Diversity, Inequality, and ISDS

By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law

Much ado has arisen in recent months about the investor-state dispute settlement provisions in the Trans-Pacific Partnership and the Transatlantic Trade and Investment Partnership international trade agreements being negotiated.

Sources one might look to are http://isdsblog.com/, Senator Elizabeth Warren in the Washington Post (http://www.washingtonpost.com/opinions/kill-the-dispute-settlement-language-in-the-trans-pacific-partnership/2015/02/25/ec7705a2-bd1e-11e4-b274-e5209a3bc9a9_story.html), an extended segment on John Oliver’s program Last Week Tonight (https://www.youtube.com/watch?v=6UsHHOCH4q8), and an Alliance for Justice brief description of the issue and the letter at http://org2.salsalabs.com/o/6539/p/dia/action3/common/public/?action_KEY=19342.

Said multilateral trade agreements are inserted into a rich tapestry of bilateral investment treaties, regional one’s (NAFTA as an example), and the overarching world trade system under the auspices of the World Trade Organization.  A common feature of all these types of agreements is to have a dispute settlement mechanism between the state and the investor (for the bilateral and regional) and between states at the World Trade Organization level. These dispute settlement mechanisms are only part of the broader realm of international dispute resolution that includes well-known international commercial arbitration in which contracting parties have agreed to arbitration as a means of settlement of the disputes that may arise under a given contract.  State and state-owned enterprises have a long history of being parties to such international commercial arbitration.  And these dispute settlement mechanisms have an even broader history in domestic settings, particularly in countries like the United States in which subject matter inarbitrability is extremely narrow.

The common dimension of all of these mechanisms is that there is a panel – appointed by the parties to the dispute or a third party – that hears the case and renders its award, report, or whatever is the relevant final product under the dispute settlement mechanism that has been chosen.

Who are the people in these panels?  How do they get on the lists or other mechanisms that permit them to be on these panels?  Who are the people who represent these parties in these cases?  As all of these processes are by their conception confidential processes, knowing who are these persons – as contrasted with identifying the judges in any given country – is very difficult to know.  This anonymity nags at me in this whole super-structure.




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Arkansas Muslim Prisoner Wins Case, Adds to Legal Legacy

Muhammad  By SpearIt

Last week, the Supreme Court struck down an Arkansas prison policy that restricted inmates from sporting a half-inch beard.  The prisoner-plaintiff, Gregory Holt, aka Abdul Maalik Muhammad, is particularly interesting since he confounds cultural stereotypes, looking more like someone from Duck Dynasty or the movie Deliverance than anything Muslim; as a white inmate, he is a statistical minority in a place where whites are only a tiny fraction of Muslim followers, making him a double-minority of sorts, and perhaps the perfect plaintiff.

This lawsuit pitted Muhammad’s sincere religious beliefs in growing a beard against the claim that beards on inmates breach institutional security.  In unanimously striking the policy, a skeptical court found little merit in the prison’s concerns, and included statements of a magistrate judge who spoke to Muhammad: “I look at your particular circumstance and I say, you know, it’s almost preposterous to think that you could hide contraband in your beard.”  Even with such skepticism, this judge ultimately deferred the matter to prison authorities.

Muhammad’s victory is more than personal, and holds deeper symbolic meaning.  It takes place in a state that has played home to ongoing anti-Muslim controversies, which include the creation of a “Muslim-free” shooting range and statements from Arkansas senator Tom Cotton, who has speculated publically that ISIS and Mexican drug cartels could combine to attack Arkansas.

Hence the case is a comeuppance of sorts for Arkansas polity, but it is also another footnote in the ongoing saga of Muslims suing for prisoners’ rights.  Such legal efforts have advanced the rights of Muslim prisoners, followers of other faiths, and the general prison population.

This rich history tells how Muslim prisoners have used courts to deal with grievances; the historical snapshot, much like Muhammad’s mugshot, undermines stereotypes.  Specifically, it tempers fears about Muslim radicalization in prison, and instead reveals Muslims as a normalizing influence in prison for decades—a legacy of using the law to fight their battles.

Muslim prison-litigation began in the 1960s with the legal birth of Islam in prison.  In the earliest lawsuits, Muslim prisoners struggled to have Islam recognized as an official religion and to have Muslims granted standing to sue in federal court.  From these early victories, Muslim litigants would go on to shape law and policy and become the most forceful advocates for prisoners’ rights.

Like victories of the past, the decision in favor of Muhammad has potential to benefit more than simply Muslim prisoners.  The case could potentially influence pending court decisions and litigation strategies involving other religious groups.  Other prisoner plaintiffs will be able to rely on this case, including Jewish kosher cases in the states of Florida and Texas, as well as lawsuits outside of prison, including plaintiffs in religious land use cases, and Native American plaintiffs seeking access to eagle feathers.

Perhaps more than anything, this case is a wake-up call for prison officials.  It is notice that accommodating religious inmates should be taken seriously.  The Supreme Court has trended toward expanding religious freedoms, most recently last year in Burwell v. Hobby Lobby, which exempted certain companies from contraception coverage based on religious conviction.  Muhammad’s case paves the way for further litigation both in and outside of prison.  Government policymaking should duly take note.

Although in recent decades, prisons have been able to implement practically any policy in the name of security, this case may signal an end to the age of deference.  Looking forward, prisons will likely be forced to offer stronger support for impinging on an inmate’s free exercise of religion.  More courts may become emboldened to call on prisons to justify their own policies; more importantly, they might start a tradition of their own in calling out bluffs made in the name of government interests.

This article was published by The Islamic Monthly on 1/26/2015. Read it here.

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Restore Pell Grants for Prisoners

prison edBy SpearIt


Last month the Department of Education clarified the eligibility rules for Federal Pell Grant funding. Although Congress barred Pell Grants in 1994 for those confined in “Federal or State Penal institutions,” according to the clarification, these are distinct from “juvenile justice facilities” and “local and county jails, penitentiaries, and correctional facilities.” Although, this ruling will effectively increase the number of incarcerated individuals applying for and receiving Pell funding, the vast majority remain ineligible.

Prisoners first became eligible for federal funding in 1972, when federal legislation directly allowed for imprisoned individuals to apply for Pell Grants. The push to include prisoners for Pell eligibility was consistent with the grant’s design to assist economically challenged Americans work toward post-secondary study and training. For over two decades, prisoners were treated as a part of the economic underclass in America.

Times would drastically change as a result of the new law.  Figures show that in the few years prior to the 1994 legislation, there were several hundred college programs in prison, almost all of which would disappear overnight. Today, the situation is in survival mode with only about two dozen programs offering in-person instruction.

The decimated infrastructure led to a crisis in post-secondary education in prison. The blow worked against already low levels of education behind bars, such that 41 percent of prison and jail inmates in 2003 had not completed high school and more recent data suggesting that over 70 percent of all inmates in U.S. prisons and jails cannot read above the fourth-grade level, with 60 percent of all inmates being functionally illiterate.

Unlike the devastating effects on prison education, the law’s penal outcomes are less certain. There is little doubt that high recidivism rates across the country continue to impact public safety negatively with new offenses and new social harms. Moreover, despite being touted as a cost-saving measure, it is not clear if barring Pell funding is cost effective. With nearly 52 billion spent annually on corrections nationwide, a chunk of which goes to processing, housing, and releasing recidivist offenders, the cost is not small. On the contrary, education appears a more savvy investment, with one government study showing that for every dollar spent on education, there was a return of more than two dollars in reduced prison costs.

