Featured stories in this issue…
The Assassination of Martin Luther King, Jr.: A Different Verdict
In December, 1999, a jury in Memphis, Tennessee, concluded that
Martin Luther King, Jr. was assassinated by a conspiracy involving
Loyd Jowers and “others, including governmental agencies.”
Farewell to the Fifth Horseman of the Apocalypse
History will judge him, but so must we. Democracy requires
accountability or it isn’t democracy.
Justice After Bush: Prosecuting An Outlaw Administration
Yes, democracy requires accountability or it isn’t democracy. Open
criminality is a cancer on democracy. It implicates all who know of
the conduct and fail to act. Such complicity presents a practical
crisis because a government that is allowed to torture will inevitably
transgress other legal limits. But it also presents an existential
political crisis. Many democracies have simply collapsed as the people
permitted their leaders to abandon the rule of law in the face of
alleged external threats.
U.S. Autism Epidemic Probably Caused by Environmental Factors
Across the nation, the numbers of autistic children have increased
dramatically over the past 15 years. “It’s time to start looking for
the environmental culprits responsible for the remarkable increase in
the rate of autism…,” says a leading scientist.
We’re Not Doomed, but We’re in Danger
The first and most important impact of global warming will be an
acute and permanent crisis of food supply. In that situation, wars
become probable. “Countries that are unable to feed themselves are
unlikely to be reasonable about it…. There is a probability of wars,
even nuclear wars, if the temperature rises more than two to three
degrees Celsius [4 to 5 degees Fahrenheit].”
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From: Christian Century …………………………….[This story printer-friendly]
March 15, 2000
THE KING ASSASSINATION: AFTER THREE DECADES, ANOTHER VERDICT
[Rachel’s introduction: In December, 1999, a jury in Memphis, Tennessee, concluded that Martin Luther King, Jr. was assassinated by a conspiracy involving Loyd Jowers and “others, including governmental agencies.”]
By James W. Douglass
[A PDF of this article is available (1.3 Mbytes). Other useful materials on the King assassination include a longer article by James W. Douglass, a timeline of events, and a transcript of a talk given in 2003 by William Pepper, who was the King family’s lawyer in their 1999 civil suit against Lloyd Jowers.]
In December [1999] a jury in Memphis, Tennessee, concluded that Martin Luther King Jr. was assassinated by a conspiracy involving Loyd Jowers and “others, including governmental agencies.” [A full transcript of the trial is available online.] Almost 32 years after King’s murder at the Lorraine Motel in Memphis on April 4, 1968, a court extended the circle of responsibility for the assassination beyond the now deceased James Earl Ray, the man sentenced for the crime.
Explaining how this verdict came about requires some background. In 1969 Ray pleaded guilty to the murder. His lawyer, Percy Foreman, had threatened to throw the case if Ray let it go to trial. Before receiving his 99-year sentence, Ray answered Judge Preston Battle’s question as to his guilt with a qualified, “Yes, legally, yes.” He told the judge he disagreed with the government officials who denied there was a conspiracy. Three days later, Ray fired Foreman and asked Judge Battle for a new trial. For the rest of his life Ray continued to seek a new trial, maintaining that he had been set up in the King murder by a shadowy gunrunner named Raul. Ray died in prison in 1998.
William Pepper, who began investigating the King assassination in 1978, became convinced that Ray was innocent. In 1995 Pepper published Orders to Kill: The Truth Behind the Murder of Martin Luther King, a labyrinthine investigative work that detailed the tangle of evidence he had found pointing to a murder conspiracy that included government officials. The King family contacted Pepper in 1997 and asked to see his evidence. Convinced by it, the Kings supported Ray’s request for a trial.
[Read a transcript of a long talk given by William Pepper in 2003.]
After Ray’s death, the King family asked President Clinton to set up a commission similar to South Africa’s Truth and Reconciliation Commission that would offer legal immunity in exchange for truth telling. When their proposal was turned into a “limited reexamination” of the murder by the Justice Department, the Kings tried another route to get at the evidence: they filed a wrongful death lawsuit against Jowers, who said he had been part of a conspiracy to kill King.
The complaint actually reads King v. Jowers and Other Unknown Co- Conspirators. As soon became evident at the trial last fall, the real defendants were the anonymous coconspirators who stood in the shadows behind Jowers, the former owner of a Memphis bar and grill. The King family, represented by Pepper, was in effect charging U.S. intelligence agencies–particularly the FBI and army intelligence– with organizing, subcontracting and covering up the assassination. Needless to say, this was a difficult case to make.
Many qualifiers have been attached to the verdict in King v. Jowers. It came not in criminal court but in civil court, where the standards of evidence are much lower than in criminal court. (For example, the plaintiffs used unsworn testimony made on audiotapes and videotapes.) Furthermore, the plaintiffs (the King family) and the defendant (Jowers) agreed ahead of time on much of the evidence.
But these observations are not entirely to the point. Because of the government’s “sovereign immunity,” it is not possible to put a U.S. intelligence agency in the dock of a U.S. criminal court. Such a step would require authorization by the federal government which is not likely to indict itself. The civil case in Memphis laid out the strange story of the murder, and in the end 12 jurors (six black and six white) said: Guilty as charged–King was murdered by an intricate plot that included government agencies.
Jowers, 73, attended only the first three days of the trial. He was excused by the judge because of illness. He said through his attorney, Lewis Garrison, that he would plead the Fifth Amendment if subpoenaed. However, in 1993 Jowers–against Garrison’s advice and prompted by Pepper’s investigation–appeared on Prime Time Live with Sam Donaldson and said he had been asked to help in the murder of King and had been told there would be a decoy in the plot. He was also told that the police “wouldn’t be there that night.”
In that interview, the transcript of which was read to the jury in the Memphis courtroom, Jowers said the man who asked him to help in the murder was a Mafia-connected produce dealer named Frank Liberto. Liberto, now deceased, had a courier deliver $100,000 for Jowers to hold at his restaurant, Jim’s Grill, the back door of which opened onto the dense bushes across from the Lorraine Motel. Jowers said he was visited the day before the murder by a man named Raul, who brought a rifle in a box.
The jury in Memphis also heard a tape recording of a two-hour-long confession Jowers made at a fall 1998 meeting with Martin Luther King’s son Dexter and former UN ambassador Andrew Young. On the tape Jowers says that the meetings to plan the assassination occurred at Jim’s Grill. He said the planners included undercover Memphis Police Department officer Marrell McCollough (who now works for the Central Intelligence Agency), MPD Lieutenant Earl Clark (who died in 1987), a third police officer, and two men Jowers did not know but thought were federal agents.
Young, who witnessed the assassination, can be heard on the tape identifying McCollough as the man kneeling besides King’s body on the balcony in a famous photograph taken right after the shooting. According to witness Colby Vernon Smith, McCollough had infiltrated a Memphis community organizing group, the Invaders, which was working with the Southern Christian Leadership Conference. In his trial testimony Young said the MPD intelligence agent was “the guy who ran up [the balcony stairs] with us to see Martin.”
JOWERS SAYS on the tape that right after the shot was fired he received a smoking rifle at the rear door of Jim’s Grill from Clark. He broke the rifle down into two pieces and wrapped it in a tablecloth. Raul picked it up the next day. Jowers said he didn’t actually see who fired the shot that killed King, but thought it was Clark, the MPD’s best marksman. Young testified that his impression from the 1998 meeting was that the increasingly frail Jowers “wanted to get right with God, wanted to confess it and be free of it.” Jowers denied, however, that he knew the plot’s purpose was to kill King–a claim which seemed implausible to Dexter King and Young. Jowers has continued to fear jail, and he had directed Garrison to defend him on the grounds that he didn’t know the target of the plot was King. But his interview with Donaldson suggests he was not naive on this point.
Jowers’s story opened the door to testimony on other areas:
Background to the assassination: James Lawson, King’s friend and an organizer with SCLC, testified that King’s stands on Vietnam and the Poor People’s Campaign had created enemies in Washington. He said King’s speech at New York’s Riverside Church on April 4, 1967, which condemned the Vietnam war and identified the U.S. government as “the greatest purveyor of violence in the world today,” provoked intense hostility in the White House and FBI.
