout the law. Last Monday the Pentagon said that its first war crimes trial at Guantanamo - heard by a "military commission" with the right to impose the death penalty - would go ahead this month, despite an announcement by the Supreme Court that it is to rule on whether the president has the power to create such tribunals in the first place. For the moment, all Condoleezza Rice can do is damage limitation.

Support for Bush, meanwhile, is dropping precipitately. Republican congressmen are beginning to say that they don't want his help campaigning in next year's elections because he is a liability; a recent Gallup poll shows that fewer than half of all Americans approve of his so-called war on terror. The walls of his presidency are crumbling around him. But at least Scooter will get a fair trial.