Restoring Pell funding brings the added bonus of enhancing religious programming, study, and training. The expansion is a windfall for prisons since involvement in religion is associated with positive outcomes for prisoners, including improved self-esteem, discipline, and helping individuals exit gang life.

By extension, more formal religious study provides opportunities for better prison management. For example, over the last decade there has been a shortage of Muslim chaplains at both state and federal levels. The lack of religious leadership has had undesirable consequences, including unorthodox leadership and practices, and increased prisoner radicalization. With Pell funding, divinity and seminary schools could develop prison curricula to fill some of the gaps in chaplaincy. As formal religious education has been likened to an antidote for extremism, it functions as a form of risk management.

Restoring Pell funding will also advance racial justice. As African American and Latinos are disproportionately represented in prison, the elimination of Pell funding means greater loss for these specific groups. This point was not lost on the NAACP in 2009 when it urged Congress to restore prisoner eligibility.

Restoring funding for prisoners would bring the grant program closer to the original intent of Senator Pell himself, who championed the cause of educational opportunity for all. Pell’s daughter, Dallas Pell, has also urged Congress to honor her father’s legacy by restoring funding to all prisoners, which she writes, “strengthens underserved communities as formerly incarcerated people are most often released into communities that lack the capacity to provide them with employment or reentry assistance.”

With 700,000 individuals exiting prison each year, Pell funding is needed now more than ever for the greatest challenge for anyone released from prison–finding gainful employment. Toward this end, education and vocational training helps inmates enhance their marketability, with degrees, certificates, and skills. Congress must re-harness education’s power in prison by restoring Pell funding to all who qualify under existing need-based criteria. More education in prison will advance both penal and public interests, and more importantly, will help prevent further crime and victimization.

This article was originally published by Huffington Post on 1/16/15.  Read it here.

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Did Religious Profiling Allow Paris Terrorists to Proceed Undetected?

By Sahar Aziz

Terrorism aims to invoke mass havoc and fear. Recent attacks in Western cities involved bombings of public buildings, transportation, and marathons, or mass shootings of civilians, conducted by amateur lone wolves.

For this reason the calculated assassination of France’s best satirists raises serious concerns about the focus of French counterterrorism strategy. As they enlarge the blanket scrutiny of Muslims without individualized suspicion, French law enforcement is more likely to waste resources investigating innocent people. Meanwhile, the guilty have more opportunity to plot undetected.

That French officials were unaware of this premeditated murder plot, notwithstanding numerous threats to Charlie Hebdo cartoonists over the years, evinces a breakdown in anti-terrorism enforcement. Specifically, one cannot help but wonder if the conflation of Muslims with terrorism may have distracted law enforcement from focusing on the predicate acts leading up to these murders.

Terrorism comes in various forms, ranging from lone wolves to militant groups, all in pursuit of a violent political agenda. In the United States, known attempted terrorist attacks by perpetrators identifying as Muslim have been lone wolves, either acting alone or caught in an FBI sting operation. Other than the 9/11 attacks, no known plots were attempted by organized and trained militant groups. Had that been the case, their communications and preparatory acts would have been more likely detected by law enforcement and intelligence agencies. This is why the French attacks are so peculiar.

In the post-9/11 era, nearly every Western nation has ratcheted up its intelligence capabilities, expanded its counterterrorism forces, and adopted aggressive anti-terrorism laws, often at the expense of civil liberties. France is no exception.

French counterterrorism law mirrors the U.S.’s broad RICO statute by authorizing arrest and prosecution of any individual who plays a role, however minimal or remote, in a terrorist plot. In addition, France has constructed a robust surveillance network that targets French Muslims in counterterrorism. Indeed, the absence of post-9/11 terrorist attacks for nearly 10 years in France was attributed to its experienced and well-established counterterrorism apparatus and expansive anti-terrorism laws, making the Charlie Hebdo assassinations all the more alarming.

The sense that this was a sophisticated assassination is bolstered by witness accounts that the shooters called out the names of the cartoonists as they shot them methodically. Experts have also noted that the killings were executed more like a military operation than the amateur plots in the London subway and at the Boston marathon and the attempted Christmas Day bombing in Detroit.

All of this raises the question of why this well-planned crime was not detected by France’s experienced intelligence community. Either the gunmen outsmarted law enforcement or France’s counterterrorism strategies have fallen prey to the trappings of religious and ethnic profiling. In its attempts to determine if the nearly 1,000 French citizens who joined ISIS have returned, France should look to articulable suspicions based on predicate acts of a crime rather than cast a wide net on France’s more than 2 million Muslims.

Time and again, law-enforcement experts and civil-liberties advocates have warned about the perils of profiling based on religion or ethnicity. It goes without saying that it is morally wrong to impose guilt on individuals who happen to share the same immutable characteristics or religious faith as a criminal. But it also poses serious dangers to society.

No doubt the murders of the Charlie Hebdo cartoonists were a cowardly and terrorist act. But the fact that they were planned by well-trained gunmen undetected by law enforcement, notwithstanding France’s aggressive surveillance of its Muslim communities and expansive anti-terrorism laws, shows something is amiss.

In determining what went wrong, the French government would be well advised to reconsider its use of ethnic and religious profiling as a counterterrorism tool. Terrorism can be prevented. Focusing on illegal activity rather than religious practices is the first step.

This article was originally published on Huffington Post on 1/9/15.  Read it here.

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Prisons, Muslim Memory & the Making of a Terrorist

abu By SpearIt

The media spotlight on Cherif Kouachi’s life rekindles questions about prisons and radicalization. As an alleged participant of the Charlie Hebdo attacks, Kouachi has seemingly led many lives. In one incarnation, he was a marijuana-smoking rapper. Later, he would turn jihadi and find himself jailed, awaiting conviction for jihadist crimes.

Over a decade of research on Islam in prison, I have concentrated on religious conversion and prisoner radicalization – this offers unique insight to Kouachi’s story.

One urgent question is whether jail had anything to do with the attack. Paradoxically, the answer is no – and yes.

Muslim prisoners overrepresented in French jails

For France, Kouachi’s case calls for a close look at its prisons. With a prison population that is, reportedly, 60% Muslim, it is worthwhile to examine what exactly jail had to do with his radicalization.

First, Kouachi’s case suggests imprisonment was the key to explaining what leads an individual to extremism. In his case, however, time spent in jail was the effect of extreme behavior, not the cause of it; for him, jail was merely a pit stop on a journey that started long before.

Others, in contrast, might not participate in extremist activities until well after their release. In such cases, the prison’s impact is nominal. This reality cautions against characterizing an extremist as a case of “prisoner radicalization” just because he spent time in jail.

American misperceptions of radicalization

Such misunderstandings haunt debates in America. For years, top lawmakers have politicized the issue.  Representative Peter King has been known to label cases as “prisoner radicalization” with merely proof of incarceration.

In similar fashion, one scholarly book, The Spectacular Few: Prisoner Radicalization and the Evolving Terrorist Threat, characterizes Mahatma Gandhi, Nelson Mandela, and Adolf Hitler as radicalized prisoners. However, as one critique notes, all three were first-order radicals before imprisonment.

