Sunday, September 19, 2010

"State Secrets" and European indictments, part 2

Scott Horton has a post on the real reason for the 9th Circuit Court of Appeals' anti-legal decision that evidence of criminal conduct by high officials of the United States government, even already public evidence, must be shielded from admissibility in a court of law by a doctrine of “state secrets.” Thus, no victim of a government crime can seek a remedy in an American “court.” See part 1 here. But trials about American kidnapping, torture and indefinite detention of people, often innocents, are now occuring throughout Europe. European citizens, prosecutors and courts are standing up for the rule of law not only in Italy where 23 CIA agents were convicted in absentia for the “rendition” of a shaikh to be tortured in Egypt, as I mentioned in the first post, but in Spain, Germany, and Poland as well. The Convention against Torture, signed by Ronald Reagan in 1986 and ratified by Congress in 1994 requires the government of the offending country to hold legal hearings against those officials of whom there is significant evidence about ordering or participating in torture. See here. But the Obama administration – led by a man who taught constitutional law - has ducked this.

Obama, as the campaign and his role as a teacher of the law, shows, knows better. Even he has been dragged down by the military-intelligence-thinktank-media-political complex - for short, the war complex. Too many high officials have done sadistic, degraded, murderous and counterproductive things (at the principals meeting in the basement of the White House, every foreign policy leader of the Bush administration with the possible exception of Colin Powell planned the details of torture; Bush himself has now averred publically and proudly - he forgot himself completely - that he ordered waterboarding. CIA official Jose Rodriguez who destroyed tapes of torture because he knew the horror internatonally they would produce is, as it were, a walking prisoner. Everyone knows. Interestingly 2 tapes of the 93 have survived and might emerge in a court of law at some point. The outrage would very likely include intelligent questioning by Americans about whether the covert opeations wing of the CIA should exist (as opposed to its knowledge gathering and assessment wing). The brief answer: no. If any legal proceeding arises about the Rodriguez case, it will not be a difficult one to prosecute.

Obama of course could allow proceedings, initiated by an independent prosecutor – that is observe the law – and then pardon Rodriguez and other criminals because of the situation after 9/11. That too would be decadent - the two remaining films probably reveal Cheney's America more graphically than Abu Ghraib - but less destructive of law and what was or might be decent about America. As it stands, this is no longer the country of the Bill of Rights; it is now the bipartisan opponent of the sometimes shining principles which made it great. And yet America, as Langston Hughes suggests in another context, will be. Obama probably reached his decision because the criminality is so extensive, including most of the highest officials of the last administration.

In addition, America has profoundly undermined the rule of law internationally. These European governments are operating for law, and for the rule of law in international affairs for which America had for a long time, at least in principle, stood. In practice, Cold War and subsequent foreign policy and CIA actions – from Vietnam to South Africa to Guatemala to Iraq - have been so markedly at odds with these principles that perhaps there is no necessity to rehearse the tale. Still, America following World War II, led by Supreme Court and Nuremberg prosecutor Robert L. Jackson, fought for the adoption of the Article 2, section 4 of the UN charter which bars aggression. That was the crime under which the Nuremberg and Tokyo war criminals were tried and executed. America fought for the Geneva Conventions and the Convention against Torture even though the CIA was simultaneously overseeing tortures throughout Latim America, for instance by Battalion 316 in Honduras – see my Must Global Politics Constrain Democracy?, ch. 5.

Still the United States was, in a very central way, publically a fighter for intenational law and for holding international criminals to account. Again, one must not look too hard at the practices of Eisenhower (say in Iran, Guatemala or Lebanon), Johnson, Nixon et al. But the principle meant something. America supported and often oversaw the depravity of others; it was not, as it is now, publically a regime of depravity. To his credit, Obama ended much of the torture (in secret prisons or dark sites, however, we have only his word for it). But by preventing any legal proceedings, by shielding the criminals, he has made his administration - under the Convention against Torture - an accomplice to these crimes. Making America unspeakable was what Cheney did; attempting to hide these crimes in daylight, as Obama and Hilary Clinton do, gives new meaning to the word hypocrisy, They criticize tortures by regimes, often ones that the US has rendered kidnapped prisoners to. The eyes of Europe are an American-inspired mirror for American war crimes.

