(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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(Beheading update 12/12/14) Senate Torture Report Release: We need an independent prosecutor as the crime and the coverup Continue

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

So later this morning Senator Dianne Feinstein will release the Executive Summary of the Senate Select Committee on Intelligence Torture Report.  With the firestorm of news coverages these past few days, you would think that this release is the full story.

It is not.

First, it will not have the names of the actual individuals who put in place the torture program – the operators.  We have the names of their bosses – we have listened to them for years defending the program right up to President Bush on Sunday.  But, we do not have the names of those individuals in the CIA who in their ambition were ready, willing and able and did in fact torture people.  They are known to themselves and, if somehow they did not get it already, they should note that they committed a crime and are participating in a coverup.

Second, Americans are at risk abroad by our enemies that will exploit this release of a very narrow aspect of a worldwide torture regime.  I hope they are taking precautions.  But, let us be clear: it is the torture that put them at risk and the coverup for the past 13 years that put them at risk.  That this comes out today is simply because there has been such an aggressive efforts by those who put in place the torture to hide their crime.  And they have done that through a coverup that continues to this day.

Third, we like to say that we are not like ISIS who beheads people.  But, as part of the program being only partially revealed today we did behead at least one person, wrap his head carefully, and put it in a box that was transported by military from the battlefield to DC to be shown to top leaders.

(Beheading update 12/12/14 – It was an Afghan ally who beheaded a guy – no info on whether the guy was dead or alive at the time. Here it is - http://www.washingtonpost.com/wp-dyn/content/article/2006/06/19/AR2006061901211.html

“Suskind titles one chapter “Zawahiri’s Head,” a reference to Ayman al-Zawahiri, al-Qaeda’s second in command, whom Suskind cheekily dubs “bin Laden’s Cheney, the older man who made sure that ideas were carried to action.” At least four times in 2001-02, reports reached Washington that Zawahiri had died. One set of Afghan tribal chiefs said they could prove it. In June, they delivered a mud-caked head, and an intelligence officer flew it in a metal box to Dulles airport for DNA analysis. Coleman, the FBI analyst, held the jawless skull “as Hamlet did with Yorick’s.” It felt, he tells Suskind, “like a boccie ball.” Bush, who was tracking the transaction, reportedly told a briefer — “half in jest,” Suskind writes — that “if it turns out to be Zawahiri’s head, I hope you’ll bring it here.” It turned out to be someone else’s.”)

Fourth, one line of argument in defense of the program is that it was authorized by the president, briefed to Congress, deemed lawful by the attorney general and determined useful by the CIA director (See Michael Gerson –   http://www.washingtonpost.com/opinions/michael-gerson-releasing-the-feinstein-report-in-the-middle-of-a-war-would-be-reckless/2014/12/08/e1dd1268-7f15-11e4-8882-03cf08410beb_story.html?postshare=4091418126020247).  What, of course, that line of argument misses is that each of those persons as well as the operators were committing a crime.  Why? Because, the United States has bound itself to recognize the absolute prohibition against torture.  As such, neither the President, the Congress as briefed, a flawed Justice Department opinion, or a CIA director approval – alone or in combination – can get around the United States acceptance of the absolute prohibition on torture.  That those persons exercised power to commit a crime is of no doubt.  That low-level soldiers at Abu Ghraib were court-martialed for taking part in that scheme, there is no doubt.  All we are debating with regard to this crime is how high up in the hierarchy we are willing to go for all of us know that the prosecutable persons reach right up to former President Bush. We have domestic crimes – tens of them – for which each of these persons can be tried as part of their wheel, spoke, and chain conspiracy to commit torture.

Fifth, as people were killed in the program there is no statute of limitations that applies for the underlying crime.  And as the conspiracy continues to this day (you just have to watch them all on television to see that), there is a continuing conspiracy to torture and cover it up that will go on until these persons are tried in a court of law.

We should have no empathy for these torturers.  It is not whether they were patriots or we were scared or whatever.  They committed a horrendous crime that will echo down the ages and must never be repeated.  The only way to avoid that repetition is to punish them so that future leaders will remember what happened.

We need an independent prosecutor.