Hatred and fear of King deepened, Lawson said, in response to his plan to hold the Poor People’s Campaign in Washington, D.C. King wanted to shut down the nation’s capital in the spring of 1968 through massive civil disobedience until the government agreed to abolish poverty. King saw the Memphis sanitation workers’ strike as the beginning of a nonviolent revolution that would redistribute income. “I have no doubt,” Lawson said, “that the government viewed all this seriously enough to plan his assassination.”
Evidence of a local conspiracy: On the night of April 3, 1968, Floyd E. Newsum, a black firefighter and civil rights activist, heard King’s “I’ve Been to the Mountain Top” speech at the Mason Temple in Memphis. On his return home, Newsum returned a phone call from his lieutenant and was told he had been temporarily transferred, effective April 4, from Fire Station 2, located across the street from the Lorraine Motel, to Fire Station 31. Newsum testified: “I was not needed at the new station. I was needed at my old station. I was eventually told I was transferred by orders of the Police Department.”
The only other black firefighter at Fire Station 2, Norvell E. Wallace, testified that he too received orders on the night of April 3 for a temporary transfer to a fire station far removed from the Lorraine Motel. The officer told Wallace vaguely that he had been threatened.
“I guess it was because I was putting out fires,'” Wallace told the jury with a smile. “I have never to this day been given a satisfactory explanation.”
On the afternoon of April 4, a black Memphis Police Department detective, Ed Redditt, was removed from his surveillance post at Fire Station 2. Redditt had been watching King and his party across the street. Redditt testified that MPD Intelligence Officer Eli Arkin came to Fire Station 2 later that afternoon to take him to Central Headquarters. There he was brought to Police and Fire Director Frank Holloman, a retired FBI agent. During his 25 years in the FBI, Holloman had been head of the Memphis field office (1959-64) as well as J. Edgar Hoover’s appointments secretary. Holloman told Redditt that a secret service agent had just flown in from Washington with information about a threat on Redditt’s life. He ordered him to go home.
“I objected,” Redditt said. “Director Holloman told Arkin to take me home.” When they arrived at Redditt’s house, the car radio announced that King had just been assassinated at the Lorraine Motel. Redditt testified that nothing further was ever said to him by the authorities about the threat on his life.
Former MPD Captain Jerry Williams followed Redditt to the witness stand. Williams had been responsible for forming a security unit of black officers whenever King came to Memphis. For King’s April 3 arrival, however, Williams was not asked to form that bodyguard. He was told that someone in King’s entourage had asked for no security.
Philip Melanson, author of The Martin Luther King Assassination (1991), described his investigation into the April 4 pullback of four tactical police units that had been patrolling the immediate vicinity of the Lorraine Motel. When Melanson interviewed MPD Inspector Sam Evans (now deceased) on why the units were pulled back five blocks on the morning of April 4, in effect making an assassin’s escape much easier, Evans said that a local pastor connected with King’s party had ordered it. The pastor, however, denied this to Melanson.
OLIVIA CATLING lived a block away from the Lortraine on Mulberry Street. Carling had planned to walk down the street the evening of April 4 in the hope of catching a glimpse of King at the motel. She testified that when she heard the shot a little after six o’clock, she said, “Oh, my God, Dr. King!” She ran with her two children and a neighbor’s child to the corner of Mulberry and Huling streets, just north of the Lorraine. She saw a man in a checkered shirt come running out of the alley beside a building across from the Lorraine. The man jumped into a green 1965 Chevrolet just as a police car drove up behind him. He gunned the Chevrolet around the corner and up Mulberry past Catling’s house, moving her to exclaim, “It’s gonna take us six months to pay for the rubber!” The police, she said, ignored the man and blocked off a street, leaving his car free to go the opposite way.
I visited Catling in her home, and she told me the man she had seen running was not James Earl Ray. “I will go into my grave saying that was not Ray, because the gentleman I saw was heavier than Ray.”
“The police,” she told me, “asked not one neighbor [around the Lorraine], ‘What did you see?’ Thirty-one years went by. Nobody came and asked one question. I often thought about that. I even had nightmares over that, because they never said anything. How did they let him get away?”
Catling also told me that from her vantage point on the corner of Mulberry and Huling she could see a fireman standing alone across from the motel when the police drove up. She heard him say to the police, “The shot came from that clump of bushes,” indicating the heavily overgrown brushy area facing the Lorraine and adjacent to Fire Station 2.
The crime scene: A 1993 affidavit from former SCLC official James Orange was read into the record. Orange said that on April 4, “James Bevel and I were driven around by Marrell McCollough, a person who at that time we knew to be a member of the Invaders, a local community organizing group, and who we subsequently learned was an undercover agent for the Memphis Police Department and who now works for the Central Intelligence Agency…. [After the shot, when Orange saw Dr. King’s leg dangling over the balcony], I looked back and saw the smoke. It couldn’t have been more than five to ten seconds. The smoke came out of the brush area on the opposite side of the street from the Lorraine Motel. I saw it rise up from the bushes over there. From that day to this time I have never had any doubt that the fatal shot, the bullet which ended Dr. King’s life, was fired by a sniper concealed in the brush area behind the derelict buildings.
“I also remember then turning my attention back to the balcony and seeing Marrell McCollough up on the balcony kneeling over Dr. King, looking as though he was checking Dr. King for life signs.
“I also noticed, quite early the next morning around 8 or 9 o’clock, that all of the bushes and brush on the hill were cut down and cleaned up. It was as though the entire area of the bushes from behind the rooming house had been cleared ….
“I will always remember the puff of white smoke and the cut brush and having never been given a satisfactory explanation.
“When I tried to tell the police at the scene as best I saw they told me to be quiet and to get out of the way.
“I was never interviewed or asked what I saw by any law enforcement authority in all of the time since 1968.”
Also read into the record were depositions made by Solomon Jones to the FBI and to the Memphis police. Jones was King’s chauffeur in Memphis. The FBI document, dated April 13, 1968, says that after King was shot, when Jones looked across Mulberry Street into the brushy area, “he got a quick glimpse of a person with his back toward Mulberry Street…. This person was moving rather fast, and he recalls that he believed he was wearing some sort of light-colored jacket with some sort of a hood or parka.” In his 11:30 P.M., April 4, 1968, police interview, Jones provides the same basic information concerning a person leaving the brushy area hurriedly.
Maynard Stiles, who in 1968 was a senior official in the Memphis Sanitation Department, confirmed in his testimony that the bushes near the rooming house were cut down. At about 7:00 A.M. on April 5, Stiles told the jury, he received a call from MPD Inspector Sam Evans “requiring assistance clearing brush and debris from a vacant lot near the site of the assassination. I called another superintendent of sanitation. He assembled a crew, went to the site, and cleaned up the site in a slow, methodical, meticulous manner under the direction of the police department.” Stiles identified the site as an area overgrown with brush and bushes across from the Lorraine Motel.
Within hours of King’s assassination, the crime scene that witnesses were identifying to the Memphis police as a cover for the shooter had been sanitized by orders of the police.
The rifle: The rifle that government authorities have maintained is the murder weapon was found the night of April 4 in the Main Street doorway of the Canipe Amusement Company, one block from the Lorraine. It was dropped accidentally, they say, by Ray just before he jumped in his white Mustang and drove to Atlanta. The 30.06 Remington Gamemaster rifle was held up at the witness stand by Criminal Court Judge Joe Brown, who had presided over two years of hearings into the evidence concerning the rifle. “It is my opinion,” he told the jury, “that this is not the murder weapon.”
“Sixty-seven percent of the bullets from my tests,” Brown said, “did not match the Ray rifle.” He added that the unfired bullets found wrapped with it in a blanket were metallurgically different from the bullet taken from King’s body, and therefore were from a different lot of ammunition. And because the rifle’s scope had not been sited, Brown said, “this weapon literally could not have hit the broad side of a barn.”
Circuit Court Judge Arthur Hanes Jr. of Birmingham, Alabama, testified that he had been Ray’s attorney in 1968 (before Foreman) and had interviewed Guy Canipe, owner of the Canipe Amusement Company and a witness to the dropped bundle that included the rifle and unfired bullets. That dropped bundle was crucial to the case against Ray. Hanes said that Canipe (now deceased) provided “terrific evidence”: “He said that the package was dropped by a man heading south on Main Street about ten minutes before the shot was fired.”
