The Lawless Roads: America's Ever-Expanding Torture Matrix
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Written by Chris Floyd   
Saturday, 07 April 2012 23:50

In two brief posts over the past week, Scott Horton at Harper's gives us a harrowing sketch of the entrenchment and ever-spreading expansion of the Torture Matrix that now sits enthroned at the very heart of the American state. This entrenchment and expansion has been carried out -- enthusiastically, energetically, relentlessly -- by the current president of the United States: a progressive Democrat and recipient of the Nobel Peace Prize.

Horton notes the uncovering of the Zelikow Memo, written by one of the chief factotums of the Bush Administration, Philip Zelikow. While serving as a State Department lawyer in 2006, Zelikow wrote a legal brief that demolished the written-to-order "torture memos" by White House lawyers, which sanctioned the widespread use of torture techniques that were -- and still are -- clearly war crimes. As Horton points out, the Zelikow  did not even address the most brutal tortures instigated by the Bush administration, but confined itself to the so-called 'torture lite' methods (many of which are still in use today). Yet even here, Zelikow clearly demonstrated "that the use of these techniques would constitute prosecutable felonies — war crimes." The existence of the Zelikow memo proves that there was indeed official recognition throughout the highest reaches of government that war crimes were being committed at the order of the White House and the intelligence agencies. Horton goes on:

In order for a prosecution to succeed, a prosecutor would have to show that the accused understood that what he was doing was a crime. In United States v. Altstoetter, a case in which government lawyers were prosecuted for their role in, among other things, providing a legal pretext for the torture and mistreatment of prisoners, the court fashioned a similar rule, saying that the law requires “proof before conviction that the accused knew or should have known that in matters of international concern he was guilty of participation in a nationally organized system of injustice and persecution shocking to the moral sense of mankind, and that he knew or should have known that he would be subject to punishment if caught.”

The Zelikow memo satisfies both of these elements—it makes clear that the techniques the Justice Department endorsed constituted criminal conduct, and it applied the “shock the conscience” test of American constitutional law to help reach that conclusion. It could therefore be introduced as Exhibit A by prosecutors bringing future charges.

Horton also provides a succinct background to the other "torture memos" that Bush attorneys wrote in support of the criminal operation -- a perpetrators' paper trail that is actually much more extensive than is usually known.

This memo has been in the possession of the Obama Administration since its first day in office. It was in the possession of the special prosecutor that Obama's Justice Department appointed to look into the torture system -- a special prosecutor who found that there was nothing to prosecute. Horton writes:

Spencer Ackerman, whose persistence is to be credited for the publication of Zelikow’s memo, astutely pressed its author to answer this question: Why, in light of Zelikow’s findings, did the special prosecutor appointed by Eric Holder to investigate the legality of CIA interrogation techniques fail to bring charges?

“I don’t know why Mr. Durham came to the conclusions he did,” Zelikow says, referring to the Justice Department special prosecutor for the CIA torture inquiry, John Durham. “I’m not impugning them, I just literally don’t know why, because he never published any details about either the factual analysis or legal analysis that led to those conclusions.”

To reiterate: one of the chief insiders of the right-wing Republican Bush White House believes that the war crimes ordered by the Bush White House deserve prosecution. The chief insiders of the progressive Democratic Obama White House believe these war crimes should not be prosecuted.

Then again, why should Barack Obama want to prosecute torture -- when he is successfully arguing for it to be applied not only to the American population at large? In another post, Horton writes of Obama's great success at the Supreme Court: the ruling that allows all Americans to be strip-searched when taken into custody for even the most minor infractions. The purpose of this, as Horton points out, is clearly to humiliate and "break" the citizen -- who is, you might recall, entirely innocent in the eyes of the law at that point. In fact, as Horton notes, the U.S. military itself recognizes the strip search as a torture technique that American pilots might face if captured by heinous rogue states. Horton:

...the Supreme Court has decided on the claim of Albert Florence, a man apprehended for the well-known offense of traveling in an automobile while being black. Florence was hustled off to jail over a couple of bench warrants involving minor fines that had in fact been paid—evidence of which he produced to unimpressed police officers. He was then twice subjected to humiliating strip searches involving the inspection of body cavities. Florence sued, arguing that this process violated his rights.