Even the book’s cornerstone study of prisoner radicalization falls prey to this generalization. In this plot, Keven Lamar James planned attacks against Jewish and military targets from his prison cell. Yet James was no stranger to extremes: he carried guns, was in and out of detention facilities, was active in a criminal gang, and convicted of robbery. In his life, prison appears as only incidental to a life of extreme behavior.

Kouachi parallels James in the way he adopted extremism before his own jailing; it is different, however, since animosity toward imprisonment did factor into his radicalization. As one report notes, Kouachi’s path to terrorism took a serious turn after he saw pictures and read accounts of the Abu-Ghraib prison scandal in Iraq. If true, his reaction to the abuse shows that prisons can indeed radicalize, even absent personal experience.

This case presents a different shade of prison radical. As Kouachi was not radicalized in jail, he demonstrates the importance of pre-prison experiences. The fact that his life took a sinister turn because of the mistreatment of prisoners elsewhere cannot be overlooked. His story keeps us vigilant of a prison’s power to exacerbate, rather than alleviate, extremism.

The Muslim experience in France

Moving forward, French officials must avoid the mistakes of their American counterparts. American politicians have been quick to blame foreigners for fomenting prisoner radicalization. This view, however, ignores what Muslims themselves see as the problem: racial and religious discrimination, unfairness in criminal justice, and anti-Muslim foreign policy.

Rather than successful preaching by al-Qaeda, domestic problems are the main catalyst of prisoner radicalization. Americans need no help from abroad – there is plenty of fuel for radicalization at home.

For France and its disproportionately Muslim prison population, the point is worth pondering. With prisons playing such a huge role in the life of Muslims, it is likely to be a locus of conflict for years to come.

The French government’s ability to manage its situation will depend on its grasp of the problem. Understanding prisoner radicalization is always a function of two parties: the watched and the watchers. Any honest assessment of the problem must involve both, lest we ignore what prisons like Abu-Ghraib mean to Muslim memory.

This article was originally published in The Conversation on 1/9/15.  Read it here.

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Review of Drones & Targeted Killing, edited by Marjorie Cohn


Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues
(2014 Olive Branch Press, 296 pages)
Edited by Marjorie Cohn

Shining Light Into the Dark World of US Drone Warfare

By Charles Sevilla, Los Angeles Daily Journal, Book Review

This book is a compilation of fifteen authors’ views on U.S. drone killing policy. Drones are automated, pilotless flying machines capable of seeking out and assassinating individuals or groups anywhere. U.S. drone strikes have been ongoing for over a decade and their use has steadily escalated. Approved at the highest levels of government, they are justified as legal and effective measures to defend the homeland. This book questions both premises.

The contributing authors are human rights and political activists, policy wonks, lawyers, legal scholars, a philosopher, a journalist and a sociologist, all of whom examine different aspects of U.S. drone policy. These are well-written, compelling and well-documented essays. Edited by Thomas Jefferson School of Law professor and author, Marjorie Cohn, who writes the first chapter, this is an illuminating insight into the opaque world of drone warfare.

The writers discuss so many issues, it is hard to know where to begin. We start with Archbishop Desmond Tutu, who in the Foreword, notes, “Obama’s drones have been killing thousands of people with no due process at all.” He castigates U.S. “exceptionalism” as our justification for killing others with impunity and without legal authority. Exceptionalism is the outlandish, jingoist notion that we are better than everyone else.

I had not confronted the nasty questions about drone killing until I read this book. What follows is my takeaway. One reason many, like myself, have been largely unaware of, or insensitive to, what our drones are doing is that the government keeps as quiet as possible about the process (the proverbial lack of transparency) so that the public is kept mostly unaware. We are left to guess as to exactly how many people have been drone-killed, how many of the dead were listed as the targets of approved strikes, and the numbers of innocents killed in the process. Professor Cohn writes that of the estimated 3,000 killed by drones, the majority were neither al-Qaeda nor Taliban leaders. Most were low-level insurgents rising up against their own governments rather than taking part in an international terrorist plot. A new study published in The Guardian finds that our drone strikes killed 1,147 people in an effort to kill 41 (a ratio of 28/1).

The rest of the dead are deemed “collateral damage,” the euphemism for those people who were in the wrong place at the wrong time. Two writers, Medea Benjamin and Alice K. Ross, document the civilian casualties of drone strikes. This is not easy given the remote and hostile tribal regions where the bombs drop and because the U.S. isn’t talking. But there are the more horrendous documented cases that can’t be ignored, including a 2009 cruise missile strike in Yemen which hit a tented camp in al-Majala, reportedly killing 58 people including 40 civilians, or the Hellfire missile launched at a tribal town council meeting (a jirga) in western Pakistan which wiped out 42 people including the most respected elders of the community.

One learns of the types of drone targets: individual and “signature” strikes. The latter, a form of mass killing, occurs when the intelligence assessment is that what is being seen by drone video and other asset intelligence is a “suspicious compound in areas controlled by militants.” This leads to drone bombing of the location with the hope that it’s not a wedding party, town meeting or other innocent congregation. We also learn of the” double tap,” where a bomb is dropped and then, after a suitable delay, another is sent to the location to get the rescuers.

All of these deaths raise a paramount question: are we doing more harm than good? Are we diminishing the terrorist threat against us? Or are we increasing it multi-fold by enraging families, friends and communities by this killing from the sky? Do we think these people’s hearts and minds will ever favor the United States after their villages are bombed and loved ones killed? Obviously not. We use them because they are deemed effective in the short run to “degrade” enemy leadership. We use them because we can.

Drone use for targeted killing is without mainstream media questioning or public debate so political blowback to the government is inconsequential. On the other hand, the military/CIA pressure to employ them is irresistible.

One cannot deny that terrorists pose a lethal threat to us. Fewer Americans die with drone use than if we had “boots on the ground” approach to ridding the world of terrorists who threaten us. This, and the abiding fear of another 9/11 attack, support their continued use. But in this, there is no national sacrifice, no moral commitment and no responsibility for what we do. Perpetual drone war can thus be easily employed abroad and accepted or ignored at home.

This book raises serious questions about the efficacy of the program. It surely is a failure if by killing one suspected terrorist, five or ten more spring up in outrage. Then there is the issue of killing U.S. citizens in these presidentially approved attacks. The most notable was the assassination of American citizen Anwar Al-Aulaqi in Yemen, and then three weeks later, his 16-year-old son along with five other children. Only after the government said U.S. citizens could be and would be targeted (as in this case) did the issue of drone assassinations raise the hackles of a few politicians and commentators. But mostly, the issue is not discussed. A lawsuit by an Al-Aulaqi family member was thrown out of court. Drone assassinations, at least for the U.S. public, remain under the radar. The beat goes on.

In addition to questioning the efficacy of drone killings, there is the issue of legality. We are a nation of laws. The idea of the President sitting down with his top adviser to go over an approved kill list with no more boundaries on their deployment than those they themselves make up is disturbing to say the least. Drones are approved for use not only in war theaters of Iraq and Afghanistan, but also in other nations like Pakistan, Yemen, Somalia and now Syria. We have self-arrogated the authority to drone bomb people to death in any nation on the face of the earth. Compliance with international law and the rules of war appears dubious at best.

