JURIST Guest Columnist Benjamin Davis
of the University of Toledo College of Law says that new revelations about top US lawmakers' encouragement and support of state-sponsored torture in the years immediately following 9/11 make them complicit in acts many would now condemn and show us how far we have sunk in ostensible defense of American values...
he Washington Post
reported over the weekend that in 2002 and 2003 members of Congress were briefed on, acquiesced in and even encouraged now-decried CIA interrogation techniques:
With one known exception, no formal objections were raised by the lawmakers briefed about the harsh methods during the two years in which waterboarding was employed, from 2002 to 2003, said Democrats and Republicans with direct knowledge of the matter. The lawmakers who held oversight roles during the period included Pelosi and Rep. Jane Harman (D-Calif.) and Sens. Bob Graham (D-Fla.) and John D. Rockefeller IV (D-W.Va.), as well as Rep. Porter J. Goss (R-Fla.) and Sen. Pat Roberts (R-Kan).
Individual lawmakers' recollections of the early briefings varied dramatically, but officials present during the meetings described the reaction as mostly quiet acquiescence, if not outright support. "Among those being briefed, there was a pretty full understanding of what the CIA was doing," said Goss, who chaired the House intelligence committee from 1997 to 2004 and then served as CIA director from 2004 to 2006. "And the reaction in the room was not just approval, but encouragement."
In April 2005 at a conference on the War on Terrorism at Duke University Law School’s Center on Law, Ethics and National Security, I publicly challenged
[video] Rep. Jane Harman, saying that I fully expected that in closed door briefings members of Congress had been made aware of the torture. She, as was the wont of others there, dismissed me, distinctly leaving the impression that nothing of the sort had happened. Now we know that she was carefully leaving a false impression.
In this last year of the current Administration, revelation after revelation of Congressional complicity in the American form of torture is occurring and more revelations are fully expected. The complicity described is both bipartisan and sustained. Over the past few years, I have heard many lawmakers speak disparagingly of the Geneva Conventions, human rights law, international humanitarian law, and argue over and over about why our enemies in this “War on Terrorism” are outside of that law. It is only today that we find out about the blood on their hands with regard to that treatment that was inflicted on these persons. They are like mafia leaders ordering someone’s legs broken and then saying the person deserved it as they bend down in prayer at their house of worship. All the revelations make me sick.
As the leadership of both parties has been involved in torturing people, there will be absolutely no interest from these elites in U.S. domestic criminal prosecution of some of their members for their role in a conspiracy to commit torture and violations of the most fundamental rules of international law and domestic statutes that I have written about in my article Refluat Stercus
When we hear these revelations let us look again at the pictures of Abu Ghraib and think of all the low-level soldiers who were court-martialed for their acts there. We must conclude that the abhorrent acts that those low-level persons were doing were exactly what they had been asked to do. As many suspected and passionately argued to deaf ears, we must also conclude that the rejection of the low-level persons’ defenses of superior orders and the unwillingness of the courts-martial to go up the chain of command were calculated to keep “damage control” to the low-level people doing the bidding of the high-level people. Now we know that the political class was aiding and abetting – and probably continues to aid and abet – torture.
In light of these revelations, I would like to suggest that the President now pardon all the low-level soldiers who have been convicted for the abuses at Abu Ghraib. These soldiers should be pardoned because they were doing the extralegal bidding of their superiors in the Executive and Congress. As a matter of international law these pardons will not disculpate them from liability before international criminal tribunals, but it would seem that if internal law is going to be used to protect the high-level civilians and military who ordered these horrendous acts, then that same internal law should be used to let the low-level soldiers doing the bidding off the hook. Impunity should flow all the way down, not just among elites who can organize their protection scheme like a mafia family.
Let us not allow our leaders to hide behind the skirts of Lynndie England.
These continued revelations about our leaders' willingness to torture people - almost all of whom are non-white and foreigners - brings me back to a wonderful novel by the French author Romain Gary called Chien Blanc
or White Dog
. Gary was married to Jean Seberg - the woman in Breathless
with Jean Paul Belmondo - in the 60’s. She was close to members of the Black Panther Party and was alleged to have been pregnant with the child of one of them. The FBI at the time was said to have harassed her to no end and Gary believed that their harassment caused her to have a miscarriage. It was said that she attempted suicide on the anniversary of that miscarriage every year afterwards.Chien Blanc
is the story of a German shepherd dog that Gary adopted but was also a metaphor for America at the time. The dog was very sweet and loving. Then one day, a black man happened by the house and the dog went into a homicidal rage at the site of the black man. Over the course of the novel, the Frenchman learns about the practice then in America of training dogs to be "white dogs": i.e. dogs that will attack a person of color but be absolutely normal with white people. Gary describes in his book discussing the phenomenon of his dog at cocktail parties with good old left-leaning Americans in the 60’s. He also talks about later on getting phone calls from some of those left-leaning persons wishing to “get the white dog off his hands.” He understood that they were willing to pay him significant sums to have themselves guarded by such a white dog.