There is very little doubt under the law about the right of prison authorities to subject a person convicted or suspected of a serious crime to conduct a strip search before introducing someone to the general prison population. But does the right to conduct a strip search outweigh the right to dignity and bodily integrity of a person who committed no crime whatsoever, who is apprehended based on a false suspicion that he hadn’t discharged a petty fine—for walking a dog without a leash, say, or turning a car from the wrong lane? Yes. In a 5–4 decision, the Court backed the position advocated by President Obama’s Justice Department, upholding the power of jailers against the interests of innocent citizens. As Justice Anthony Kennedy reasons in his majority opinion (in terms that would be familiar to anyone who has lived in a police state), who is to say that innocent citizens are really innocent? “[P]eople detained for minor offenses,” he writes, “can turn out to be the most devious and dangerous criminals.” ....

The decision reflects the elevation of the prison industry’s interest in maintaining order in its facilities above the interests of individuals. And it does so by systematically misunderstanding the reasons behind strip searches. Kennedy insists that they are all done for the aim of fostering order, and he backs up this position with exemplary bits of pretzel logic. For instance, he suggests that a person stopped for failing to yield at an intersection may well have heroin taped to his scrotum, and may attempt to bring it into the prison to which he is taken. In advancing such rationales, the Court ignores the darker truth about strip searches: they are employed for the conscious humiliation and psychological preparation of prisoners, as part of a practice designed to break them down and render them submissive.

Just as the Florence decision was being prepared, the Department of Defense released a previously classified training manual used to prepare American pilots for resistance to foreign governments that might use illegal and immoral techniques to render them cooperative. Key in this manual are the precise practices highlighted in Florence. Body-cavity searches are performed, it explains, to make the prisoner “feel uncomfortable and degraded.” Forced nudity and invasion of the body make the prisoner feel helpless, by removing all items that provide the prisoner with psychological support. In other words, the strip search is an essential step in efforts to destroy an individual’s sense of self-confidence, well-being, and even his or her identity. The value of this tool has been recognized by authoritarian governments around the world, and now, thanks to the Roberts Court, it will belong to the standard jailhouse repertoire in the United States.

To reiterate: the Obama Administration vigorously defended the introduction of this authoritarian practice into every place of incarceration in the United States. The fact that this draconian stricture will fall most heavily on African-Americans cut no ice with the historic, epoch-shaking first minority president in American history. (But why should it? By almost every measure -- employment, housing, wealth, poverty programs, community support, voting rights, civil rights, etc. -- African-Americans have been sent reeling backwards by the policies of the Obama Administration.)

Obama has adamantly refused to prosecute clear, credible and copious allegations of war crimes by his predecessor. He is now applying acknowledged torture techniques to the general American population. And as William Blum reminds us in his latest "Anti-Empire Report," Obama is still carrying out torture on a massive, systematic scale in the gulag he commands -- despite the pervasive progressive myth that he has formally ended "torture" in the American system. Blum:

...the executive order concerning torture, issued January 22, 2009 — "Executive Order 13491 — Ensuring Lawful Interrogations" — leaves loopholes, such as being applicable only "in any armed conflict". Thus, torture by Americans outside environments of "armed conflict", which is where much torture in the world happens anyway, is not prohibited. And what about torture in a "counter-terrorism" environment?

One of Mr. Obama's orders required the CIA to use only the interrogation methods outlined in a revised Army Field Manual. However, using the Army Field Manual as a guide to prisoner treatment and interrogation still allows solitary confinement, perceptual or sensory deprivation, sleep deprivation, the induction of fear and hopelessness, mind-altering drugs, environmental manipulation such as temperature and perhaps noise, and possibly stress positions and sensory overload. ...

Just as no one in the Bush and Obama administrations has been punished in any way for war crimes in Iraq, Afghanistan and the other countries they waged illegal war against, no one has been punished for torture. And, it could be added, no American bankster has been punished for their indispensable role in the world-wide financial torture. What a marvelously forgiving land is America. This, however, does not apply to Julian Assange and Bradley Manning. ...