Wielding such lethality poses a host of unprecedented legal questions. In May 2013, President Obama made an important speech addressing the legality of his use of drones. A 2010 DOJ white paper leaked in 2013 provided legal rationales for the killing of U.S. citizens like Al-Aulaqi. It is a thoroughly unconvincing document. The national and international legal norms documented here contradict the authority of one country to invade the airspace of another to kill its citizens absent the threat of imminent attack. These laws have not posed any constraint on U.S. drone killing. Might makes right.

The United States published a policy for its lethal drone use in May 2013. These are the U.S. standards for drone killing: a basis for lethal force exists; it involves a “continuing, imminent threat to U.S. persons”; there is a “near certainty” the terrorist target is present where the bomb will be sent and that non-combatants will not be injured or killed; capture is not feasible; the local government authorities will not address the threat; there is no other reasonable alternative; and the U.S. will respect national sovereignty and international law in the process.

The polite response to the above is that the documented accounts of drone killings do not reflect compliance. In fact, as I read these government procedures requiring compliance with U.S. and international law, I was reminded of what Sir Francis Bacon said about great power compliance with law: “laws are like cobwebs, where the small flies are caught and the great break through.” Our policies today are fragile strands incapable of holding back the hydraulic pressures of the CIA and military to erase perceived terrorists with the push of a button.

International legal scholar Richard Falk, who writes that drones are more dangerous that nuclear weapons, says that with the rise of non-state political actors having international agendas (terrorists), the use of drones is too attractive an alternative to ever expect cessation. The best we can hope for are agreed-upon guidelines. That will not happen in the foreseeable future. The United States and a few other Western nations have a monopoly on militarized drones and there is little push to force internationally respected regulation.

President Obama has quoted James Madison who wrote: “No nation could preserve its freedom in the midst of continual warfare.” Drones make easier never-ending wars against terrorists. We may now confidently look forward to a Terminator-like future with flying robots battling each other in efforts to drop their lethality upon humanity. What impact this will have on us is anyone’s guess, but I don’t think it will be good.

This is a thought provoking, informative book on an important issue. It is well worth reading, sharing and discussing.

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Torture Report Confirms Team Bush War Crimes

By Marjorie Cohn

Reading the 499-page torture report just released by the Senate Select Committee on Intelligence was a disgusting experience. Even after many years of writing books and articles about the Bush torture policy, I was unprepared for the atrocious pattern of crimes our government committed against other human beings in our name.

One of the most hideous techniques the CIA plied on detainees was called “rectal rehydration” or “rectal feeding” without medical necessity – a sanitized description of rape by a foreign object. A concoction of pureed “hummus, pasta with sauce, nuts and raisins” was forced into the rectum of one detainee. Another was subjected to “rectal rehydration” to establish the interrogator’s “total control over the detainee.” This constitutes illegal, cruel, inhuman and degrading treatment and a humiliating outrage upon personal dignity.

Several detainees were waterboarded, a technique whereby water is poured into the nose and mouth to cause the victim to think he’s drowning. One detainee in CIA custody was tortured on the waterboard 183 times; another was waterboarded 83 times. Waterboarding has long been considered torture, which is a war crime. Indeed, the United States hung Japanese military leaders for the war crime of torture after World War II.

Other “enhanced interrogation techniques” (EIT) included being slammed into walls, hung from the ceiling, kept in total darkness, deprived of sleep – sometimes with forced standing – for up to seven and one-half days, forced to stand on broken limbs for hours on end, threatened with mock execution, confined in a coffin-like box for 11 days, bathed in ice water, dressed in diapers. One detainee “literally looked like a dog that had been kenneled.”

The executive summary of the torture report was made public, but the 6,700-page report remains classified. The summary depicts the CIA at best, as keystone cops, at worst, as pathological, lying, sadistic war criminals. The CIA lied repeatedly about the effectiveness of the torture and cruel treatment. Interrogations of detainees were much more brutal than the CIA represented to government officials and the American public.

Bush’s CIA directors George Tenet, Porter Goss and Michael Hayden should be charged with crimes, along with their minions who carried out the torture.

Obama Violates Constitutional Duty

In light of the gruesome revelations in the torture report, it is high time President Barack Obama fulfilled his constitutional duty to enforce the law. The US Constitution states the president ”shall take care that the laws are faithfully executed.” Yet Obama refuses to sanction prosecutions of those responsible for the torture.

The report documents torture and cruel, inhuman, and degrading treatment, all of which violate US and international law. The War Crimes Act punishes torture as a war crime. The Torture Statute (Statute) provides that whoever “outside the United States” commits or attempts to commit torture shall be imprisoned for not more than 20 years “and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.”

The statute defines torture as an “act intended to inflict severe physical or mental pain or suffering upon another person within his custody or physical control.”

When the United States ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Geneva Conventions, we promised to prosecute or extradite those who commit or are complicit in the commission of torture. A ratified treaty is part of US law under the Constitution’s Supremacy Clause. Yet the Obama administration persists in its refusal to bring the culprits to justice.

On January 11, 2009, nine days before Obama was sworn into office, George Stephanopoulos of ABC News confronted the newly elected president with the “most popular question on your own website, change.gov“- whether Obama would investigate torture by members of the Bush administration. Obama responded:

“I don’t believe that anybody is above the law. On the other hand, I also have a belief that we need to look forward, as opposed to looking backward . . . At the CIA, you’ve got extraordinarily talented people who are working very hard to keep Americans safe. I don’t want them to suddenly feel like they’ve got to spend all their time looking over their shoulders, lawyering up . . . ”

Now we know that many of those people at the CIA were using their extraordinary talents to devise new and more horrific ways to torture, humiliate, degrade and mistreat the people under their control.

To his credit, shortly after he was inaugurated, Obama signed an executive order banning torture. But hunger strikers at Guantánamo are still force-fed, a practice that violates the Torture Convention, according to the UN Committee Against Torture (CAT).

In 2009, US Attorney General Eric Holder ordered an investigation headed by veteran prosecutor Assistant US Attorney John Durham. But, two years later, Holder announced that his office would investigate only the deaths of Gul Rahman and Manadel al-Jamadi, who died while in CIA custody. Holder said that the US Department of Justice had “determined that an expanded criminal investigation of the remaining matters is not warranted.” With that decision, Holder made clear that no one would be held accountable for the torture and abuse except possibly for the deaths of Rahman and al-Jamadi.

Ultimately, the Obama administration gave a free pass to those responsible for the two deaths. Rahman froze to death in 2002, after being stripped and shackled to a cold cement floor in the secret Afghan prison known as the Salt Pit. Al-Jamadi died after he was suspended from the ceiling by his wrists, which were bound behind his back. Military police officer Tony Diaz, who was present during al-Jamadi’s torture, said that blood gushed from his mouth like “a faucet had turned on” when he was lowered to the ground. A military autopsy determined that al-Jamadi’s death was a homicide.

Nevertheless, Holder said that “based on the fully developed factual record concerning the two deaths, the department has declined prosecution because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt.”

Torture is Who They Are

After the report was made public, the White House issued a statement calling the CIA interrogation program “harsh” and the treatment “troubling” – a study in understatement. Obama said that torture “is contrary to who we are.”