When I spoke with Judge Hanes after the trial about the startling evidence he had received from Canipe, he commented, “That’s what I’ve been saying for 30 years.”
The mysterious Raul: In a 1995 deposition by Ray that was read to the jury, Ray told of meeting a man named Raul in Montreal in the summer of 1967, three months after Ray had escaped from a Missouri prison. According to Ray, Raul guided Ray’s movements, gave him money for the Mustang car and the rifle, and used both to set him up in Memphis.
ANDREW YOUNG and Dexter King described their meeting with Jowers and Pepper at which Pepper had shown Jowers a spread of photographs, and Jowers picked out one as the per son named Raul who brought him the rifle to hold at Jim’s Grill. Pepper displayed the same spread of photos in court, and Young and King pointed out the photo Jowers had identified as Raul. (Private investigator John Billings said in separate testimony that this picture was a passport photograph from 1961, when Raul had immigrated from Portugal to the U.S.)
The additional witnesses who identified the photo as Raul’s included: British merchant seaman Sidney Carthew, who in a videotaped deposition from England said he had met ! Raul (who offered to sell him guns) and a man he thinks was Ray (who wanted to be smuggled onto his ship) in Montreal in the summer of 1967; Glenda and Roy Grabow, who recognized Raul as a gunrunner they knew in Houston in the ’60s and ’70s and who told Glenda in a rage that he had killed Martin Luther King; Royce Wilburn, Glenda’s brother, who also knew Raul in Houston; and British television producer Jack Saltman, who had obtained the passport photo and showed it to Ray in prison, who identified it as the photo of the person who had guided him.
Saltman and Pepper, working on independent investigations, located Raul in 1995. He was living quietly with his family in the northeastern U.S. It was there in 1997 that journalist Barbara Reis of the Lisbon Publico, working on a story about Raul, spoke with a member of his family. Reis testified that she had spoken in Portuguese to a woman in Raul’s family who, after first denying any connection to Ray’s Raul, said that “they” had visited them. “Who?” Reis asked. “The government,” said the woman. She said government agents had visited them three times over a three-year period. The government, she said, was watching over them and monitoring their phone calls. The woman took comfort and satisfaction in the fact that her family (so she believed) was being protected by the government.
A broader conspiracy: Carthel Weeden, captain of Fire Station 2 in 1968, testified that he was on duty the morning of April 4 when two U.S. Army officers approached him. The officers said they wanted a lookout for the Lorraine Motel. Weeden said they carried briefcases and “indicated they had cameras.” Weeden showed the officers the roof of the fire station. He left them at the edge of its northeast corner behind a parapet wall. From there the officers had a bird’s-eye view of Dr. King’s balcony doorway and could also look down on the brushy area adjacent to the fire station.
Former CIA operative Jack Terrell testified by videotape that his best friend, J. D. Hill, had confessed to him shortly before Hill’s death that he had been a member of an army sniper team in Memphis assigned to shoot “an unknown target” on April 4. After training for a triangular shooting, the snipers were taking up positions in a water- tower and two buildings in Memphis when their mission was suddenly canceled. Hill said he realized the next day that the team must have been part of a contingency plan to kill King if another shooter failed.
Douglas Valentine said that while researching his book The Phoenix Program (1990), on the CIA’s notorious counterintelligence program against Vietnamese villagers, he talked with veterans in military intelligence who had been redeployed from Vietnam to the domestic front. They told him that in 1968 the army’s 111th Military Intelligence Group kept Martin Luther King under 24-hour-a-day surveillance. Its agents were in Memphis April 4. Valentine wrote in The Phoenix Program that they “reportedly watched and took photos while King’s assassin moved into position, took aim, fired and walked away.”
Cover-up: Walter Fauntroy, Dr. King’s colleague and a 20-year member of Congress, chaired the subcommittee of the 1976-78 House Select Committee on Assassinations that investigated King’s assassination. Fauntroy testified in Memphis that in the course of the HSCA investigation “it became apparent that we were dealing with very sophisticated forces.” He discovered electronic bugs on his phones and TV set. When Richard Sprague, HSCA’s first chief investigator, said he would make available all CIA and FBI records, he became a focus of controversy and media attacks. Sprague was forced to resign. His successor made no demands on U.S. intelligence agencies.
Such pressures contributed to the committee’s ending its investigation, in Fauntroy’s words, “without having looked at all the evidence.” Its formal conclusion was that Ray assassinated King, that he probably had help, and that the government was not involved.
WHEN I interviewed Fauntroy in a van on his way back to the Memphis Airport, I asked about the implications of his statements in an April 4, 1997, Atlanta Constitution article. The article said Fauntroy now believed “Ray did not fire the shot that killed King and was part of a larger conspiracy that possibly involved federal law enforcement agencies,” and added: “Fauntroy said he kept silent about his suspicions because of fear for himself and his family.”
Fauntroy told me that when he left Congress in 1991 he had the opportunity to read through his files on the King assassination, including raw materials that he’d never seen before. Among them was information from J. Edgar Hoover’s logs. There he learned that in the three weeks before King’s murder the FBI chief held a series of meetings with “persons involved with the CIA and military intelligence in the Phoenix operation in Southeast Asia.” Fauntroy also discovered there had been Green Berets and military intelligence agents in Memphis when King was killed. “What were they doing there?” he asked.
When Fauntroy had talked about his decision to write a book about what he’d “uncovered since the assassination committee closed down,” he was promptly investigated and charged by the Justice Department with having violated his financial reports as a member of Congress. His lawyer told him he could not understand why the Justice Department would bring up a charge on the technicality of one misdated check. Fauntroy said he interpreted the Justice Department’s action to mean: “Look, we’ll get you on something if you continue this way…. I just thought: I’ll tell them I won’t go and finish the book, because it’s surely not worth it.”
In an interview after the trial, former MPD detective Ed Redditt told me his testimony before the HSCA had been a “total farce.” Redditt was subpoenaed by the committee to testify about being removed from his surveillance post across from the Lorraine Motel two hours before the murder. Redditt said he was grilled by the committee for eight straight hours in a closed executive session. His public testimony the next day “was a set-up.” When he arrived for the hearing, he was ushered into a room and shown a book with his testimony’s questions and answers already set in print.
“So in essence,” said Redditt, “what they were saying was: ‘This is what you’re going to answer to, and this is how you’re going to answer.’ It was all made up–all designed, questions and answers, what to say and what not to say. A total farce.”
Coretta King explained her family’s purpose in pursuing the lawsuit against Jowers: “This is not about money. We want the truth documented in a court of law. My family and I have wanted to see and know the truth, and to heal the nation.”
Dexter King, the plaintiff’s final witness, said the trial was about why his father had been killed: “The same thing is still happening. It can happen to anybody.
It the state doesn’t like what you’re saying, you will be dealt with– not as in China overtly but covertly.”
To the question, “What do we do about this?” he answered, “We are looking to get the truth out. We have never been interested in a criminal prosecution. Nonviolent reconciliation works. If we’re saying we’re willing to forgive, why can’t others?” When pressed by Pepper to name a specific amount of damages for the murder of his father, Dexter King said, “One hundred dollars.”
The jury returned with a verdict after two and one-half hours. Judge James E. Swearengen of Shelby County Circuit Court, a gentle African- American man in his last few days before retirement, read the verdict aloud. The courtroom was crowded with spectators, almost all black.
“In answer to the question, ‘Did Loyd Jowers participate in a conspiracy to do harm to Dr. Martin Luther King?’ your answer is ‘Yes.'” The man on my left leaned forward and whispered softly, “Thank you, Jesus.”
The judge continued: “‘Do you also find that others, including governmental agencies, were parties to this conspiracy as alleged by the defendant?’ Your answer to that one is also ‘Yes.”‘ An even more heartfelt whisper: “Thank you, Jesus!”
David Morphy, the only juror to grant an interview, said later: “We can look back on it and say that we did change history. But that’s not why we did it. It was because there was an overwhelming amount of evidence and just too many odd coincidences.
“Everything from the police department being pulled back, to the death threat on Redditt, to the two black firefighters being pulled off, to the military people going up on top of the fire station, even to them going back to that point and cutting down the trees. Who in their right mind would go and destroy a crime scene like that the morning after? It was just very, very odd.”
