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 memo 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
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.)
"...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. ...