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(Update – 12/7 and 8) Obama And Bush Torture Misdirection

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

Now that the former CIA leaders – thanks to Brennan – have had six months head start in preparing their vigorous public relations defense of the torture they did, please be prepared for an onslaught of comments by them. (Update 12/8  - they have been busy little bees according to this article with their new website going up - http://foreignpolicy.com/2014/12/08/exclusive-former-spies-launch-ciasavedlives-com-to-combat-torture-report/)

It will start tomorrow on the CNN State of the Union show where George Bush will be interviewed. Actually, the charm offensive started somewhat earlier during the UN Committee Against Torture hearings in mid- November when George Bush was given airplay ostensibly about his book about his dad.

Be that as it may, we can expect the “the program kept us safe,” “I would authorize it again.” “the CIA are good people,” and other variations in his presentation.

Then, expect a rollout of the former CIA types and their proxies from the Bush Administration such as the lawyers.  All-American looking and earnest speakers will urge in various fora of social media the report is flawed on a procedural ground and also that we are at war and hard measures were needed.

Some of these types are in the press corps already (http://www.washingtonpost.com/opinions/michael-gerson-releasing-the-feinstein-report-in-the-middle-of-a-war-would-be-reckless/2014/12/08/e1dd1268-7f15-11e4-8882-03cf08410beb_story.html?postshare=4091418126020247) and will play their roles as shills for torturers with great fervor. You know, the softball questions and the humanizing interview.

(Update – former President Bush described the CIA people as patriots and good people on CNN’ State of the Union and outgoing Chair Mike Rogers of the House Select Committee on Intelligence said that there have been many investigations, we have stopped doing what we are doing, foreign leaders are telling us not to do this as there will be violence, and what could possibly be gained by this release of this report.  Former CIA Director Michael Hayden has also weighed in in a similar manner – http://m.theatlantic.com/international/archive/2014/12/former-cia-director-hayden-warns-against-releasing-senate-torture-report/383491/. And  Jose Rodriguez – the torture tape destroyer – and others http://mobile.nytimes.com/2014/12/08/us/politics/bush-and-cia-ex-officials-rebut-torture-report.html

All of these comments are of course misdirection.  They reflect what might be called “powerful or insider bias” – they are patriots, they are good people, they know what happened, they changed what they did, foreign powerful people say this will lead to violence and what purpose is served in releasing this information to the powerless.

The problem with this approach is best taken from the biblical verse about making the crooked road straight.  The worldwide torture regime was the crooked road – completely in violation of the absolute prohibition against torture.  Whether these people involved were patriots or were good people, those points are besides the point.  They went down (and took America down) the crooked road and committed a crime.  The fact that so many of them have worked so hard to not let us ordinary citizens know what happened suggests that part of keeping that road crooked for them is not having ordinary Americans (in whose name they were supposed to be acting under the public trust) know how crooked what they did was and is.  So transparency for me serves the benefit of making that crooked road straight by not allowing the people who did it to continue to control the information about the torture they did.  That there have been changes made in law and practice is beyond doubt, but many of those changes have language in them that appears to be about trying to insulate the torturers from accountability.  So those laws are not straight but are crooked and should be at best narrowly construed.  To do that, we need the facts wherever they lead.  The views of foreign powerful people – 54 countries went along with the worldwide torture regime – are not disinterested but reflect those leaders trying to protect themselves from the opprobrium of their own people for what they did as well as the opprobrium of the world for their crooked approach to the straight road of the absolute prohibition against torture.  These are crocodile tears being shed.

And for those who say no purpose is served, I say that the purpose of letting me as an ordinary citizen have a better inkling of how my government has tortured down the crooked path is a sufficient purpose.  There is a tendency of the high and mighty to disdain us lowly folks and it is time for the mighty who have it great to be laid low.  They took the crooked path and now they have to face the music.)

Within the Administration, Kerry’s call to Feinstein is a CYA for in case something blows up out in the world in response to the report. ISIS will no doubt try to make a huge propaganda victory out of revelations in the report – that is their modus operandi so far. So those things will happen and some will blame the release of the report for those things. And Americans like my dad who retired from State may – God forbid – be projected into harm’s way or killed. The release of the report would then be blamed for that.

But with all this dancing around about the report, we should all keep in mind that fundamentally all of this is misdirection from the essential point that neither the Bush nor the Obama Administration acknowledges.