But torture is who President George W. Bush, Vice President Dick Cheney, Defense Secretary Donald Rumsfeld and Secretary of State Condoleezza Rice are. Under the well-established doctrine of command responsibility, commanders are liable for war crimes if they knew, or should have known, their subordinates would commit them and they did nothing to stop or prevent it.

In 2008, ABC News reported that the National Security Council Principals Committee consisting of Cheney, Rice, Rumsfeld, Tenet and Ashcroft met in the White House and micromanaged the torture of terrorism suspects by approving specific torture techniques such as waterboarding. Bush admitted in his 2010 memoir that he authorized waterboarding. Cheney, Rice and Yoo have made similar admissions.

Indeed, Cheney recently admitted on Fox News that Bush “was in fact an integral part of the interrogation program, and he had to approve it.” Cheney added, “We did discuss the techniques. There was no effort on our part to keep him from that.” Karl Rove told Fox News that Bush was “intimately involved in the decision” to use the EIT. Rove said Bush “was presented, I believe, 12 techniques, he authorized the use of 10 of them, including waterboarding.”

Bush, Cheney, Rumsfeld and Rice should be should be prosecuted for their crimes.

The Senate report contains example after example of why “the use of the CIA’s enhanced interrogation techniques was not an effective means of obtaining accurate information or gaining detainee cooperation.” It says: “Multiple CIA detainees fabricated information, resulting in faulty intelligence . . . on critical intelligence issues including the terrorist threats which the CIA identified as its highest priorities.” Yet the CIA continually lied that the EIT “saved lives.”

The Legal Mercenaries Should Be Prosecuted

The report says the Department of Justice’s (DOJ) Office of Legal Counsel (OLC) relied on the CIA’s numerous misrepresentations when crafting OLC memos authorizing the techniques.

But the report gives OLC lawyers, including Deputy Assistant US Attorney General John Yoo (now a law professor at Berkeley) and Assistant Attorney General Jay Bybee (now a federal appellate court judge), free passes by failing to connect the dots leading to their criminal responsibility as war criminals.

The OLC’s infamous “torture memos” contain twisted legal reasoning that purported to define torture more narrowly than US law allows. The memos advised high Bush officials how to avoid criminal liability under the War Crimes Act.

Yoo, Bybee and company knew very well that the techniques the CIA sought to employ were illegal. Their August 1, 2002, memo advised that attention grasp, walling, facial hold, facial slap (insult slap), cramped confinement box and the waterboard passed legal muster under the act. They knew these techniques constitute torture or cruel, inhuman or degrading treatment, in violation of the Torture Statute, and the Torture Convention.

The Torture Convention is unequivocal: ”No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.” In light of that clear prohibition, the OLC lawyers knew that “necessity” and “self-defense” are not defenses to torture. Whether the CIA was being forthright about the necessity for, or effectiveness of, the techniques was irrelevant to the faulty legal analysis in the torture memos.

Moreover, after the report was released, Cheney told The New York Times: “The program was authorized. The agency did not want to proceed without authorization, and it was also reviewed legally by the Justice Department before they undertook the program.”

Bush’s attorneys general, Alberto Gonzales, John Ashcroft and Michael Mukasey, who oversaw the DOJ, should be criminally charged, together with the OLC’s legal mercenaries.

The report also fails to connect the dots to the Pentagon. In December 2002, Rumsfeld approved interrogation techniques that included the use of dogs, hooding, stress positions, isolation for up to 30 days, 20-hour interrogations, deprivation of light and sound, using scenarios to convince the detainee that death or severely painful consequences are imminent for him and/or his family, and using a wet towel and dripping water to induce the misperception of suffocation.

And the report gives short shrift to the extraordinary rendition program, where detainees were illegally sent to other countries to be tortured. The report refers to “renditions,” which are conducted with judicial process. But detainees were rendered to black sites in Syria, Libya and Egypt in order to avoid legal accountability.

No Impunity

“The individuals responsible for the criminal conspiracy revealed in [the Senate] report must be brought to justice and must face criminal penalties commensurate with the gravity of their crimes,” according to Ben Emmerson, the UN Special Rapporteur on Counter Terrorism and Human Rights. And the UN’s CAT said the Obama administration has failed to investigate the commission of torture and punish those responsible, including “persons in positions of command and those who provided legal cover to torture.”

A special prosecutor should be appointed to investigate those from the CIA, the DOJ, and the high officials of the Bush administration who violated, or aided and abetted the violation of, our laws banning torture and cruel, inhuman and degrading treatment. The full 6,700-page Senate report should be declassified.

But Obama said, “Rather than another reason to refight old arguments, I hope that today’s report can help us leave these techniques where they belong – in the past.” Yes, these crimes were committed in the past. Crimes are always prosecuted after they are committed. Obama should be reminded of his constitutional duty to enforce the law.

If we don’t bring the offenders to justice, they could eventually get their due when other countries prosecute them under “universal jurisdiction.” Some crimes are so atrocious that countries can punish foreign nationals, the way Israel tried, convicted and executed Adolph Eichmann for his crimes during the Holocaust, even though they had no direct connection to Israel. Emmerson also said, “Torture is a crime of universal jurisdiction. The perpetrators may be prosecuted by any other country they may travel to.”

The following grave breaches of the Geneva Conventions constitute war crimes punishable under the Rome Statute of the International Criminal Court (ICC), when committed as part of a plan or policy: torture, willful killing, inhuman treatment, and willfully causing great suffering or serious injury to body or health. The Senate report documented instances of willful killing (death); great suffering (hysterical, asking to die, attempts at self harm); and serious injuries (placed on life support, hallucinations) caused by the EIT. Yoo admitted in his 2006 book that the denial of Geneva protections and coercive interrogation “policies were part of a common, unifying approach to the war on terrorism.”

Although the United States is not a party to the ICC, other countries could prosecute US nationals under universal jurisdiction for the core crimes in the Rome Statute.

Obama declared, “Hopefully, we don’t do it again.” But Obama’s hopeful sentiments won’t do the trick. The only way to prevent others from using torture and cruel treatment in the future is to bring those responsible to justice. We must send a message to would-be torturers that they will not enjoy impunity for their crimes. Torture has no statute of limitations.

In light of the torture report, the responsibility for the US targeted killing program – by drones and manned bombers – should be removed from the CIA, which cannot be trusted with such awesome responsibility.

Indeed, the entire targeted killing program should be the subject of the next congressional report. Anticipating the imminent release of the torture report, Obama stated, “We did a whole lot of things that were right,” after September 11, “but we tortured some folks.”

The Bush administration did torture some folks. But we are still doing other things that are not right. The Obama administration has avoided adding detainees to the Guantánamo roster by illegally assassinating them without judicial process. For this, members of Team Obama should also find themselves as criminal defendants someday.

This article was published by Truthout on 12/15/14.  Read it here.

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(Part 1) Torture without torturers: On the rise and fall of the US political definition of torture as it pertains to US domestic criminal accountability for US official torture

By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law, Advocates for US Torture Prosecutions

This is my most recent first cut at trying to make sense of all that I have read and seen over the past ten years working for criminal prosecution in US domestic courts of senior officials and military leaders for torture.  It is about understanding a path to where we are today and for seeing the path going forward.  It will be in more than one part.