I'd like at this point to remind my dear readers of the words of the "Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment", which was drafted by the United Nations in 1984, came into force in 1987, and ratified by the United States in 1994. Article 2, section 2 of the Convention states: "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture."

Such marvelously clear, unequivocal, and principled language, to set a single standard for a world that makes it increasingly difficult for one to feel proud of humanity. We cannot slide back.

No exceptions whatsoever -- not even an eternal "War on Terror." This is indeed clear language -- and it is indisputably the law of the land, as the constitutional law professor in the White House well knows. But this no longer means anything. As we noted here a couple of years ago, in an excerpt from a "conversation during Civil War":

"But in days past, I was a lawyer. Yes, a lawyer, can you believe it? It seems … ridiculous now, doesn't it? An orderly system meant to govern human society, to establish justice, to advance the progress and enlightenment of the human race. Yet that system, that civil cosmos – to which I was so passionately committed – embraced and protected the most wretched evils, entrenched the powerful in their unjust privilege, oppressed the poor and weak most relentlessly and wickedly, yet at every step – at every step – sang hosannas to itself as some kind of divinity. The "Law" – oh, what a hush of reverence surrounded that word, how deeply that reverence and respect penetrated the heart. Well, my heart, anyway. But in these last few years we have seen – in intense, concentrated, microscopic view – the truth about the law, a truth which too often escaped us in the slow unrolling of peacetime. The truth that there is no law, no Platonic Form out there to which we give paltry representation. There is only power: power in conflict with power, power seeking to drive out power, to establish its dominance, maintain its privilege. Power…acquiesces to law – sometimes – but it never, never bows to it. Power goes along with the law when it is convenient to do so, when it is not too restrictive, when it demands little more than the occasional sacrifice – for the powerful are certainly not above throwing one of their own to the mob when circumstances require. But when it comes to the crisis, power shreds the law like a filthy rag and has its own way. And then you see that the law is nothing but a rag, to be torn and patched and fitted to power's aims. The worst atrocities I have seen or heard of in this war have been committed wholly and completely under the law. This thing I held in such reverence was, is, nothing but a scrap soaked with blood and shit."

Or, pertaining more directly to the case at hand, and undergirding some of Blum's points, including his insights on rendition, is a piece I wrote in 2011:

There is of course a myth that Barack Obama has "ended" the practice of torture. This is not even remotely true. For one thing, as we have often noted here, the Army Field Manual that Obama has adopted as his interrogation standard permits many practices that any rational person would consider torture. For another, we have no way of verifying what techniques are actually being used by the government's innumerable "security" and intelligence agencies, by the covert units of the military -- and by other entities whose very existence is still unknown. These agencies are almost entirely self-policed; they investigate themselves, they report on themselves to the toothless Congressional "oversight" committees; we simply have to take these organizations -- whose entire raison d'etre is deceit, deception, lawlessness and subterfuge -- at their word. And of course, we have no way of knowing what is being done in the torture chambers of foreign lands where the United States often "outsources" its captives, including American citizens.

Finally, even if the comforting bedtime story of Obama's ban of torture techniques in interrogation were true, there remains his ardent championing of the right to seize anyone on earth -- without a warrant, without producing any evidence whatsoever of wrongdoing -- and hold them indefinitely, often for years on end, in a legal limbo, with no inherent rights whatsoever, beyond whatever narrowly constricted, ever-changing, legally baseless and often farcical "hearings" and tribunals the captors deign to allow them. Incarceration under these conditions is itself an horrendous act of torture, no matter what else might happen to the captive. Yet Obama has actively, avidly applied this torture, and has gone to court numerous times to defend this torture, and to expand the use of this torture ... 

....Murder, cowardice, torture, dishonor: these are fruits -- and the distinguishing characteristics -- of the militarized society. What Americans once would not do even to Nazis with the blood of millions on their hands, they now do routinely to weak and wretched captives seized on little or no evidence of wrongdoing at all. We are deep in the darkness, and hurtling deeper, headlong, all the time.

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