The Bush-Cheney administration struck at the core of international law – the laws against torture.. It was a criminal organization, a vast apparatus of paid informants, random pickups, and demonstrative torture, not for information - torture gets only what the torturer wants to hear - but to scare Arabs and others. Inside America, Bush rightly sought in words to isolate Al-Qaida from a billion Muslims; in Guantanamo, Bagram and Abu Ghraib, Bush’s random torture of innocents dwarfed his torture of enemies and had the effect of linking the horrors of Al-Qaida to the deep grievances of Arabs and extending them far more widely among Muslims. It is hard to imagine what more disastrous and endangering policy for Americans – one good only for the increasing dominance of a self-destructive war complex – the US government could have pursued (Obama, of course, has now added random murders of innocents from afar with drones, a serious competitor).

Bush-Cheney also enlisted the help of other secret police organizations, MI-6 in Britain and Italian intelligence. Two of the latter’s members were sentenced in the same trial as the 23 Americans; Tory Prime Minister Cameron has launched legal proceedings in Britain – with far more integrity about law and the rule of law than Obama – which will have serious consequences for high officials, possibly including Tony Blair (the taint of torture haunts Blair as the protests against his marketing of his autobiography, particularly in Dublin, show. See here .

Presidents like Bush and Clinton liked to invoke the ‘democracies don’t go to war with one another” hypothesis. This ostensible insight of political science is riddled with bad statistics. See here, here and here. For instance, political "science" draws a misguided and morally speaking apologetic, operational distinction between a war (in a war, both sides must lose a combined total of 1000 soldiers killed) and an intervention (which involves few American deaths or deaths of soldiers in battle on the overthrown democracy’s side). Thus, the disappeared in Chile in 1973 vanish from this “science” and the rhetoric of Presidents. This deception results in the exclusion of more than a dozen covert overthrows of non-white democracies by the US during and after the Cold War. If this is "peace" toward other democracies, what is aggression?

But another aspect of the inimicality of the American government to decency is its all out attack on the core of international law. America tolerates, even celebrates torturers, Cheney, Bush, Rice et – in the news media, in occasional events - as if their hands did not reek. It is this bipartisan undermining of an international regime concerning minimal decency about war which Obama has now consolidated. Public evidence cannot be used in the Mohamed case, the 9th District "Court" has ruled, because of “state secrets.” The evidence, which would result in damages in an American court, would be invoked in Europe to prosecute and convict Americans. But that evidence - what is already in the public record- will be so used anyway. High officials of the “law” in America may attempt to ignore the Bill of Rigths and the treaties against torture ratified by the United States, and hence according the Supremacy Clause (Article 6 section 2 of the Constitution) the highest law of the land. But the renditions for torture – disappearances - are a great crime. As Scott says:

“Under the International Convention for the Protection of All Persons from Enforced Disappearance, [see here] which adopts the position that the U.S. Justice Department took in 1946, the crime of disappearance connected to torture is a crime against humanity, with no statute of limitations and no defense of superior orders applicable.”

Presidents may carry on as bloody tyrants, or in Obama’s case, as bipartisan accomplices to such tyrants. Fortunately, in at least parts of Europe, retaining the onetime American emphasis on laws against torture and disappearance, these “decisions” hold no weight. Fortunately, Americans like Andrew Sullivan and many of the rest of us, including the editoial pages of the Los Angeles Times and New York Times remember and value the Bill of Rights, international law and what America was. Scott uses the term risible for what Eric Holder asked, what the 9th Circuit Court of Appeals ruled. It is an unusual word, and of government justifications in this matter, all too true. Shame might have silenced honorable judges. Would that the seriousness of the acts was not so great.

