America’s everexpanding torture matrix
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.” ….