It is that these actions by senior officials – as surely as the chokehold by police that killed Eric Garner in New York or the gunshots with which police killed Tamir Rice in Cleveland or the gunshots that killed Michael Brown in Ferguson, or the gunshots that killed a homeless man on videotape in Albuquerque – and the coverup since are crimes to be effectively investigated and prosecuted.

It is the crime and the coverup, not the report that are the reason these bad things may happen.  To think that the revealing of an aspect of the crimes is more dangerius than the actual commission of the crimes is to have a public relations vision of torture – not a rule of law vision.  The problems that arise from public reporting are just one more consequence of the decision to commit the crime of torture.  The public reporting is not the problem – it is the torture, stupid.

The critics of the botched investigations and  grand jury proceedings in the Brown and Garner cases as in the Trayvon Martin case before, all called for and were to be reassured by the opening of federal investigations.

As someone who has watched and read the publicly available parts of federal investigations of torture since they started coming out in 2004, one cannot help but think that the purposes of these investigations is to bury criminality at the top and minimize the prosecution of criminality at the bottom. They are not about seeking the facts and indicting the real crimes.

And so we violate are obligations under the UN Torture Convention in a bipartisan manner while paying only lip service to the absolute prohibition on torture.

That is how far our leaders have let America sink – vague apology for mistakes made but no accountability. Such a degraded vision of the rule of law.

So the misdirection starts on the shiny new thing  report which is only one tenth of the underlying report and it itself is only a partial story.  The dimensions of this partial report demonstrate just how broad the 54 country torture regime was and, even then, this report does not speak to the military side of it.

The enormity of the crime and our passive unwillingness to prosecute the senior officials who out it in place demonstrate a hole – not a blind spot – in the American character that years of fear and propaganda have carefully exploited.

That calling for such prosecutions is so seen as  preposterous is precisely the evidence of how low we have come in our belief in the rule of law.  That there are those who do not take seriously the idea of such prosecutions is more about those persons not taking seriously the rule of law than anything else.

So let us keep our eye on the ball and not let the coming onslaught of misdirection deter us from the grim duty of making sure these senior officials end up in the dock for the worldwide torture program they orchestrated and seek to cover up.

There is no national security in torture and it is no secret – whatever the state wants to hide -that these people committed crimes.

Any impunity permitted is on each of us – whether in power or not.

And the whole f’ing world is watching.


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Obama’s Contradiction: Prosecute small town rioters but do not prosecute worldwide torturers

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

Talk about a double standard!

Some punks experience depressive overload and riot burning property and stealing stuff from stores in a small town in America – this time Ferguson. Calls for prosecuting those persons to the full extent of the law ring out across the political spectrum including from Obama.

But, from that same White House the Chief of Staff is slow walking the release of the SSCI torture report in the waning days of the current Congress – stalling for time – as next term fascists will bury it.

As if whether the report is released or not changes the fact that the crimes were committed.  The crimes were committed, the only question is only whether and to what extent ordinary Americans will be informed of these official crimes by the officials who are trying to cover up the criminality they are shielding.

This sure smells of abuse of power and violation of the public trust.

Scream about private social violence and criminality while you go mute on public social violence and criminality is a fundamental contradiction. It has gone on for six years. It has been called out by the UN Committee Against Torture in their Concluding Observations just last week.

It is obstruction of justice.


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Prosecutor Manipulates Grand Jury Process to Shield Officer


By Marjorie Cohn

You know the fix is in when a suspect who shot an unarmed man voluntarily provides four hours of un-cross examined testimony to a grand jury without taking the Fifth.

On August 9, Ferguson, Missouri Police Officer Darren Wilson gunned down 18-year-old African American Michael Brown. Since that fateful day, people across the country have protested against racial profiling, excessive police force, and the failure of the criminal justice system to provide accountability.

The nail in the coffin of “equal justice under law” came on November 24, when the St. Louis County grand jury refused to indict Wilson for any criminal charges in the shooting death of Brown. In a virtually unprecedented move, St. Louis Prosecutor Robert McCulloch in effect deputized the grand jurors to sit as triers of fact as in a jury trial.

In a normal grand jury proceeding, the prosecutor presents evidence for a few days and then asks the grand jurors to return an indictment, which they nearly always do. Of 162,000 federal cases in 2010, grand juries failed to indict in only 11 of them, according the Bureau of Justice Statistics.