The members of Congress and others who have tut-tutted about the torture done all these years since 9/11 to foreigners and Americans (essentially all of whom are non-whites), we now know were in fact briefed on what was going on and in fact approved of it and encouraged it. Those members of Congress remind me of those people calling Gary in private and seeking to purchase his white dog. The timidity of the protests are as damning as the acquiescence. Vocal supporters of torture in the US right-wing media at least have the willingness to say where they stand in public, if saying one supports torture is something of which to be proud.
But let us celebrate the emergence into the light of our leaders - of both the Executive and Congress, and of both parties - as avid proponents of state torture. Let us recognize their willingness to torture in our names. Let us revel in their allowing their dark side to triumph in the interest of protecting our American way of life. The truth shall truly set us free of any illusion that our leaders want our city on the hill to be anything more than a dark cell and that the shining light to humanity is to be anything more than a lightbulb kept on all night to keep some human we hate awake during sessions of sleep deprivation.
All these things have been done in our name as Americans. Let us also accept that responsibility as we have not resisted this in a meaningful manner. We suspected but did not want to know about these things done in our names. We were good Americans like the good Germans in another period.
As we revel in what we have allowed ourselves to become, I would suggest however that we keep in mind a couple of things about state torture. When we look back at the days of the Salem Witch Trials, I do not remember much discussion in the literature about this person or that person who was burned at the stake having truly been a witch. When we look back on the Spanish Inquisition (the Brazilian version of which my ancestors escaped from to the Caribbean), I do not remember much discussion in the literature about this person or that being truly possessed of the devil or truly a heretic. When we look at the Soviet gulag, I do not remember much discussion in Alexander Solzhenitsyn about whether the persons tortured in the salt mines were truly enemies of the state. When we look at the Moscow show trials, I do not remember much discussion as to whether the confessing defendants did the crimes of which they were charged and convicted. When we look at the Nazis in Lyon under Klaus Barbie, I do not remember the focus being on any criminality under the current law of the persons tortured for fighting against the occupying power. When we look back to Chile, Argentina, or Brazil, I do not remember our focus being on the alleged crimes of the persons disappeared, tortured, and killed.
In all of these settings where a state feared and a state tortured (always of course in the name of protecting its good people) what we remember is the state’s barbarity, not the alleged or actual barbarity of the state’s victims. And, in the future, we will talk of this period in America as a time of transnational state torture, aided and abetted by the political classes and with the acquiescence of the courts.
I still look for someone who will say “Round up these leaders and charge them with the crimes they have committed or caused to be committed.” In return, all I can hear is a deafening silence. I see human rights groups struggling daily to raise awareness and get courts to do something meaningful, somewhere in the world but there appears to be a conspiracy of silence that whispers “It is OK to do this to these people because we all know they are all bad.”
And, for those who might think this can not happen in America, let me remind them of a conversation at that same Duke conference about the alleged essential good nature of Americans. I took the liberty of pointing out in that conversation that not far from Durham - in Edenton, North Carolina - a 14 year old ancestor of mine named Barbary, born free in Africa, became a slave when she was sold like a horse, or a cow, or a dog. We must not forget that in our souls we are capable also of great evil and that the battle for human justice requires us to recognize the humanity in each human and to say that no one is beyond the law. Our political leaders have forgotten that since 9/11 and we see how far they are willing to go into depravity.
We must preserve memory. Remember what we are doing and explain to your grandchildren what you did when it was going on. In an earlier generation the question would have been what did you do when they came to intern your Japanese-American neighbor, or when the night-riders came, or maybe ask any JAG officer with any memory of World War II about Plot E.
Some may take comfort in the fact that Americans of all races, religions, genders etc may be like those left-leaning persons decrying the white dog, but seeking its protection in private. I have been told of students of color willing to go along with torture just like these Congresspersons because “9/11 was real.” The problem we are facing is not a black/white thing but is a question of what is the nature of the American soul. That is the soul for which I fight.
The one modest power I have is the one that James Meredith reminded me of back in 2006. I have the power of a citizen - my connection to the sovereign. I can assert that power – weak as it is – and hope that I am heard. Once again, no doubt falling on deaf ears again, I say to you refluat stercus
. Torture is against the law even if the lawmakers are willing to go along with it. Now do something about those willing to countenance state torture if you really stand for American values.Benjamin Davis is a professor at the University of Toledo College of Law