I. The putting in place of the Political Definition of Torture

A. Principle No. 1: Torture is murder only

On December 14, 2014, on Meet the Press former Vice President Dick Cheney gave his definition of torture as what happened to those people burned alive in the Twin Towers and Flight 93 on 9/11.  He went on to describe those events that day as murder.  Following the logic of his statements, for him, torture is murder.   That is his definition as a politician of torture or what might be called a political definition of torture.

This statement reminded me of language in the UNITED STATES SENATE ARMED SERVICES COMMITTEE, INQUIRY INTO THE TREATMENT OF DETAINEES IN U.S. CUSTODY 94-97 (2008), available at http://www.armed-services.senate.gov/imo/media/doc/Detainee-Report-Final_April-22-2009.pdf [hereinafter SENATE ARMED SERVICES COMMITTEE REPORT].  In that Senate Armed Service Committee Report, at pages 54-55 they quote CIA lawyer Jonathan Fredman in an October 2, 2002 meeting at Guantánamo Bay Military Base, Cuba.  In that quote, Jonathan Fredman defined torture as “…it is basically subject to perception. If the detainee dies you’re doing it wrong.”

That statement was made after the August 1, 2002 Bybee-Yoo Memo, which defined torture as

“Acts inflicting, and that are specifically intended to inflict, severe pain or suffering, whether mental or physical.  Those acts must be of an extreme nature to rise to the level of torture within the meaning of Section 2340A and the Convention.  We further conclude that certain acts may be cruel, inhuman, or degrading, but still not produce pain and suffering of the requisite intensity to fall within Section 2340A’s proscription against torture.  Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.  For purely mental pain or suffering to amount to torture under Section 2340, it must result in significant psychological harm of significant duration, e.g. lasting for months or even years.”

The operative logic of their interpretation of that August 1, 2002 OLC memo as expressed by Jonathan Fredman October 2, 2002 and by former President Dick Cheney on December 14, 2014 is that torture occurs only when someone is murdered.

Prior to the OLC memo being drafted and in the period from September 11, 2001 up to the August 1, 2002 people were captured and interrogated.  Given the emphasis today by those defending the torture program on the context post-9/11 and its influence on the American state actors, we can understand that from September 11, 2001 to the August 1, 2002 memo, the political definition of torture applicable was that it was only torture if you murdered the person detained.  Thus, the August 1, 2002 memo is best seen as legal cover for the application of the “torture is murder” definition of torture throughout the relevant period.

B. Principle No. 2: Anything less than torture is murder may be cruel inhuman and degrading treatment but the US has not international obligations because our UN CAT obligation does not reach that behavior abroad

Everything less than TORTURE IS ONLY MURDER would be defined as possibly cruel, inhuman and/or degrading treatment.  Because of the US reservation to the UN Convention Against Torture limiting the US obligation to our Constitutional standards, it was vital that those Constitutional standards not be seen to apply outside of the United States.  Thus, the OLC interpretation was put in place in this same 2001-2 period that the US obligation with respect to cruel, inhuman and/or degrading treatment was limited to US territory and did not apply extraterritorially to non-citizens held abroad.

C. Principle No. 1 read with Principle No. 2

The combination of this political definition of torture (Principle No. 1) with the assertion of the non-extraterritorial applicability to non-citizens held abroad of the UN Convention Against Torture prohibition on cruel, inhuman and/or degrading treatment (Principle No. 2) was the legal floor for the use of Enhanced Interrogation Techniques

Under that definition, short of killing a detainee, any treatment such as that described in  the Senate Torture Report was considered legal and – according to former Vice President Dick Cheney – is considered legal.

The Geneva Conventions create another source of law that might impinge on this definition so they were simply read not to apply in the conflict.

The result is that the political definition of torture was made the legal definition of torture.  That political definition of torture was made to apply for intelligence, the military, and any other place where persons were detained outside the United States who were non-citizens.  It may have also been applied to Jose Padilla – a US citizen.

D. The political definition of torture as not law but as power

This political definition of torture was not law at the time but the authorized interpretation of the law under the OLC memos and other verbal advice given before and after the torture memos.  As we have learned in the Senate Torture Report, these memos were based on false narratives as to the facts and profoundly flawed legal analysis.  As we have also learned, as noted in the Senate Torture Report, CIA operatives objected to the techniques being used.  As noted in the Senate Armed Services Committee Report, lawyers in State (William Taft IV as Legal Adviser and Phillip Zelikow as counsel to the Secretary of State and the Department of Defense (the four uniformed Top JAG officers and Alberto Mora as General Counsel of the Navy) objected to this legal structure that was being carefully put in place.  Those who objected were overruled – an act of discretionary power.

II. Torture without torturers – the structuring of political definition non- torture

A. Compartmentalization of an overall worldwide program

With this common standard in place, applicable across the entire government, it was applied in the military, intelligence, and other sites.  Most likely it was provided to foreign governments who helped us in the worldwide torture program and served as the basis for the United States assurance that the persons held in black sites were being treated humanely.  Moreover, when a foreign government gave assurances to the United States that they were going to treat someone rendered to them humanely, it seems logical that the above definition of torture was the United States political definition to which these diplomatic assurances would be responding.

To limit the understanding  of any individual who was not at the center of this torture regime, it was necessary to compartmentalize information on a need to know basis.  Thus, whether someone was detained in the intelligence part of this, in the military part, or in the law enforcement part had to be carefully determined.  Those persons in each of those parts of the torture structure would have limited knowledge at the operator level.  They were on a short leash in the sense that they had to report back to Headquarters about what they did.  Inevitably, at the CIA at least, whenever the operators wanted to stop, the Senate Torture Report says they were ordered to continue.  One can understand that this same logic would have played out in the military and law enforcement detention – as long as it was overseas – as well as in the detention by foreign governments.

Only someone close to the top of this hierarchy would fully understand the dimensions of the torture program and what was going on.  Former Vice President Dick Cheney had a significant national security portfolio and he has made it clear that he was weighing (I understand a significant part of that as being the putting into place of the political definition of torture that he truly believes) on all those below to comply with his approach to seeking actionable intelligence.

B. Dis-Aggregation and Aggregation of Techniques

If torture is only murder is your definition of torture, then the combination of any set of actions on a specific detainee that were less than murder was fair game.  Thus we have the combination of rendition, detention, medical, and interrogation acts done to a given detainee.  For example, the rendition of someone in a drugged and sensory-deprived manner, detention rules that called for waking up someone, rectal feeding as being considered a means of rehydration overseen by medical personnel, and the interrogation techniques actually used become four different aspects of detainee treatment with no-one individual person at the operator level having the competence to do all aspects of the treatment of the detainee.  This disaggregation by narrow task definition for personnel assures that no one of the personnel could be seen to have done an act that would result in murder – the definition of torture.  Each of these acts would have some kind of rationale – maintaining security in travel or when holding a person, providing medical “care,” or seeking actionable intelligence.

The operator in the room is only there for a period of time, so no one operator – whatever his/her role – would have an understanding of the totality of what was being done to a detainee unless meticulous records were both kept and systematically reviewed.  In addition, those meticulous records would have to not be compartmentalized into retention, detention, medical, and interrogation for any given operator to have an inkling of what the overall program was doing to a given detainee.