The standard of proof for a grand jury to indict is only probable cause to believe the suspect committed a crime. It is not proof beyond a reasonable doubt, which is required for conviction at trial. Yet McCulloch’s team presented testimony and documents to the panel for three months, evidence not subjected to adversarial testing by cross-examination.

Justice Antonin Scalia explained the function of the grand jury in United States v. Williams as follows:

[I]t is the grand jury’s function not “to enquire . . . upon what foundation [the charge may be] denied,” or otherwise to try the suspect’s defenses, but only to examine “upon what foundation [the charge] is made” by the prosecutor. [citations omitted] As a consequence, neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.

Every principle Scalia cited was violated in this case. The grand jury was asked to determine whether Wilson acted in self-defense. Wilson was allowed to give four hours of self-serving testimony to the grand jury. And for three months, prosecutors presented both incriminating and exculpatory evidence.

The prosecutor did not ask these grand jurors for an indictment. They were left to sift through the evidence on their own, with no prosecutorial guidance about what to charge. Indeed, the transcripts indicated that prosecutors asked Wilson gentle, leading questions designed to bolster his self-defense claim. For example, a prosecutor told Wilson, “You felt like your life was in jeopardy,” followed by, “And use of deadly force was justified at that point, in your opinion?” But prosecutors rigorously challenged witnesses who contradicted Wilson’s testimony.

As the grand jury is a secret proceeding, with only the grand jurors and the prosecutor present, the grand jurors did not hear any cross-examination of the officer’s testimony, or that of other witnesses (which is customary in an adversarial jury trial). These grand jurors, who were nearing the end of their term, which began in May, knew the drill, since they had sat on several other cases. They knew the prosecutor always asks for indictments. Thus, when the prosecutor handled the Wilson case in a radically different manner, this signaled to the grand jurors that they were not expected to indict. And they did not.

Another unorthodox aspect of this case was McCulloch’s announcement of the grand jury’s decision on national television. Sounding like a defense attorney delivering a closing argument in a jury trial, McCulloch characterized and analyzed the witness testimony in the light most favorable to the officer.

McCulloch has a history of bias in favor of police involved in altercations with black men. But, ignoring the pleas of 7,000 residents in and near Ferguson who signed a petition, McCulloch refused to recuse himself in the Wilson case.

McCulloch had mischaracterized testimony in a 2000 case in which two black men were killed after officers fired 21 shots at them. As in the Wilson case, the reasonableness of the officers’ use of deadly force was critical. In the 2000 case, the officers said the two victims were driving toward them, trying to run them down, and McCulloch claimed that all the witnesses corroborated the officers’ story. A later federal investigation, however, determined that the car was not moving forward, and that only three of the thirteen officers said the car was moving forward.

Likewise, Wilson’s claim that Brown was “charging” at him when the officer fired the fatal shots into the top of Brown’s bowed head was critical to the reasonableness of Wilson’s use of deadly force. When McCulloch announced the grand jury’s decision, he characterized the witnesses who testified that Brown was “charging” the officer as believable, but dismissed the testimony of witnesses who said Brown was surrendering. McCulloch sounded like a defense attorney, not a prosecutor charged with representing “the people,” including Brown.

Wilson fired 12 shots at Brown, six of which struck the teenager. There was a great deal of contradiction among the witnesses, including whether Brown’s hands were up or down when Wilson shot at him. That is precisely why there should have been an indictment and a jury trial. Jurors would hear all of the evidence, subjected to adversarial testing by cross-examination. They would assess the credibility of the witnesses, and determine whether Wilson had committed any crime(s) beyond a reasonable doubt.

After reviewing the transcripts and evidence in the Wilson case, San Francisco Public Defender Jeff Adachi noted:

Dorian Johnson, the key witness who was standing next to Brown during the encounter, provided strong testimony that called into question Wilson’s claim that he was defending his life against a deranged aggressor. Johnson testified that Wilson, enraged that the young men did not obey his order to get on the sidewalk, threw his patrol car into reverse. While Wilson claimed Brown prevented him from opening his door, Johnson testified that the officer smacked them with the door after nearly hitting the pair. Johnson described the ensuing struggle as Wilson attempting to pull Brown through the car window by his neck and shirt, and Brown pulling away. Johnson never saw Brown reach for Wilson’s gun or punch the officer. Johnson testified that he watched a wounded Brown partially raise his hands and say, “I don’t have a gun” before being fatally shot.