I drove the few blocks to the house on Mulberry Street, one block north of the Lorraine Motel (now the National Civil Rights Museum). When I rapped loudly on Olivia Catling’s security door, she was several minutes in coming. She said she’d had the flu. I told her the jury’s verdict, and she smiled. “So I can sleep now. For years I could still hear that shot. After 31 years, my mind is at ease. So I can sleep now, knowing that some kind of peace has been brought to the King family. And that’s the best part about it.”
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James w. Douglass’s books include The Nonviolent Coming of God (Orbis, 2006), which received the Pax Christi Book Award and JFK and the Unspeakable: Why He Died and Why It Matters (Orbis, 2008).
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From: Rachel’s Democracy & Health News #994 ……….[This story printer-friendly]
January 15, 2009
FAREWELL TO THE FIFTH HORSEMAN OF THE APOCALYPSE
[Rachel’s introduction: History will judge him, but so must we. Democracy requires accountability or it isn’t democracy.]
Truly a man who could not possibly be misunderestimated.
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From: Harper’s Magazine …………………………….[This story printer-friendly]
December 1, 2008
JUSTICE AFTER BUSH: PROSECUTING AN OUTLAW ADMINISTRATION
[Rachel’s introduction: Yes, democracy requires accountability or it isn’t democracy. Open criminality is a cancer on democracy. It implicates all who know of the conduct and fail to act. Such complicity presents a practical crisis because a government that is allowed to torture will inevitably transgress other legal limits. But it also presents an existential political crisis. Many democracies have simply collapsed as the people permitted their leaders to abandon the rule of law in the face of alleged external threats.]
By Scott Horton
I. The Crimes
Americans may wish to avoid what is necessary. We may believe that concerns about presidential lawbreaking are naive. That all presidents commit crimes. We may pretend that George W. Bush and his senior officers could not have committed crimes significantly worse than those of their predecessors. We may fear what it would mean to acknowledge such crimes, much less to punish them. But avoiding this task, simply “moving on,” is not possible.
This administration did more than commit crimes. It waged war against the law itself. It transformed the Justice Department into a vehicle for voter suppression, and it also summarily dismissed the U.S. attorneys who attempted to investigate its wrongdoing. It issued wartime contracts to substandard vendors with inside connections, and it also defunded efforts to police their performance. It spied on church groups and political protesters, and it also introduced a sweeping surveillance program that was so clearly illegal that virtually the entire senior echelon of the Justice Department threatened to (but did not in fact) tender their resignations over it. It waged an illegal and disastrous war, and it did so by falsely representing to Congress and to the American public nearly every piece of intelligence it had on Iraq. And through it all, as if to underscore its contempt for any authority but its own, the administration issued more than a hundred carefully crafted “signing statements” that raised pervasive doubt about whether the president would even accede to bills that he himself had signed into law.
No prior administration has been so systematically or so brazenly lawless. Yet it is no simple matter to prosecute a former president or his senior officers. There is no precedent for such a prosecution, and even if there was, the very breadth and audacity of the administration’s activities would make the process so complex as to defy systems of justice far less fragmented than our own. But that only means choices must be made. Indeed, in weighing the enormity of the administration’s transgressions against the realistic prospect of justice, it is possible to determine not only the crime that calls most clearly for prosecution but also the crime that is most likely to be successfully prosecuted. In both cases, that crime is torture.
There can be no doubt that torture is illegal. There is no wartime exception for torture, nor is there an exception for prisoners or “enemy combatants,” nor is there an exception for “enhanced” methods. The authors of the Constitution forbade “cruel and unusual punishment,” the details of that prohibition were made explicit in the Geneva Conventions (“No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever”), and that definition has in turn become subject to U.S. enforcement through the Uniform Code of Military Justice, the U.S. Criminal Code, and several acts of Congress.[1]
Nor can there be any doubt that this administration conspired to commit torture: Waterboarding. Hypothermia. Psychotropic drugs. Sexual humiliation. Secretly transporting prisoners to other countries that use even more brutal techniques. The administration has carefully documented these actions and, in many cases, proudly proclaimed them. The written guidelines for interrogations at Guantanamo Bay, for instance, describe several techniques for degrading and physically debilitating prisoners, including the “forceful removal of detainees’ clothing” and the use of “stress positions.” And in a 2006 radio interview, Dick Cheney said simply that the use of waterboarding to obtain intelligence was a “no-brainer.”[2]
Finally, there can be no doubt that the administration was aware of the potential criminality of these acts. In January 2002, White House lawyers began generating a series of memos outlining the administration’s motivation for torturing. They claimed that “the war against terrorism is a new kind of war” requiring an enhanced “ability to quickly obtain information from captured terrorists” and that “this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners.” The legal term for such contemplation is mens rea, or “guilty mind,” and it is an important consideration in criminal trials. Which is perhaps the reason that John Ashcroft — when he, Dick Che ney, Colin Powell, Condoleezza Rice, Donald Rumsfeld, and George Tenet gathered at the White House in 2002 to formally approve the application of specific torture methods — asked the assembled, “Why are we talking about this in the White House? History will not judge this kindly.”[3]
II. The Consequences of Inaction
The accuracy of Ashcroft’s prediction remains to be determined. The United States does, in fact, have a long history of prosecuting torturers, but the punishments have varied considerably. In 1902, U.S. Army Captain Edwin Glenn confessed to and was court- martialed for using “the water cure” on Filipinos as part of the U.S. prosecution of the Spanish-American War. He was required to pay a fifty-dollar fine. And in 1926, when the Mississippi Supreme Court declared waterboarding to be torture and overturned the conviction of a man who had confessed to another crime under its application, the police who had elicited the confession went entirely unpunished. In other circumstances, though, the consequences have been more significant. In 1983, an east Texas sheriff named James Parker was convicted of waterboarding six men in order to coerce confessions. He was sentenced to ten years in federal prison. And when American prosecutors convicted Japanese officials at the end of World War II of war crimes that included waterboarding, the sentence sought, and obtained in some of the cases, was death. Which is not to say that administration officials will or should face similarly dire sanction. But such consequences are a measure of the gravity of the crime.
Waterboarding is far from the worst that detainees have suffered under U.S. supervision. Its use is especially worthy of note, however, because it is universally understood that 1) the administration authorized waterboarding, and 2) waterboarding is a serious crime.[4]
Open criminality is a cancer on democracy. It implicates all who know of the conduct and fail to act. Such compliance presents a practical crisis, in that a government that is allowed to torture will inevitably transgress other legal limits. But it also presents an existential political crisis. Many democracies have simply collapsed as the people permitted their leaders to abandon the rule of law in the face of alleged external threats. The turn to torture was rapid, for instance, in Argentina at the time of the Dirty War and in Chile after the American-directed coup against Salvador Allende. In both cases, that turn had little to do with a perceived benefit from the use of torture in interrogation. To the contrary, the very criminality of the act had a talismanic significance. It asserted the primacy of the will of the torturer. It made the claim, for all to accept or reject, that the ruler was the law. Such a claim is, of course, intolerable to democracy, which presupposes, as Thomas Paine wrote, that “the law ought to be King; and there ought to be no other.”
Reasserting the rule of law is no simple matter. A new administration may — or may not — bring an end to open torture in the United States, but it will not bring an end to our knowledge and acceptance of what has already taken place. If the people wish to maintain sovereignty, they must also reclaim responsibility for the actions taken in their name. As of yet, they have not. Pursuing the Bush Administration for crimes long known to the public may amount to a kind of hypocrisy, but it is a necessary hypocrisy. The alternative, simply doing nothing, not only ratifies torture; it ratifies the failure of the people to control the actions of their government.[5]
III. Possible Methods of Sanction
Torture is a war crime, and war crimes present an unusual legal challenge. They can be prosecuted domestically, like any other crime. But because they are war crimes, they also are subject to enforcement by all nations, under a well-established principle of universal jurisdiction. Making matters more complex, such crimes can be prosecuted not only in standing courts here or abroad but also in domestic or international ad hoc courts — like those convened for the Nuremberg trials — designed to deal with specific political concerns. Various combinations are suited to different situations:
International Criminal Tribunal
In recent years, nations have joined together on an ad hoc basis, often with U.S. support or under the auspices of the United Nations, to prosecute military and political figures from Cambodia, Rwanda, West Africa, and the former Yugoslavia. Many of these tribunals are still in progress and thus far have achieved mixed results. But they have by and large followed a predictable pattern. Rather than attempting to prosecute all potential war criminals, they have instead focused on those in positions of authority whose action or inaction had broad consequences. And they have shown a particular concern for offenses committed systematically against persons outside of combat, who in many cases have been disarmed and taken prisoner.