When one looks at the disaggregated narrow task definition from the point of view of the detainee, the whole panoply of actions done to them amount to the treatment.  If the sum of all these parts does not amount to murder, then under the definition of torture as murder there is no crime.  Under this vision, there is treatment that is not abuse by persons who did nothing wrong.

It permits a situation of abuse without abusers.

More importantly, when one looks at the panoply of actions done to the detainee at the level above the individual operator where the authority to supervise was present, there comes a point in which one is sufficiently superior in level to see the dimensions of what is being done to the given person under the different tracks of treatment activity.  I would suspect that the highest minimum level for that kind of knowledge (meaning the lowest level at which one would suspect a government official would be able to put together the rendition, detention, medical and interrogation actions done on any given detainee) would be the level of the head of the Counterterrorism Center at the CIA – the level of Jose Rodriguez.  If we follow the de jure chain of command, I would also think that those in the Director and Deputy Director roles of the CIA above the Counterterrorism Center would also have such knowledge.  In the Department of Defense the highest minimum level would be about the same – I imagine that Stephen Cambone was at that level.  On the legal side, given the memo writing, the Office of Legal Counsel was the highest minimum level at which knowledge of the different strands of treatment would be known going up to the Attorney General and the Deputy Attorney Generals.  Similar levels would be the levels of their counterparts in the General Counsels offices of State, Department of Defense, CIA and other Intelligence Services, Department of Homeland Security or others.  The line does not have to be the same in each part of the government because the nature of the intervention of actors from each part may be different.  Thus, a discrete intervention by the Bureau of Prisons might entail (if it then existed) the Secretary of the Department of Homeland Security, the General Counsel, and the head of the Bureau of Prisons authorizing such an intervention, without any other parts of the Department being involved.  Similarly, at the White House, the National Security Staff would be the highest minimum level in the know.

C. Legal Process

Given the above structure of treatment, if a detainee were to be prosecuted, the military commission structure had to be put in place to ensure a sufficiently high procedural and substantive tolerance for the product of these processes to be admissible  – first by the Presidential Military Order, and subsequently in the Military Commission Act of 2006 and the Military Commission Act of 2009.  If the torture is only murder definition could be maintained as the operative definition of what was inadmissible, every product of the above treatment was admissible.

III. The demise of the political definition of torture –

A. The rise of a legal definition of torture: something more than only murder and the applicability some places abroad of the cruel, inhuman, and/or degrading treatment rule

The political definition of torture as only murder was not able to be sustained in the onslaught of litigation in the United States courts.  In light of Rasul (2004), Hamdan (2006) and Boumediene (2008), the political definition of torture was confronted with statutory and then Constitutional habeas rights and – with Hamdan – the minimum Geneva Convention Common Article 3 standard.  More significantly, with the pictures from Abu Ghraib, the Uniform Code of Military Justice standard was applied to the low-level soldiers who undertook acts when the political definition of torture as murder applied and they were court-martialed or disciplined as their actions were incompatible with their domestic legal obligations as uniformed soldiers.

The revelation of the torture memos and their political definition of torture as only murder began to be confronted by the rule of law. The political definition of torture in the OLC memos was ridiculed for adopting an “absurdly narrow” legal definition of torture, described by the former Dean of Yale Law School Professor Harold Koh as “so narrow that it would have exculpated Saddam Hussein.” (see Advocates for US Torture Prosecutions Shadow Report to the UN Committee Against Torture page 5).

The use of combinations of techniques immediately, detailed in the Senate Torture Report, also raised the specter of sanctioned interrogation techniques being improperly used under the guidance.  Their use considered proper during the period of the political definition of torture as only murder was no longer proper.  Once there was a step back from the torture is only murder definition their use could be recognized as being something like torture as including something more than murder.

With the repudiation of the non-extraterritoriality argument on cruel, inhuman and/or degrading treatment in the Convention Against Torture through the Detainee Treatment Act of 2005 as a matter of internal law,  the window for the torture as only murder political definition of torture was prospectively limited.

However, as a matter of international law, with the statement of Abraham Sofaer who negotiated and submitted to Congress the Convention Against Torture when the US signed it in the Reagan Administration in 1988 and the Statement of the US delegation to the UN Committee Against Torture in November 2014 reaffirming the applicability to the United States of the cruel, inhuman and/or degrading treatment portion of the UN Convention Against Torture to United States operations outside the United States, the Bush Administration legal analysis was somewhat revealed as an aberrant domestic interpretation of the US international law obligation.  Given the basic rule of international law that no state can use its internal law to extract itself from its international obligations, the Bush Administration interpretation was shown up as a blatant attempt to extract the US from its international obligations through the effort to enshrine the torture is only murder political definition of torture and non-extraterritorial applicability of the cruel, inhuman and/or degrading treatment CAT treaty rules.  In a sense, state culpability was more clearly revealed.  Now, it is true that the Obama Administration statement leaves areas of cloudiness as to just where the cruel, inhuman, and/or degrading treatment international obligation applies other than on US ships, Guantanamo Bay, or US bases overseas (a political compromise across the interagency to maybe provide a fig leaf to those who operated under the torture as only murder and non-extraterritorial applicability of the cruel, inhuman, or degrading treatment rule of the CAT).  Yet, it is a significant step back from the torture as only murder standard in a move toward the torture is something more than murder standard and the cruel, inhuman, and/or degrading treatment is prohibited rule.

B. How to address acts since 2001 under the political definition of torture as only murder and non-applicability of cruel, inhuman and/or degrading treatment with the legal definition of torture as something more than murder and the applicability in some cases of the cruel, inhuman or degrading treatment rule

(More to come)






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I Can’t Breathe: American Torture as America’s 21st Century Lynch Law

By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law, Advocates for US Torture Prosecutions

“I can’t breathe” is on the t-shirts and in the mouths of demonstrators all over America as they protest the non-indictment of Eric Garner’s killers in New York, the non-indictment of Michael Brown’s killer in Ferguson, the acquittal of Trayvon Martin’s killer in Florida and case after case of unarmed black men and women killed by the police all across America.  On the media, we see a diverse group of Americans in the 24/7 news cycle dissecting every aspect of those cases and trying to make meaning of all that.

And I support those efforts to address the profound contradiction experienced by many Americans at  watching a man get killed on videotape by the police and the judicial process concluding there was not enough evidence for probable cause to even have a trial.  The dissonance between that image of that black man dying and the legal process is stark, especially for the many lawyers who have commented on that experience.

Contrast that phenomenon with another situation where a person was intentionally made to not be able to breathe, was made to feel like they were drowning.  A situation in which they could not talk – using Congressman’s Peter King’s apocryphal test to suggest Eric Garner was not in such bad shape.

If on this Human Rights Day, the person reading this message has no clue about which person I speak then let me dissipate your implicit bias: Abu Zubaydah or Khalid Sheikh Mohammed.  The Senate Select Committee on Intelligence Executive Summary of their Torture Report describes in detail the intentional causing of at least these detainees to not be able to breathe.

While we can lament the death of Eric Garner we saw on videotape and see the recklessness of what was done to him, with Abu Zubaydah or Khalid Sheikh Mohammed there is the cold implacable intentionality of the torturer at work.