Adachi also wrote, “Prosecutors never asked Wilson why he did not attempt to drive away while Brown was allegedly reaching through his vehicle window or to reconcile the contradiction between his claim that Brown punched the left side of his face and the documented injuries which appear on his right side.”

If properly directed, the grand jury may well have indicted Wilson for one of several offenses, including first degree murder, second degree murder, voluntary manslaughter, involuntary manslaughter, assault with a deadly weapon, unlawful discharge of a firearm, and battery. Wilson testified that he was acting in self-defense when he shot Brown. If he were indicted, the jury would assess whether Wilson acted reasonably when he used deadly force against the teenager.

A police officer in Missouri can use deadly force in making an arrest or preventing escape if he reasonably believes it is necessary to effect the arrest and also reasonably believes the person to be arrested has committed or attempted to commit a felony, or may otherwise endanger life or inflict serious physical injury unless arrested without delay. The key word is “reasonably.” The jury would be told to consider whether a deadly weapon was used, how far apart Wilson was from Brown when the former used deadly force, any disparities in the sizes of the two, the crime involved, etc. The evidence was contradictory about the distance between the two during the confrontation, both Wilson and Brown were the same height but Brown was heavier, and the officer contradicted himself about whether he knew that Brown was suspected of committing petty theft for stealing cigarillos (a misdemeanor, not a felony) before the officer stopped him.

In Tennessee v. Garner, the Supreme Court held that an officer cannot arrest an unarmed felony suspect by shooting him dead. If the suspect threatens the officer with a weapon, or there is probable cause to believe he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape. Although there is a dispute about whether Wilson knew that Brown was suspected of stealing cigarillos before stopping him, Brown had likely committed petty theft – a non-violent misdemeanor, not a felony.

Wilson’s testimony raises several questions, listed in a piece by Ezra Klein on Vox: “Why did Michael Brown, an 18-year-old kid headed to college, refuse to move from the middle of the street to the sidewalk? Why would he curse out a police officer? Why would he attack a police officer? Why would he dare a police officer to shoot him? Why would he charge a police officer holding a gun? Why would he put his hand in his waistband while charging, even though he was unarmed?”

In my opinion, McCulloch should have filed charges against Wilson, who would then have had the right to a public preliminary hearing. He could present evidence and cross-examine the witnesses against him. And if it were televised, the viewing public could see that justice is done.

According to Adachi, “Wilson’s description of Brown as a ‘demon’ with superhuman strength and unremitting rage, and his description of the neighborhood as ‘hostile,’ illustrate implicit racial bias that taints use-of-force decisions. These biases surely contribute to the fact that African Americans are 21 times more likely to be shot by police than whites in the US, but the statement’s racial implications remain unexamined.”

Because of the great social implications of cases involving police shootings of people of color, the presumption in these cases should be that prosecutors utilize the public preliminary hearing process instead of the secret grand jury proceeding.

In a unified statement, several civil and human rights organizations recommended an independent and comprehensive federal investigation by the Department of Justice (DOJ). They said the DOJ should also investigate all police killings and reports of the use of excessive force and racial profiling against youth and people of color. And they would require Body-Worn Cameras to record every police-civilian encounter, and increased community oversight of local law enforcement.

Thousands of people in cities throughout the country are protesting the travesty of justice that occurred in Ferguson. But, as the civil and human rights organizations wrote in their statement, “Nothing will be resolved until there is a systemic change throughout this nation in the implicit and explicit bias against people of color and particularly African-American youth who are routinely targeted by law enforcement even within their own communities.”

The article was originally published on Truthout on 11/28/14.  Read it here.

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The UN CAT US Report out Today: Devastating on All Fronts of National Security

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

There is a tendency in legal academia to parse subjects into narrow domains.

The UN Committee Against Torture’s Concluding Observations on the United States ( http://www.ushrnetwork.org/news-updates/cat-concluding-observations-press-release for the USHRN press release and ahttp://tbinternet.ohchr.org/Treaties/CAT/Shared%20Documents/USA/INT_CAT_COC_USA_18893_E.pdf for the actual Concluding Observations) takes a holistic approach to the torture obligations that calls upon us to revisit our narrowness of perspective.

