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Friday, May 30, 2008

Torture: Illegal and un-American

It's not a big leap from the Executive branch exempting itself from some law to outright lawlessness. If society becomes one in which might makes right, every little too bit wannabe dictator will takes his marching orders from George W. Bush, and do as they please regardless of the laws meant to limit their authority.

The President leads by example. Even if he's not waterboarding people, his role is tantamount to full participation in the "harsh interrogation tactics" if he has endorsed their use, as Bush admitted recently.

Bush's rise to the Presidency really has changed things in our country. During the 2000 campaign, as I was struggling with my business, I hadn't thought the choice of Presidents would really affect me but has it ever. Gas prices spike past $4/gallon, which means prices are and will continue to rise. Our international credibility has tanked, which in my personal experience means overseas friends have given up on coming to visit our country. Another major personal threat is the deterioration of military readiness. We are much more vulnerable to internal tribulations like hurricans, fires, earthquakes, and tornadoes previously left to locally based National Guard manpower and resources, both of which have been shipped overseas.

Changes on the national stage do matter locally, I've learned the hard way. The move to disaster capitalism has federalized our emergency response capability. Under the Bush system of crony capitalism, disaster response and recovery have been privatized and de-localized, so we're more vulnerable than ever. The best example during Katrina was FEMA's blocking a Salvation Army relief convoy because it hadn't been authorized by Washington.

As fires rage in California and Florida, earthquakes and floods in the Midwest, drought elsewhere, maybe someone's trying to tell us something. On a higher note, if these weather tragedies are sent to us from God, the US has really been going down the wrong road morally and might actually a warning to repent and change our ways. No one more than George Bush ultimately takes responsibility for putting us on the path we're on, but I just saw a poll on CNBC that said more people blame Congress for higher oil prices than OPEC, Bush, and Big Oil, combined! The fact that Bush represented Big Oil seems lost on a majority of Americans who can't quite connect the hand-holding with King Abdullah with the nearly 10-fold increase in the cost of oil since Bush entered office.

What matters "over there" does make an impact over here. Over time, the fabric of a society can break down if laws are ignored by those in power. If Bush and his annoited lieutenants can break the law and get away with it, our legal system is irrelevant. Our government was meant to be established as a more perfect union. Kings and queens were entitled to no special priviledges under the law, and treated no differently from the average citizen when it came to the law. Nowadays there is a separate and unequal legal system for the rich, and for our President and those who go forth in his name.

Several of our founders spoke about the threat we could create for ourselves from within. Franklin talked about striving for security and losing all, and I believe it was Adams who talked about threats to our liberties posed by a standing army. The Constitution was created in an age when alliances between European nations caused incessant warfare, so entanglements were rightfully shunned. How far have we sunk in that regard, as we engage in multi-decade Status of Forces agreements in the over 100 foreign countries we now base ourselves in.

Essay on Torture:
Terror transgressions

Lurking in the collective consciousness is the scary fact that the US government, its agents, contractors, and proxies all violated both the spirit and letter of the law in treating detainees. The New York Times has an editorial out under the title "What the F.B.I. Agents Saw."

The FBI were canaries in the coalmine for Bush's newly created classification and trials process custom tailored for radical anti-Western Muslims. The NYT editorial says of the FBI who visited Guantanamo that "they also predicted, accurately, that it would be impossible to prosecute abused prisoners."

I posted to commondreams.org under the article, "Report Details Military Tactics FBI Agents Found Abusive" by Marisa Taylor. Here is my post:
The FBI distancing themselves from military procedures is a huge red flag. I'd written in my blog that "clean" FBI teams had had better success than the ones who witnessed or deployed torture using Starbucks and congenial conversation. Recently, during the Guantanamo trials military attorneys voiced concerns that might be disobeying their superior officers in trying to defend their clients from illegally acquired evidence. The judges may or may not choose to disqualify confessions based on torture. Military lawyers representing Gitmo detainees threatened to quit rather than be forced to violate legal procedure. Allowing the tortured confessions to stand as evidence could deny defendants their right to representation and full defense under the law. Strict adherence to the Uniform Code of Military Justice, like the US law which FBI agents operate under regardless of locale, would throw out all the coerced testimony.

The FBI's pull-out showed illegal conduct was commonplace and in violation of US laws and statutes. Just how bad did the torture get? In Abu Ghraib, we saw the horror captured on digital cameras. A journalist imprisoned at Guantanamo, Sami al-Haj drew illustrations showing the horrors he faced. See his story and some of his art article on alternet here. I particulary liked the alien-like appearance of the US military staff performing an autopsy in one of the drawings. For more in this theme, see Fernando Botero's work here and here.