Here is Scott’s post:

State Secrecy and Official Criminality
By Scott Horton

The Ninth Circuit Court of Appeals split down the middle in finding (PDF) that the Justice Department was entitled to halt a civil lawsuit between private parties because of the threat that the suit would expose state secrets. By the margin of a single vote, it reversed the decision of a panel of the same court (PDF) holding that the doctrine could only be applied to individual pieces of evidence, not to entire lawsuits.

The case, Mohamed v. Jeppesen Dataplan, involved claims by an individual that he was seized and then tortured in a proxy arrangement directed by the CIA. Jeppesen Dataplan was directly involved, restraining and transporting the victims with knowledge that they would be tortured; that knowledge is exhibited, for example, in briefings to the company’s employees. These facts were established beyond any reasonable doubt without the need to turn to classified information. Indeed, one of the most respected courts in the English-speaking world—the Court of Appeal in London–had already viewed the formidable evidence and demanded a criminal investigation, now pending. The British court concluded, just as the Ninth Circuit was legally obligated to do, that state-secrecy claims could not be used to block discovery of evidence of crimes. Under the International Convention for the Protection of All Persons from Enforced Disappearance, which adopts the position that the U.S. Justice Department took in 1946, the crime of disappearance connected to torture is a crime against humanity, with no statute of limitations and no defense of superior orders applicable.

The Holder Justice Department would have us believe that it is protecting state secrets essential to our security. That posture is risible, and half of the court saw through it. The dilemma faced by the Justice Department was rather that evidence presented in the suit would likely be used in the future (not in the United States, obviously) to prosecute those who participated in the extraordinary renditions process. Twenty-three U.S. agents have already been convicted for their role in a rendition in Milan. Prosecutors in Spain have issued arrest warrants for a further 13 U.S. agents involved in a botched rendition case that touched on Spanish soil. Prosecutors in Germany have opened a criminal investigation into the use of Ramstein AFB in connection with torture and illegal kidnappings. Prosecutors in Poland are pursuing a similar matter. And Prime Minister David Cameron was recently forced to brief President Obama on his decision to direct a formal inquiry which could lead to prosecutions tied directly to the subject matter of the Mohamed case. This is the remarkable background to the case decided by the Ninth Circuit, and remarkably not a single word about this appears anywhere in the opinion—or even in most of the press accounts about it.
Both the New York Times and the Los Angeles Times have called the Department on its acts of constitutional treachery. From the West Coast:

'The decision to short-circuit the trial process is more than a misreading of the law; it’s an egregious miscarriage of justice. That’s obvious from a perusal of the plaintiffs’ complaint. One said that while he was imprisoned in Egypt, electrodes were attached to his earlobes, nipples and genitals. A second, held in Morocco, said he was beaten, denied food and threatened with sexual torture and castration. A third claimed that his Moroccan captors broke his bones and cut him with a scalpel all over his body, and poured hot, stinging liquid into his open wounds.'

From New York:

'The state secrets doctrine is so blinding and powerful that it should be invoked only when the most grave national security matters are at stake — nuclear weapons details, for example, or the identity of covert agents. It should not be used to defend against allegations that if true, as the dissenting judges wrote, would be “gross violations of the norms of international law.” All too often in the past, the judges pointed out, secrecy privileges have been used to avoid embarrassing the government, not to protect real secrets. In this case, the embarrassment and the shame to America’s reputation are already too well known.'

The majority opinion is so thoroughly unconvincing that the court makes a pathetic plea to other branches of the government to do what is properly its function: fixing the claims of torture victims and awarding them damages.

By signing the Convention Against Torture, the United States made an unequivocal commitment to the international community to compensate those who are tortured by its agents. The Ninth Circuit has made a liar out of Uncle Sam and a mockery of its duty to uphold the law proscribing torture.


mihai said...

As the bad guy Ossama bin Laden has said in his video message to U.S.: "As for the war criminals which you censure and form criminal courts for - you shamelessly ask that your own are granted immunity!!"

Alan Gilbert said...

Bin Laden, an American agent and a murderer, dreamed of bringing down America as he had, with CIA help, Russia. But only Bush-Cheney (and sadly now Obama) could make it happen. Stupidity and lack of principle (or decency)...

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