The precedent for all of these tribunals was the Nuremberg trials, convened at the end of World War II. Under U.S. leadership, the Allies prosecuted not only leaders of the Nazi Party but also industrialists, doctors, and prison commandants. The Americans and Soviets also wanted to prosecute the people who had created the legal framework for the Nazi regime, but British and French leaders objected. Consequently, the United States, acting on its own, convened a separate Nuremberg tribunal to try lawyers, judges, and legal policymakers. In doing so, it established the principle that policymakers who overrode the mandatory prohibitions of international law against harming prisoners in wartime could be prosecuted as war criminals, no matter how many internal memos they had written to the contrary.
The International Criminal Court, headquartered in the Netherlands, was created in 1998 to provide a permanent version of such a tribunal. The ICC bears many traces of U.S. authorship, and indeed its establishment, in one form or another, was urged by presidents from Thomas Jefferson to Bill Clinton. But American conservatives, opposing what they saw as a limitation on American sovereignty, have blocked the U.S. from joining the 108 other nations that have signed the Court’s foundational treaty. And even the institution’s strongest advocates agree that, although the ICC is suited to prosecuting political leaders in minor states, it was never intended as a check on the great powers. In fact, the ICC’s success depends upon its gaining the support of those great powers.
As things stand it would be legally very difficult and politically impossible for the ICC to indict American policymakers for war crimes, and even more difficult for an ad hoc group of nations to do so. Moreover, any such effort would probably provoke a public-opinion backlash within the United States.
Foreign Courts
Most crimes are subject to sanction on the basis of territoriality — that is, the crime is viewed as having occurred on the soil of one particular state, and that state has the right to enforce its criminal law by prosecuting the crime or not. War crimes, however, are not subject to this territorial limitation. Any nation that has a reasonable relationship to the crime can prosecute the alleged criminal — the state where the offense occurred, any of the warring states, or a state whose nationals were harmed or mistreated. Consequently, many other nations have standing, under international law, to pursue war-crimes prosecutions against U.S. citizens.
The example of Augusto Pinochet shows how such an approach might unfold. In 1998, the onetime dictator of Chile, then eighty-two, was seized in Britain on a Spanish arrest warrant. He was charged with several crimes stemming from his seventeen years in power — including torture, illegal detention, and forced disappearances — and placed under house arrest in a Surrey mansion while diplomats from all three countries debated the next steps. After several months of complex legal proceedings, the British determined that Pinochet was medically unfit to stand trial and returned him to Chile, thus maintaining their claim to jurisdiction without actually pursuing a prosecution. Even this attenuated process would be difficult to replicate with an American political figure, however. Most nations that have a record of prosecuting war crimes are close allies of the United States and would be justifiably concerned about the practicalities of maintaining positive defense relations with the world’s preeminent power. Moreover, the United States — like Chile — almost certainly would not extradite a former official for such purposes.
At present, however, one criminal prosecution is already pending. It arises from the abduction in Italy, under the CIA’s “extraordinary rendition” program, of an Egyptian cleric named Hassan Mustafa Osama Nasr. Twenty-six Americans — including diplomats, intelligence officers, and a military attache — face criminal charges in absentia in the case. For the Americans the abduction was a sensitive national- security operation. But for the Italian criminal-justice authorities it was simply the armed assault and kidnapping of a resident alien. Even if, as widely expected, the case produces convictions, the American operatives will not be extradited to Italy. They will, however, have difficulties traveling outside the United States.
Even this mild form of sanction, however, fails to address the domestic political problem. True justice cannot be compelled from without. If the United States wishes to demonstrate to the world, and to itself, that its abdication of human-rights principles was an anomaly, it will have to do so under its own auspices.
Domestic Courts
Most violations of the laws of war are punished through a military court system. Under the Uniform Code of Military Justice, which provides the tools for enforcement of the laws of war in the United States, civilians as well as uniformed service members may be prosecuted, though such prosecutions are rare and raise significant constitutional issues. Moreover, such systems are fine for punishing errant soldiers, but they seldom function properly when the culpable person is far up the chain of command. This is largely because military justice is not concerned exclusively with justice; it is also concerned with upholding command authority. There is little likelihood, therefore, that policymakers would be prosecuted before a court-martial.
Torture is forbidden by federal law as well.[6] Could a federal prosecutor take it upon himself to enforce that law? Alberto Gonzales expressed concern in a 2002 memo that a prosecutor might display sufficient independence to do just that. But thus far none has. The scandal surrounding the dismissal of nine U.S. attorneys in 2006 helps explain why: the Bush Administration has maintained an unprecedentedly tight rein on its prosecutors, acting harshly when they depart from the prescribed political path. Indeed, so many high-level figures at Justice were involved in creating the legal mechanism for torture that the Justice Department has effectively disqualified itself as an investigative vehicle, even under a new administration.
Another major obstacle to domestic prosecution will be pardons. The exercise of a presidential pardon to protect war criminals would violate international law and would not be respected outside the territory of the United States. Under the Constitution, however, Bush’s pardon power is nonetheless nearly absolute. Those advocating a pardon hope that it would put an end to questions about criminal conduct, but historical experience suggests that a pardon might have just the opposite effect. It would implicitly concede that serious crimes were in fact committed; the public would not necessarily reject a pardon, but it might well insist on full disclosure of what was done; and the president’s political party likely would pay a significant price for all of this, as Republicans experienced in the election following Gerald Ford’s decision to pardon Richard Nixon.
Pardons would have another unintended effect. Under well-established notions of international law, the fact that a state attempts to immunize officeholders from prosecution (such as by the issuance of a presidential pardon) would boomerang by actually conferring on other states the jurisdiction to prosecute.
Commission of Inquiry
In recent decades, the commission of inquiry, often in the form of a “truth and reconciliation commission,” has established itself as the preferred means of approaching politically sensitive issues such as war crimes while avoiding the destabilization that might result from direct prosecutions. In Argentina, Chile, East Timor, Peru, and South Africa, newly elected leaders feared that the criminal prosecution of their predecessors would wreck the fragile political consensus that had been used to establish both peace and a legitimate democracy. A commission of inquiry allowed these countries to move toward accountability in a slow but deliberate way. In some cases, a bargain was struck under which the truth about past misconduct was divulged in exchange for a pardon, on the premise that establishing a record of historical truth was more important to democracy than punishing individual malefactors. In other cases, however, the commission’s fact-finding process gradually built a public consensus that prosecutorial action was needed. In Peru and Chile, prosecutions occurred even after comprehensive pardons had been granted, as the courts relied on international-law concepts to disregard those pardons.
These commissions have not always performed as their authors intended them to. For instance, it was anticipated that the South African commission would widely disseminate pardons in exchange for more detailed accounts of homicides and abuse under apartheid. In the end, however, very few such pardons were even sought, since many witnesses simply counted on a sentiment of general amnesty to see them through. Such commissions also shift the balance of historical memory, which usually favors those who hold power, by ensuring that the accounts of victims are carefully recorded. Often this occurs by taking the victim’s testimony in a public setting. In Argentina, Chile, and South Africa, the commission process served one function especially well: the public was educated about the wretched practices of the prior regime, and demands for a clear separation from these practices — often including the rehabilitation of victims and the punishment of perpetrators — changed the landscape of public opinion.
IV. A Two-part Solution
Given the political situation in the United States, it seems clear that the last option is the best. Although “truth and reconciliation” may strike many people as somehow too exotic a process for the United States, investigative commissions in fact have a long history here that includes the Warren Commission, which was established in 1963 to investigate the assassination of John Kennedy, and the Kerner Commission, which was established in 1967 to examine the causes of race riots in the United States. Such investigations have had a mixed record of success, but they are the best means available to the U.S. political system for investigating issues that raise broad public concern but cannot be satisfactorily delved into by such established bodies as the FBI or a congressional oversight committee.