( Just Security has fallen prey to this unfortunate tendency which, when one reflects on it, really is untenable (http://justsecurity.org/17837/un-committee-torture-concluding-observations-united-states/). We shall see what lawfareblog does in due course.)

I.  The International Law of Ferguson or the domestic aspects of the devastating criticism

Notwithstanding the ambient denial that pervades the media and the “why can’t we get along” or “blame the victim” tropes so familiar in the American media and social media space, the CAT is quite devastating in so many ways.

First and I think foremost, the CAT says quite clearly that African-Americans and Latinos are not living some collective hallucination about life in America. The CAT is basically saying that we hear you and you are not crazy. In this way, they rebut all those folks who continue to somehow deny the horrendous inequalities faced by minorities.

Second, and I will go into this in more detail in an update, the Concluding Observations are instructive on both the condemnation of law enforcement practices and the condemnation of judicial process from investigation through to punishment and imprisonment.  The discomfort felt by the prosecution of the Darren Wilson case is understood and joined with as the CAT questions the independence of the processes in these kinds of cases.

Third, the entire immigration apparatus is roundly condemned for a wide number of profound flaws that simply do not pass muster under international standards. These criticisms go to both the substance of immigration detentions and the procedural shortcuts attempted to avoid providing due process to the immigrant populations.

Fourth, the treatment of LGBT’s and the legal hurdles to those prisoners seeking to fight their being raped – especially children – are brought to the light of the international community. While “tough guy” procedural hurdles may be popular, their perversity in the face of the dramatic experiences of prison rape is made an international issue.

Fifth, the perversions of the super max system and other forms of solitary confinement are again pointed out for their fundamental incompatibility with basic notions of human dignity of the incarcerated.

II. Repudiation of the entire US International Torture Program and Approach to Shielding of Senior Officials

If the domestic part is considered a condemnation, the international part amounts to a fundamental and full-throated repudiation of every aspect of the American bipartisan torture consensus.

First, with respect to the military commissions it declares them unfair process as a matter of international law. For an international laws of war tribunal to be declared unfair is devastating and reinforces the views of many of us who have written on the structural flaws of the military commissions and their flaws as applied. We too are not crazy.

Second, the force feeding at Guantanamo – a creature of the Obama Administration and current – is also seen as incompatible with the US obligations. Thus, the nurse who on ethical grounds refused to participate in the force feeding is vindicated and not the system.

Third, the investigations for accountability are confirmed to have been charades. They are simply not buying what the American delegation attempted to try to sell.  The Durham and other investigations are simply not found credible. General Gross may have been played by the intelligence types, but the CAT was not impressed by the assurances of thousands of investigations. The American delegation has put the military in a bind now by the CAT now calling on the US to give numbers and do that within one year. The smokescreen attempted has backfired on the US delegation and for good reason. The absolute prohibition on torture is not some word game.

Fourth, the US stonewalling of foreign criminal and other investigations of the worldwide torture regime is called out as simply what it is: a failure to provide mutual legal assistance that is required under the treaty.

Fifth, the secrecy state is disrobed in public. Whether in the from of the enforced secrecy on detainees publicly being heard about the torture, the international standard unacceptability of the preconditions/constraints on any visit with detainees of the UN Special Rapporteur on torture, the mendacity on the release of the SSCI Torture Report, and other matters, the CAT is categoric on the US violations of our obligations.

Sixth, the CAT’s view on the need to investigate the command responsibility of the senior officials and the lawyers is stunningly blunt.  The lawyers are discredited as providing “legal cover” using the exact language John Rizzo used to describe what he was doing in Company Man.  They call the legalisms what they are: flawed. From the CAT, this kind of language is profoundly dismissive of these legal charades and the legal eagles so willing to besmirch the law in their zealous enabling of torture. Again, no amount of this legal mumbo jumbo passes muster for the CAT and the culpability of the lawyers and those they tried to shield is made patently obvious. There is a year given for us to get serious about our obligations.