Like the Botero and al-Haj paintings, hunger strikes have plagued Gitmo but gone hidden in the American media. Forced feedings were ordered lest the prisoners starve. Yet these humanitarian grounds for intervention have been carried out in a most inhuman fashion. In Gitmo, prison guards thrust tubes down the nasal passages of detainees as they were strapped down in special feeding chairs. A famous case of IRA detainees starving themselves in the 1970s established a precedent that forced feeding was a violation of prisoner rights, even if it led to their deaths. In essence the forced feedings were simply more torture inflicted against hapless victims.

Americans should worry about be the possibility of the torturing police state mentality being turned inward, towards domestic dissidents, then political rivals. First, they came for Jose Padilla, and I did nothing... Then they came for Dr. Sami Al Arian, and I did nothing...

Perhaps the torture is the adrenaline rush peak of a power trip. Our political leadership might get off on doing whatever they want, knowing they can get away with it. Maybe the torture videos circulate the White House like porn in a prison, where they provide late night entertainment. A power trip involves doing things not for any good reason--like gathering intelligence--but rather because they can. Victimization serves the ego of a weak mind, so torture tells us a great deal about those who authorize and do it.

Racism plays a role in allowing unspeakable horrors to befall terrorist suspects, who are under our traditional legal system (vs. the de facto one Bush created), innocent until proven guilty. Arabs are seen as a sub-human, and racism forms the backbone of the attitude of Americans towards the region since 9/11. Bush's comments during the 60th anniversary of Israel's founding--not disseminated in the MSM--basically called for a territorial expansion of Greater Israel, a Zionist program from the start. Of course green-lighting ruthless expansionism doesn't bode well for the Palestinians whose lands will be expropriated. The US traditionally played the role of mediator in the Palestinian-Israeli conflict; now it is perceived as part of an anti-Arab axis.

Making enemies

The enemy combatant label was created post-9/11. Fabricated, the new label required a whole new legal system, again one which would not be able to meet the more rigorous qualifications of US domestic courts. However, the Jose Padilla case shows that terror convictions can be successfully made under higher evidentiary standards. Padilla's multi-year un-Constititutional lack of representation and due process should have tainted his trial. After such prolonged isolation however, Padilla appears dysfunctional and incapable of grasping the charges made by the government against him. Little of his abusive treatment at the hands of a naval brig in South Carolina was brought up in his trial. By the time Padilla saw the light of a Federal courtroom in Miami, he'd suffered through years of extreme isolation.

Padilla was likely treated better than those that US has held in secret prisons called "black sites", as well as at the hands of third party nations who received non-US nationals as the by-product of "extraordinary" rendition.

Canadian political refugee Arar was sent back to his native Syria after being detained in New York. Arar has filed civil lawsuits claiming that the US government acted with malicious intent when it rendered him out of the US. Suspecting Arar of terrorist ties, the US simply dropped Arar off to a country they'd known would torture him. This way source of their evidence--likely a suspected terrorist tortured into giving names--could be masked under a national security prextext. The government could likewise avoid having to provide evidence against Arar--which is a red flag saying they simply didn't have enough on him (perhaps because he was--in fact--innocent?) In a similar case, Abu Omar, an Eygptian iman from Milan, Italy was sent back to his native land where he'd been brutally tortured, as stories of abuse written on toilet paper emerged out of his Eygptian jail cell. See the Mother Jones exclusive by Peter Bergen.

The enemy combatant designation deprives detainees of due process in part because the system for detaining and capturing through the process of rendition has little legal precedent on which to rule. Yes, international law could be subverted by classify War on Terror targets as "enemy combatants", freeing Bush and the US national security machine to employ radical techniques. The status of detainees was specifically meant to differ from Prisoners of War, who were given legal rights under treaty law. By changing the names of the terrorist suspects, the Bush administration hoped to reject the legal limitations on their behavior. In going it alone on the enemy combatant designation, the US has abandoned precedent in both international and US military law.

Yet the system for dealing with the detainees after they've been forced to confess is dysfunctional. One big problem with the US occupations of Iraq and Afghanistan is the huge numbers of prisoners that the US must manage.