Investigative commissions can provide truth. They can establish an important record. They can reaffirm important taboos. But they cannot provide justice. For that they are simply a first step. The second step, which I will discuss only briefly, is a formal prosecution, most likely by an executive- appointed special prosecutor. In this model — call it “commission plus special prosecutor” — the commission would find the facts, weigh them, and, if the facts warrant, make a formal recommendation for the appointment of a prosecutor, identifying the matters that necessitate further investigation. Even if the commission were to determine that no prosecutable crimes had occurred — and, given the legal complexities of such an undertaking, such a finding is possible — it would perform the absolutely necessary function of educating the public. If, on the other hand, the commission were to determine that criminal investigation was appropriate, it already would have created essential public support for such action.
From what source would the commission draw its authority? The most obvious place would be the executive branch itself. The next president could appoint a commission of inquiry with the stroke of a pen, and such a commission would have many strengths. It could be created quickly; it would answer to one master; and, since it would be created with the authority of the president, it could demand the cooperation of government actors and access to classified documents. Gerald Ford, for instance, created the Rockefeller Commission in 1975 to examine allegations of domestic spying, and it put on record a series of tawdry CIA operations and helped to impose several congressional restraints on domestic action by the agency. The problem with presidential commissions is that they can easily be accused of covering up for previous administration[7] or, conversely, of seeking “victor’s justice.”[8]
The alternative is a hybrid — an executive-legislative commission that would be created by an act of Congress but would draw also on the authority of the president. This alternative typically involves an elaborate process for the appointment of commissioners by both the White House and the congressional leadership. The National Commission on Terrorist Attacks Upon the United States, usually called the 9/11 Commission, is the most recent example of this approach. The hybrid commission can be challenged on constitutional grounds as an intrusion on executive prerogative, so its success still requires the president’s support and cooperation.[9]
In general, the presidential commission seems a smoother, less legally problematic model, whereas the hybrid commission is cumbersome but more likely to command broad public support and confidence from the outset.
In either model, the commissioners themselves must have the right measure of integrity and commitment. Are they willing to pursue their questions to definitive answers, no matter who is embarrassed or injured by the outcome? Do they place the interests of those who appointed them ahead of their obligation to investigate the facts? A well-constituted commission is neither partisan nor relenting. It publishes the truth and leaves the prosecution to later actors.
V. Implementation
Many commissions failed to achieve positive ends because they were poorly designed. History suggests that certain structural and legal characteristics, combined with a careful definition of scope, can lead to a successful outcome.
Composition
The first action of any administration whose conduct comes under scrutiny is to claim that the process is politically motivated. The first step in addressing those claims is to separate the process of initial investigation from the process of prosecution, as discussed above.[10]
But the commission itself also can be structured in such a way as to mitigate partisan concerns. This will require real wisdom, however. Simple “balancing” won’t do the job.
The 9/11 Commission, for instance, was crafted as a “bipartisan” institution, with co-equal Democratic and Republican chairs, on the premise that each would counteract the partisan proclivities of the other. In the end, though, this balancing served only to provide political ammunition to both parties. Any future war-crimes commission should therefore avoid openly partisan commissioners and staff.
The political parties cannot be ignored — in order to command appropriate levels of support within the Washington political establishment, the commission will need party- affiliated co-chairs who none-theless are viewed as being consensus-builders — but the balance of the commission should be persons of established integrity whose professional backgrounds involve the skills essential to studying, understanding, and dealing critically with the issues arising from the practice of torture. A record of partisan political engagement should weigh against a candidate’s selection. The experience pool should include prosecutors, intelligence professionals, retired military leaders, religious leaders and ethicists, human-rights advocates, health-care professionals, and diplomats.
Someone will have to choose those people. The 9/11 Commission legislation gave that responsibility to the secretary of defense, the speaker of the House of Representatives, the Senate majority leader, and the minority leaders in both houses of Congress. It probably will be difficult to avoid a similar delegation of authority. But to ensure that the persons selected are not simply partisan political surrogates, a further layer might be incorporated. A qualifications commission could be appointed first, consisting of a dozen members who would have the sole task of preparing a list of pre- approved candidates. The appointees would then have to be drawn from this list. This approach was taken by South Africa in its Truth and Reconciliation Commission, and it resulted in a final body that commanded broad public respect. Indeed, observers of the South African process have often cited the two-tiered appointments process as a key to the commission’s overall success.
Powers of the Commission
The bulk of the commission’s work would be carried out not by politicians but by a professional staff of lawyers, investigators, subject experts, and various assistants. The authorizing legislation should assume a staff roughly equal to that of the 9/11 Commission, which totaled nearly eighty. Preference would be given to persons who had previously obtained the necessary security classifications, but the new commission should also be given the power to quickly address security- classification issues. Staff members should be authorized not only to hold and deal with the most sensitive classified documents in a dedicated, secured document room but also to declassify or require the declassification of documents, redacted as appropriate, and to publish the results.
It will be essential for the commission to exercise subpoena power; that is, the ability to force witnesses to appear and testify before it with the possibility of civil or criminal penalties if they fail to appear or give misleading or false testimony. Without this power it would be very difficult for the commission to assemble the information it needs to issue its report. To invest the commission with these powers would be a somewhat complex legal matter, but not an insurmountable one.[11]
Scope of the Investigation
The commission’s mandate requires definition and focus. It must also, however, provide the commission with reasonable room to pursue leads that arise in the course of its investigation. The commission’s charge, therefore, should be to examine the formation and implementation of policy concerning the treatment of detainees in operations (including intelligence operations) undertaken in connection with the Authorization for Use of Military Force Against Terrorists. Tying the subject matter to a specific piece of legislation will keep the investigation focused on a single controlling authority even as it allows investigators to explore all of the operations in which that authority was used, whether in Iraq or Afghanistan, nearby staging areas, or other sites around the world, including Guantanamo and “black sites” yet to be identified.[12]
Such a mandate would also allow the commission to investigate a variety of non-administration actors, including Congress itself. Republicans have frequently argued that many powerful Democrats, including House Majority Leader Nancy Pelosi and Intelligence Committee Chairman Jay Rockefeller, were fully briefed on the administration’s torture policy and failed to raise objections. Did Congress acquiesce to the administration’s choices? Did it provide legal authority? Republicans may be questioning Democratic involvement simply in order to discourage congressional inquiries. But such questions nonetheless are completely legitimate.
Findings
The commission should conduct its work in public to the fullest possible extent. Open hearings will educate the people about the issues under inquiry and also help to build a consensus in resolving those issues. Putting the testimony of victims and witnesses on the record will be a crucial element of that process. It will be a first step toward restoring the dignity and humanity of the victims, and it will also serve to reveal, authenticate, and preserve vital evidence that may be used in later legal proceedings.
Documents, particularly the many classified documents that the administration continues to withhold from Congress and the public, will be at the core of the commission’s work. The president and his advisers, like members of many regimes engaged in legally questionable actions, have placed great emphasis on creating a legal groundwork for their actions. The commissioners would examine these memos, briefs, and other records with the aid of witnesses, but it is essential that the documents themselves also be made permanently available to journalists, scholars, and lawyers. A full fact-finding process is likely to take decades. Public scrutiny can lead to the identification of important details that even the most talented investigators may miss on the first and second pass.
The commission would also be required to prepare an in-depth report. The report should provide a comprehensive narrative, setting out in detail how U.S. torture policy came to be formed and identifying the key actors and the decisions they made.
Recommendations
The report’s function would be more than historical, of course. It must be forward-looking. Should laws be changed, regulations rewritten, new procedures adopted?[13]
More important, the commission must look at the conduct of official actors. Were laws and policies faithfully applied or were they broken? If laws were broken, was there criminal conduct that merits study by law- enforcement professionals? This analysis would establish the background for the three most important potential results of a commission: the formal recommendation to pardon, the formal recommendation to pursue prosecution, and the formal recommendation to make reparations.
On the matter of reparations, the commission could do a great deal of good. The United States has already committed itself, under existing international agreements, to making reparations to victims of torture. Thus far, though, government action on this front has consisted primarily of efforts to foreclose recovery. Moreover, the U.S. litigation system is extremely costly and may not be an efficient means of providing redress in situations where victims are non- citizens and located outside of the United States. A commission might recommend such alternative approaches as creating a claims-settlement commission or granting special authority for ex gratia payments under which the United States could offer compensation without being seen as acknowledging wrongdoing. In cases in which a victim is convicted of criminal wrongdoing, the fact that he suffered torture may be considered in connection with sentencing, and some guidelines for this should be furnished.