Seventh, the call for investigations of the military goes directly at the military psychologists and the APA process and sees a crime to be prosecuted. The coverup is over and the efforts of those to seek accountability for those health professionals who tortured is brought to the fore again.

III. Summing up

The CAT is telling America that we have lost our way in so many ways on this peremptory norm.  We have sold our souls and allowed  a perversion of ourselves.

This report is much more than a wake-up call: it is a step by step dismantling of the torture state we have put in place and shielded domestically and internationally.  It says just how far we have departed from elementaty standards and how we are in multiple breach of our obligations.

What usually happens when these things happen is that we get silence in the United States. Do not expect the President to come on television and tell us how far the international community we are ostensibly leading considers we have strayed from the city on the hill.  That task is left to the ordinary citizens who have been derided these past ten years for saying what we have. But, now, we have the support of the devastating CAT report to back us up again the naysayers who have made a killing both literally and figuratively in the torture game.

Thanks to this report, the day of reckoning for these torturers is much closer than it was yesterday.  For that, Americans of all stripes should thank the CAT for seeing through the fog of official torture bullshit.





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November 21, 2014

The Society of American Law Teachers (SALT) calls for the upholding of the rule of law in relation to the death of Michael Brown. Michael Brown’s death and the subsequent protests in Ferguson remind us of the consequences when the community loses faith and trust in America’s policing and judicial systems. SALT is concerned that violence by the police against unarmed Black people is becoming increasingly common. The actions of the police in Ferguson and the community reaction are a microcosm of the inequalities and profound mistrust that pervade many communities around the country that must be addressed.

SALT and its members are committed to ensuring that the system of justice in the United States operates effectively in a manner that affirms the principles of equality and justice. In keeping with our mission, and as a community of engaged law professors, we would like to offer the support and expertise of our members to help address systemic inequities that erode faith in our justice system and to facilitate discussion, dialogue, and concerted action to address the issues that Michael Brown and the Ferguson protests have raised at the local and national level. We must ensure that our system of justice gives historically subordinated populations assurance that the laws are being executed fairly. By acting in solidarity with the people of Ferguson, we seek to promote adherence to and the sanctity of civil and human rights principles in the United States.

In the wake of the events in Ferguson, we call for:

(1) upholding the principles of equality before the law;

(2) implementation of a system of police accountability, oversight and integrity regardless of race, class or social standing;

(3) safeguarding the right to speak freely and peacefully protest and acting to quell excessive police force that inhibits the exercise of these fundamental rights; and

(4) working to eliminate divisive policing and justice policies and practices that demean people of color and view them as objects of threat and fear.

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(Update – December 2, 2014) Rule of law?: The Charade of Video cameras and video destruction

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

After the Ferguson non-indictment, the suggestion was made that all police should wear body cameras.  This suggestion while well-intended, gives me pause for two reasons.

First, in our inimical style the proposal provides a technology solution which essentially leaves to the side the training  and the law while suggesting a new lucrative national security market be opened.  The alliance between commerce and national security described by James Risen in Pay Any Price plays out in another direction. The suggestion is about putting more resources toward monitoring police action. Yet, we have seen numerous videos of people being killed by police over the past few months without any of those cases leading to indictments.  How will a body camera change that dynamic in any meaningful way is the question that comes to mind.  Some will remember the videotape of  Rodney King as a long ago example of just how meaningless such taping might really be.  Rather, a technological fix is proposed as some magic silver bullet.  We are just masking an inability or unwillingness to address more than this kind of cosmetic solution.

Second, some will remember the destruction of the CIA tapes of the torture of Khalid Sheikh Muhammad.  That destruction was done in violation of at least the spirit of a federal judge’s order to preserve evidence.  The judge, however, only slapped the government on the wrist with a “don’t do it again” admonition.  The DOJ  US Attorney John Durham declined to prosecute the destroyer of the video – Jose Rodriguez – for obstruction of justice or other charges and the case just went away.  If this reality is the rule of law, the gnawing question is what is the content of that rule of law so boldly put forward, yet, so parcimonious in its application.

A technology solution is a charade, a bandaid over a bullet wound.

(Update – the non-indictment in the Eric Garner case – where there was a video http://www.cnn.com/2014/12/03/justice/new-york-grand-jury-chokehold/index.html?hpt=hp_t1 - points out the fundamental charade of this proposal).




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