Our military can't process battlefield detainees, a broad term referring to any persons that the US military and its allies might choose to detain in the battlefield, which through the War on Terror has expanded to encompass just about anywhere. High-value targets are meant to be screened out of the larger group of detainees, and sent up the military chain of custody to Guantanamo, if the military chooses. But what about the Afghan who fired a few potshots then was tortured to confess to being a member of al Qaeda? What if he's simply an innocent who's been brought in order to provide his captors a bounty? If we are to rely on our military alone, we cannot trust whatever evidence our Afghan partners might produce, because it hasn't met our supposedly higher benchmark. And if the US presence is not meant to impose justice, how can we ever get out, yet alone claim victory by creating a functional state through our presence?

Saddam's barbaric execution by Sadr's people showed just what happens if we give detainees over to the Shiite government. Corruption and close tribal affiliations mean prisoners released from US custody might simply be set free by the locals or executed, not for doing anything wrong but simply for being from a rival tribe. On a practical level, we can't process these people, because our military probably lacks the sufficient evidence or judicial capacity to try them all.

(Il)legal process

Bush created a military tribunal procedure which is an attempt to break with concept of a traditional military court controlled by the Uniform Code of Military and US laws which forbid "harsh interrogation techniques," a term that refers to torture under long-standing international laws.

The processing system for detainees reflects the hodge-podge of iffy legal arguments made among White House lawyers. Conjecture based on the theory of a Unitary Executive granted through fiat the President extralegal powers based on his job responsibility to protect the American people. Bouncing legal opinions among White House staffers was elevated to the status of scholarly legal opinion and quickly brought into operative norms of conduct. Scrutiny of the proposed legal processes were reserved from broader, judicious review. Looking back on all the violations of law by the Bush administration, we can now see the legal arguments as nothing more than efforts to circumvent the law--in this case removing the well-established codes of conduct for US military personnel.

So weak was the White House argument that it claimed that US laws don't apply to US personnel operating on Cuban soil--the tip of Cuba on which Gitmo is located. Not so, said the FBI, which pulled its people. This approach actually dates pre-9/11, when the Bush administration tried to exempt US soldiers from the International Court of Justice, which could try US soldiers individually. Under Bush, the US has gone to great lengths to protect military personnel from prosecution by foreign courts, so much so that legal invulnerability for our troops is codified in Status of Forces Agreements we sign with nations hosting our bases. Along the same lines, a clause in Iraqi law forbade kept our soldiers and even private contractors from being tried for any crimes they might commit.

In getting US forces exempted from international law, Bush would have been easily sold the popular misperception that the US military would be hamstrung if put under the legal discretion of non-American courts. There is also the possibility that the higher-ups feared being prosecuted for their wrongdoing if lower ranking personnel testified against them in foreign courts. Perhaps the reason top policymakers were so concerned with legal accountability of troops is the understanding they could be liable as their commanders and originators of the orders.

Accountability for the higher-ups in the military chain of command has been sorely lacking. Looking back at Abu Ghraib, we saw Lt. Col. Pappas apparently endorse the harsh interrogation tactics yet face nothing more than a slap on the wrist for his behavior while the "recycled hillbillies" below him in rank were sentenced to prison. Major General Geoffrey Miller brought torture techniques from Gitmo to Iraq in 2004--he's faced no legal consequences for his conduct either.

Violence and outrage rules in a society stripped of its laws like Iraq. The rape of female KBR contractors also shows the legal loopholes that come into play when suing in US federal courts. Without the rigid controls of a functional legal system in place--military or non-military--, justice breaks down. Criminals aren't prosecuted, crimes occur without recourse, the fabric of a society's grounding in the law begins cracking. Rapists and murders go untried, uncaught, and anonymous, which of course just encourages more raping and killing. Knowing they face no prosecution for what they do in Iraq, private contractors do as they please there.

Roots of torture

Politically, Bush need to be claiming success in the War on Terror. The Iraq insurgency had heated up in the spring of 2004, with Fallujah becoming an example of Sunni resistance to the US occupation. With the fall election coming up fast, demonstrating progress in Iraq became vital for political reasons. Someone must have convinced Bush and his people that torture would forestall the insurgency--at least through the election. The spin job concocted around redefining torture as "harsh interrogation techniques" shows how that Bush and his closest legal advisers like Harriet Miers and John Woo were trying to hide the truth, which was that they were breaking international law.

The domestic political audience was the real target of war on terror rhetoric and presumptions--one of which was the TV series 24's use of torture as an anecdotal proof of the need for expediency in dealing with terrorists. The bad guy--alleged terrorist--is tortured in exchange for saving the lives of thousands. A fair trade-off, it would seem, until the legal ramifications of torture are considered.