The recommendations to prosecute or pardon would not be binding in any formal sense. Only the president has the constitutional authority to pardon at the federal level, and any indictment ultimately would have to find its way to prosecutors and the courts. The recommendations, then, would be persuasive only to the extent that the commissioners successfully made the case for them. (Many of the 9/11 Commission recommendations, for instance, have yet to be enacted.) Still, the commission would certainly be staffed with some career prosecutors. It should be in a solid position to assess whether a special prosecutor should be appointed. And that prosecutor would have a great deal of evidence and political momentum at his or her disposal. If the process is pursued faithfully, the recommendations should have considerable political influence.
The hallmark of the Bush Administration has been its tendency to rush to judgment, certain of propositions that turned out to be dead wrong. In addressing its errors, such failings cannot be repeated. The commission should proceed with care and take the time it needs to develop a full record. The process is likely to consume at least two years and possibly much longer. This is not necessarily a liability. Right now, the administration looms large and justice seems distant. That perspective will change significantly with the passage of time.
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[1] In addition to being illegal, torture is profoundly un-American. The central premise of the American experiment is the belief, informed by Enlightenment principles, that the dignity and worth of the individual is at least as important as that of the state. This belief weighed heavily on the minds of the Founders. The new American military was to be a force of yeoman soldiers, citizens in peacetime who were to be regarded as no less than citizens in wartime. Enemy soldiers likewise were to be treated with respect. George Washington, in the winter of 1776, sent a written order to officers overseeing prisoners: “Treat them with humanity.” And in 1863, at another time of crisis, Abraham Lincoln included the prohibition of torture in the first American codification of the laws of war, which he also issued as a direct order to his field commanders. By way of such American leadership, the prohibition on torture was gradually absorbed into international law.
[2] Cheney at the time declined to refer to this practice as torture, preferring instead to describe it as “robust interrogation,” and that reluctance has been echoed in the press. I myself was twice warned by PBS producers, in advance of appearances on The Newshour with Jim Lehrer, that I could use the word “torture” in the abstract but that I was to refrain from applying it to the administration’s policies. And after an interview with CNN in which I spoke of the administration’s torture policy, I was told by the producer, “That’s okay for CNN International, but we can’t use it on the domestic feed.” More recently, however, the consensus appears to be that “torture” is a perfectly adequate description of administration policy. In the vice- presidential debates, Joe Biden said that Cheney has “done more harm than any other single elected official in memory in terms of shredding the Constitution. You know — condoning torture.” In the first presidential debate, John McCain said we must ensure “that we have people who are trained interrogators so that we don’t ever torture a prisoner ever again.” And Barack Obama, though vague, seemed to accept this formulation. “I give Senator McCain great credit on the torture issue,” he said, “for having identified that as something that undermines our long-term security.”
[3] In an interview with Jane Mayer of The New Yorker, a former senior CIA official with knowledge of the administration’s torture program summarized its attitude more bluntly: “Laws? Like who the fuck cares?”
[4] This last point is not even slightly controversial. Richard Armitage, a Republican former Navy officer who served as deputy secretary of state from 2001 to 2005, is likely the highest-ranking administration official to personally have experienced this form of torture. In the late Sixties, he was waterboarded as part of a training program — Survival, Evasion, Resistance, and Escape, or SERE — designed to prepare military personnel to resist enemy interrogators. His conclusion was straightforward. “Of course waterboarding is torture,” he told the BBC in 2007. “I can’t believe we’re even debating it.” Military lawyers agree. In a 2007 letter to Senate Judiciary Committee Chairman Patrick Leahy, four retired judge advocates general hammered the point again and again. “Waterboarding is inhumane, it is torture, and it is illegal,” they wrote, adding that “it is not, and never has been, a complex issue, and even to suggest otherwise does a terrible disservice to this nation.” Even Republican Senator Lindsey Graham, himself a onetime reserve military judge and sometime supporter of administration detainee policy, admits that waterboarding is illegal. “I don’t think you have to have a lot of knowledge about the law,” he said in 2007, “to understand this technique violates Geneva Convention Common Article Three, the War Crimes statutes, and many other statutes that are in place.”
[5] It is not without justification that Bush was able to claim in 2005, “We had an accountability moment, and that’s called the 2004 elections.” Such taunts recall the (likely apocryphal) moment when William Tweed, the corrupt head of New York’s Tammany Hall, was confronted with indisputable evidence of graft. “Well,” he said, “what are you going to do about it?”
[6] 18 U.S.C. paragraph 2340 makes it a crime for any “person acting under the color of law” to “inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.” The penalty for this crime — as Bush’s Office of Legal Counsel carefully noted in a 2003 memo on the subject — is up to twenty years in federal prison.
[7] Or even their own administrations: George W. Bush formed the Robb- Silberman Commission in 2004 to look into why his administration’s conclusions about Iraqi WMDs were so completely wrong, but the commission somehow failed to discover the pressure that the administration itself had brought to bear on intelligence analysts to cook their conclusions — in part, perhaps, because Dick Cheney was personally responsible for putting part of the commission together, starting with the appointment of his friend Laurence Silberman as co- chair. The Tower Commission, created by Ronald Reagan to look into the Iran-Contra scandal, was a similarly lukewarm exercise in damage control, in which the authors ultimately concluded that all that was really needed to avoid future such scandals was a modest restructuring of the role of the national security adviser.
[8] This may explain why, when Will Bunch of the Philadelphia Daily News asked Barack Obama in August “whether an Obama administration would seek to prosecute officials of a former Bush Administration,” the senator’s response was guarded. “I can’t prejudge that, because we don’t have access to all the material right now. I think that you are right: if crimes have been committed, they should be investigated. You’re also right that I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt, because I think we’ve got too many problems we’ve got to solve.” Obama adviser Cass Sunstein has similarly warned that pursuing prosecutions of Bush Administration officials would generate a “cycle” of partisan recriminations.
[9] The leaders of the 9/11 Commission were, in fact, pointed in their criticism of the false or misleading statements that were provided by some agencies, particularly the Department of Defense and the Federal Aviation Administration. In their book, Without Precedent, the commission’s co- chairs, Thomas Kean and Lee Hamilton, write that they openly considered recommending prosecution of some government officials for criminal obstruction, a threat that ultimately secured some compliance. They remained skeptical, however, about how much cooperation they ultimately received.
[10] Newsweek columnist Stuart Taylor, long a defender of the administration’s detainee policies, wrote in July that a war-crimes trial would “touch off years of partisan warfare. The lesson for occupants of the toughest government jobs — if the next administration could find people willing to fill them — would be that saving innocent lives is less important than covering their posteriors.” Taylor has, however, embraced the idea of a truth commission.
[11] The White House has forbidden several of its former employees — including former chief of staff Joshua Bolton, former counselor Harriet Miers, and former senior adviser Karl Rove — from testifying before congressional oversight panels. When a court ordered them to appear, the administration sought to appeal the ruling in a transparent, and thus far successful, effort to run out the clock. The administration has also withheld documents, citing exotic theories of privilege. In congressional hearings, White House attorney John Yoo simply refused to answer questions, on the grounds that he had been instructed by the Justice Department not to answer, even though many of the questions concerned matters that Yoo had discussed in two books and dozens of other public forums. The difference between Yoo’s public discussion and his testimony was, of course, that the latter was under oath.
[12] The Authorization for Use of Military Force Against Terrorists, passed into law shortly after the attacks of September 11, 2001, is the statute that has provided general authority for the conduct of military operations in what the administration has came to call the “Global War on Terror.” Since the president’s repeated assumptions of extralegal powers was predicated in Justice Department memoranda on his commander-in-chief authority, that military link should help define the time, the space, and the nature of the conduct that requires investigation.
[13] One highly controversial area of inquiry will be the question of efficacy. The major argument for torture now is simple: It works, and therefore any state that wants to protect itself would be foolish to dispense with it. But does torture “work”? Many human-rights activists have strongly discouraged even asking the question. Doing so, they argue, transforms a moral argument — a basic respect for the dignity of all humans forbids torture — into a utilitarian argument. Such a consideration of ends versus means opens the door to all kinds of “what if” scenarios that would eventually lead to wider social acceptance of torture. (One way to more easily assess that concern would be to substitute another taboo act — say, child rape — for torture. Would it be acceptable to rape a child if there were a ticking time bomb under the Empire State Building and you sincerely believed that raping that child was the only way to find it?)