As Michael Hayden so artfully expressed it on Morning Joe this morning, the people at the CIA believed that they were doing the will of the American people.  And, how did they come to  that view?  Because the President authorized it, Congress was briefed, the Justice Department (John Yoo resurfaced today also – I guess it is about him and not just the Berkeley people he disdained by saying their torture protest was more about them) said it was legal, and the Director of the CIA (Tenet, Hayden and Goss like Moe, Larry and Curly did their tap dance for torture over at the Wall Street Journal today) said it was good to do, well that makes it ok.

Under their logic, in the ”edgy” space that Michael Hayden takes such pleasure in denoting, as long as the President authorized slavery, Congress was briefed, the Justice Department signed off on it, and the Director of the CIA thought it was a good idea, well that makes it ok.

Under their logic, in this ”edgy” space, as long as the President authorizes killing unarmed black men, Congress is briefed, the Justice Department signs off on it, and the Director of the CIA thinks it is a good idea, well that makes it ok.

Under their logic, in this “edgy” space, as long as the President authorizes interning Japanese-Americans, Congress is briefed, the Justice Department signs off on it, and the Director of the CIA thinks it is a good idea, well that makes it ok.

Under their logic, in this “edgy” space, as long as the President authorizes the killing of schoolchildren, Congress is briefed, the Justice Department signs off on it, and the Director of the CIA thinks it is a good idea, well that makes it ok.

Under their logic, however, what do you do with the Congress people who were briefed and objected, the Justice Department or other departments like then State Legal Advisor William Taft or counselor Philip Zelikow, or Department of Defense types like Alberto Mora and the four uniformed top JAG officers,  or the nameless lawyers in Justice who did not think this was a bright idea.  Or the operators at the CIA who did not agree with going down this path.  Do they fit into this schema anywhere or are they just to be seen as some kind of collateral damage in the will to power and torture that was ambient in this environment.

What about the Justice Departments profound ignorance of international law and the traditional role of the Legal Adviser at State on advising on matters related to international law?  Is somehow the intentional circumvention of that part of the interagency process some “mistake that was made” or more a concerted effort to line up the ducks that will permit torture and shoot the ones that might object?

Maybe I am missing something here.  After all, from what I have watched for the last two days the speakers on the topic of torture and the “disinterested” commentators – with the exception of a brief Fareed Zakaria intervention – have all been white Americans.  Maybe this is a white thing that I am not supposed to understand.

Sorry, two exceptions today.  John Yoo, coming out of Berkeley, to defend what was done and Tim Scott, South Carolina Republican Senator, toeing the torture wing of the Republican party’s party line.  But, across the table among the invited commentators, a stream of white snow.

It made me think of the debates that must have happened early in the 20th century when there were efforts to have the federal government pass an anti-lynching law.  The Southern Senators blocked those efforts at every turn.  In that case, most of those being lynched were not white, yet those who were called to criminalize behavior by white mobs were white and somehow just could not bring themselves to pass such a law.

Today, we have a timid black President, who shows such a profound reticence in dealing with the torture that he reveals his fundamental lack of any real moral authority.  He is just another politician trying to see which way the wind is blowing and fearful of the Neanderthals that exult in their worldwide torture regime.

But, he is in good company, for the business elite are only interested in how they might get a piece of the action, the judges have regularly closed the door to the claims of these detainees to any abuse, and the media is having a ratings field day by putting on persons to regale us with their torture adeptness who would normally be defendants in any normally constituted reality.

I can’t breathe.  We are truly a zombie nation – walking around and dead in our souls.

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American Thugs in American Democracy: This is what American Official Torture looks like

By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law, Advocates for US Torture Prosecutions

We now have the Senate Select Committee on Intelligence Executive Summary of its Torture Report and for those who actually care about America, it is a nearly 600 page litany of American thuggery.  The description of what was done to people completely in the custody and control of the United States by these thugs is horrific.  To see these thugs in suits with the temerity to appear on television today and these past days and extol their work is to be subjected to psychological abuse.  To watch the pandering of television people to these people – soliciting the comments of persons who in any normally constituted setting would be some of the defendants in an international war crime tribunal – is to see just how far our media have sunk in this country.

That the Director of the CIA is allowed to say even one word – let alone issue a CIA statement – shows the perverse depravity of our official national security establishment.  For surely, if there was a day in which we would ask the CIA to shut up it would be today.  But, these thugs are simply incapable of that kind of class.

I have watched the television shows today on different channels and seen people from the CIA and television commentators glory in the thuggery.  Maybe I should go farther, and say, they have rejoiced in their depravity.  They have bathed all those who read the report with their twisted vision of public service in which they proceed with extreme lawlessness while always finding some willing lawyer to help them in their depravity.  And the lawyers stepping up to bat – including the Solicitor General of the United States (a post Thurgood Marshall held so many years ago) – have shown such a profound willingness to abet this thuggery that John Yoo is recast as a bit player among a group of despicable characters who dare to try to wrap themselves in the honorable title of public servant.

At one level, there is a sense of shock by some in the press by the sheer evil of the things that were done.  While reading the evil has been painful, anyone with a passing knowledge of the depravity of which man is capable was grimly reminded of how revolting is official state evil.

While they and their defenders gloat over the devastation they have wreaked on America through their actions, I take some modest solace today in knowing that the release of this report brings us one day closer to their day of reckoning.  For their defenses of what they did ring hollow in the fact of the horror that they were happy to unleash – some to make a cool $81 million.

If one wondered what some people were willing to do to make a dollar in this country, there is your answer in that report.  Anything.  If one wondered what some people would do to please their bosses, there is your answer.  Anything.  These thugs are so far from any semblance of a minimal and elementary respect for human dignity that they make the Crips and the Bloods and street gangs normally associated with thuggery like model citizens.  Yet, we are asked to venerate these official torture thugs in their depravity.

It is their ability to inflict such massive pain at such an excruciating level that is brought to our attention as we are encouraged to be fascinated by their sheer perversity.  It is the darkness of their depravity that we are encouraged to admire under the guise of some misguided vision of what patriotism is supposed to mean.

These thugs reveal the heart of the repressive force of a state – something that was precisely attempted to be channeled in the separation of powers and federalism.  Yet, what we see is how a cabal of truly evil men and women of great intelligence can manipulate law and power to destroy any semblance of civilization.  They represent a direct threat to the civilization we so cherish through their descent into these multiple levels of perversion.

That the head of the ACLU would broach the idea of Obama giving them pardons is to show how deep is the sickness in our system.  The supposed defenders of rights are going straight to pardons rather than insisting on prosecution.  What a sickness besets this country.

Our chattering classes, so enamored of sucking up to people in power, demonstrate an almost psychotic inability to express revulsion at what has been revealed.  They seek reassurance that things were not so bad.  And these twisted thugs are so rapid to reassure them.  It is a dance with the devil.

There is a reason that there is an absolute prohibition on torture.  For those who care to look, you are seeing exactly why that prohibition came to be.  For humans have a level of depravity in them, a level of thuggery, that when industrialized by the state and across a worldwide frame with many complicit participants in many countries – one begins to see just what a torture state looks like.  For all those who have been apologists for this abomination, I hope they are sleeping well tonight secure in their association with thuggery of international  proportions.

It would be too much to hope for some twinge – some vague twinge – of conscience to present itself in these thugs.  Not one iota all day long.  Just the interminable pining of the torturer about how good a person he is.  It is repellant.

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