With 9/11 as the backdrop, American soldiers in the field could have looked at any Afghan or Iraqi as a terrorist. In the field, civilian casualties were identified post-humously as "dead terrorists" so reclassifying live ones who'd dared to resist the occupation as "al-Qaeda" was no big step. In Americans' eyes, they were all guilty of 9/11. This is the VC in the jungle come alive in every Vietnamese face, all over again 40 years later. There, the dead civilians would become part of an ever-growing body count, used as a metric of military progress in that failed war.

Could the enemy combatant designation have been an effort to produce "actionable" intelligence? The threat to the US couldn't have been framed as more dire than since the Civil War, when Lincoln suspended the Constitution in dealing with domestic insurrections. The end scene in Gangs of New York depicts the harsh clampdown which killed large numbers of New Yorkers. Numerous antiwar writers were imprisoned as well, and denied their right to trial.

Why torture?

The military tribunals system was created out of thin air by the same Bush advisers who created the enemy combatant designation. Trying to avoid international legal accountability originated out of the assumptions that torture 1) was essential to preventing new attacks and 2) would produce accurate results. Torture forces confessions out of guilty and innocent alike, just to stop the pain, so it's inaccurate. Torture is however a good way to find and "detain" a bunch of people regardless of their guilt or innocence, to give the semblance of progress in the nebulous War on Terror.

Just how concerned with accumulating evidence was the Bush administration? After 9/11if evidence were marginal or better, as in Padilla's case for example, convictions could have been had, so why risk it? After all, the military courts which could try terrorists are known to be hard for defendants, so the standards would have been lower than our Courts. Yet we've only seen a handful of post-9/11 convictions; the suspects languish waiting for trial.

Creating a new system to classify and try detainees strongly hints that prosecutors knew that had a sufficient evidence, but not lawfully acquired evidence that could withstand objections by the defense during a trial, whether through military tribunal or other court.

The architects of Bush's detainee classification and tribunals system had to produce convictions, so they created what they thought would be an easier method. They've created a jumble of new terminology and Soviet-style confessions upon which to base the legal side of the prosecution of the War on Terror. Why the need for reclassification and a whole new system of tribunals? Why not just feed their detainees through the standard military justice system?

The Bush people knew that torture worked not from a legal or evidentiary perspective but because it could extract confessions, which provided the currency of the belief that al Qaeda was in fact responsible for 9/11 and that a growing conspiracy persisted. While mostly worthless in a court of law, the results of harsh interrogation reaffirmed the presumption that it was in fact al Qaeda who'd been responsible for 9/11 and that the threat was ongoing. Apprehending terrorists and making them talk became a salve for Americans embittered by 9/11 and thirsty for revenge. In a nexus of politics and terror, they were constantly being told they'd come under attack from al Qaeda.

Our government must have known that their cases were weak long before the manufactured evidence began to come in. They must have known torture would make convictions harder. So why torture, other than to get people to admit being more involved than they actually were? In short, torture created the justification for continuing wars based on a threat from terrorism, by procuring evidence--real or contrived--that an ongoing conspiracy was unfolding, one which rationalized ever more extreme interrogations to prevent a mass casualty event in the US.

Torture committed years ago haunts us now. We have to contend with the thousands of incarcerated Iraqis, Afghans, and others who've been caught up in the terror dragnet. Without a system in place to try, convict, and imprison, or free those detainees, they languish in American-run prisons, denied a right to trial we grant our worst criminals back in the US.

As I said here a while back, the abandonment of Geneva actually causes more problems than it solves. We can still fall back on the rule of international law, but this might decrease the conviction rate, a political liability but a practical necessity if our overseas prisons are to ever shrink and the detainees there processed fairly. Fairness undoubtedly involves the right of habeas corpus--a right to a speedy trial before a judge as well as the right not to be tortured. And back home we need to end this thing one day--with terrorists tried and convicted, doing hard time, or executed.

On a conspiracy level, the inadequacy of Bush's detainee classification and tribunal system may be meant to globalize the prison-industrial complex which has been America's #1 growth industry with more than 2 million imprisoned--more than any other nation. Military functions are being privatized, so we may live to see the day a corporate flag flies over our foreign bases and overseas prisons. Our nation's role in torturing detainees might need to be outsourced in order to save what is left of our global credibility and respect for the rule of law that's been sacrificed in the War on Terror and our ongoing occupations/wars of conquest.

Additional Sources

Good article on torture by Dahr Jamail from March, 2006 here.


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