There is much to be said for these concerns. And yet those who are against torture also have the better end of the utilitarian argument. Under centuries of the lex talionis, or law of retribution, if a nation inflicted indignities on its captives, others were free to do the same to its soldiers. One of the clearest consequences of the Bush torture policies has been to put American service personnel at risk. Nor is there any evidence that torture is an effective means to the end of national security. Bush has argued that “the program” he helped establish did in fact secure information that “saved American lives.” But others who have looked into the incidents that Bush cites say that, in fact, what useful intelligence was gathered in these interrogations was gathered before the interrogators resorted to torture. Indeed, the techniques utilized at Guantanamo and Abu Ghraib were developed not for the purpose of gathering intelligence but rather to elicit false confessions to be used for political purposes.
This invites a number of questions: Was the intelligence collected inherently more or less reliable than intelligence gathered using other techniques? Was it necessary to turn to highly coercive tactics to secure this information? What other consequences for national security flow from the use of the new techniques in terms, for instance, of loss of intelligence-gathering channels, damage to reputation, recruitment gains for enemies, and compromised cooperation from allies? These questions, although they may suggest, perniciously, that “reasonable minds differ” on torture, nonetheless are worth asking for one reason above all. The answers, coming from administration officials, would also act as a kind of confession. Their self-justification should be part of the record.
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From: Environmental Health News ………………………[This story printer-friendly]
January 9, 2009
AUTISM EPIDEMIC NOT CAUSED BY SHIFTS IN DIAGNOSES
[Rachel’s introduction: Across the nation, the numbers of autistic children have increased dramatically over the past 15 years. “It’s time to start looking for the environmental culprits responsible for the remarkable increase in the rate of autism…,” says a leading scientist.]
By Marla Cone, Editor in Chief
California’s sevenfold increase in autism cannot be explained by changes in doctors’ diagnoses and most likely is due to environmental exposures, University of California scientists reported Thursday [Jan. 8, 2009].
The scientists who authored the new study advocate a nationwide shift in autism research to focus on potential factors in the environment that babies and fetuses are exposed to, including pesticides, viruses and chemicals in household products.
“It’s time to start looking for the environmental culprits responsible for the remarkable increase in the rate of autism in California,” said Irva Hertz-Picciotto, an epidemiology professor at University of California, Davis who led the study.
Throughout the nation, the numbers of autistic children have increased dramatically over the past 15 years. Autistic children have problems communicating and interacting socially; the symptoms usually are evident by the time the child is a toddler.
More than 3,000 new cases of autism were reported in California in 2006, compared with 205 in 1990. In 1990, 6.2 of every 10,000 children born in the state were diagnosed with autism by the age of five, compared with 42.5 in 10,000 born in 2001, according to the study, published in the journal Epidemiology. The numbers have continued to rise since then.
To nail down the causes, scientists must unravel a mystery: What in the environment has changed since the early 1990s that could account for such an enormous rise in the brain disorder?
For years, many medical officials have suspected that the trend is artificial — due to changes in diagnoses or migration patterns rather than a real rise in the disorder.
But the new study concludes that those factors cannot explain most of the increase in autism.
Hertz-Picciotto and Lora Delwiche of the UC Davis Department of Public Health Sciences analyzed 17 years of state data that tracks developmental disabilities, and used birth records and Census Bureau data to calculate the rate of autism and age of diagnosis.
The results: Migration to the state had no effect. And changes in how and when doctors diagnose the disorder and when state officials report it can explain less than half of the increase.
Dr. Bernard Weiss, a professor of environmental medicine and pediatrics at the University of Rochester Medical Center who was not involved in the new research, said the autism rate reported in the study “seems astonishing.” He agreed that environmental causes should be getting more attention. “It’s time to start looking for the environmental culprits responsible for the remarkable increase in the rate of autism in California.” …Irva Hertz-Picciotto
The California researchers concluded that doctors are diagnosing autism at a younger age because of increased awareness. But that change is responsible for only about a 24% increase in children reported to be autistic by the age of five, according to the report.
“A shift toward younger age at diagnosis was clear but not huge,” the report says.
Also, a shift in doctors diagnosing milder cases explains another 56% increase. And changes in state reporting of the disorder could account for around a 120% increase.
Combined, Hertz-Picciotto said those factors “don’t get us close” to the 600% to 700% increase in diagnosed cases.
That means the rest is unexplained and likely caused by something that pregnant women or infants are exposed to, or a combination of genetic and environmental factors.
“There’s genetics and there’s environment. And genetics don’t change in such short periods of time,” Hertz-Picciotto, a researcher at UC Davis’ M.I.N.D. Institute, a leading autism research facility, said in an interview Thursday.
Many researchers have theorized that a pregnant woman’s exposure to chemical pollutants, particularly metals and pesticides, could be altering a developing baby’s brain structure, triggering autism.
Many parent groups believe that childhood vaccines are responsible because they contained thimerosal, a mercury compound used as a preservative. But thimerosal was removed from most vaccines in 1999, and autism rates are still rising.
Dozens of chemicals in the environment are neurodevelopmental toxins, which means they alter how the brain grows. Mercury, polychlorinated biphenyls, lead, brominated flame retardants and pesticides are examples.
While exposure to some — such as PCBs — has declined in recent decades, others — including flame retardants used in furniture and electronics, and pyrethroid insecticides — have increased.
Mothers of autistic children were twice as likely to use pet flea shampoos, which contain organophosphates or pyrethroids, according to one study that has not yet been published. Another new study has found a link between autism and phthalates, which are compounds used in vinyl and cosmetics. Other household products such as antibacterial soaps also could have ingredients that harm the brain by changing immune systems, Hertz-Picciotto said.
In addition, fetuses and infants might be exposed to a fairly new infectious microbe, such as a virus or bacterium, that could be altering the immune system or brain structure. In the 1970s, autism rates increased due to the rubella virus.
The culprits, Hertz-Picciotto said, could be “in the microbial world and in the chemical world.”
“I don’t think there’s going to be one smoking gun in this autism problem,” she said. “It’s such a big world out there and we know so little at this point.”
But she added, scientists expect to develop “quite a few leads in a year or so.”
The UC Davis researchers have been studying autistic children’s exposure to flame retardants and pesticides to see if there is a connection. The results have not yet been published.
“If we’re going to stop the rise in autism in California, we need to keep these studies going and expand them to the extent possible,” Hertz-Picciotto said.
Funding for studying genetic causes of autism is 10 to 20 times higher than funding for environmental causes, she said. “It’s very off- balance,” she said.
Weiss agreed, saying that “excessive emphasis has been placed on genetics as a cause.”
“The advances in molecular genetics have tended to obscure the principle that genes are always acting in and on a particular environment. This article, I think, will restore some balance to our thinking,” he said.
Some issues related to whether the increase is merely a reporting artifact remain unresolved. There could be other, unknown issues involving diagnosis and reporting, scientists say.
The surge in autism is similar to the rise in childhood asthma, which has reached epidemic proportions for unexplained reasons. Medical officials originally thought that, too, might be due to increased reporting of the disease, but now they acknowledge that many more children are asthmatic than in the past. Experts suspect that environmental pollutants or immune changes could be responsible.
Autism has serious effects, not just on an individual child’s health but on education, health care and the economy.
“Autism incidence in California shows no sign yet of plateauing,” Hertz-Picciotto and Delwiche said in their study.
Copyright 2003 Environmental Health Sciences
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From: The Star Phoenix (Saskatoon, Canada) ……………[This story printer-friendly]
January 10, 2009
WE’RE NOT DOOMED, BUT WE’RE IN DANGER
[Rachel’s introduction: The first and most important impact of global warming will be an acute and permanent crisis of food supply. In that situation, wars become probable. “Countries that are unable to feed themselves are unlikely to be reasonable about it…. There is a probability of wars, even nuclear wars, if the temperature rises more than two to three degrees Celsius [4 to 5 degees Fahrenheit].”]
By Sheila Pratt, Canwest News Service
[Editor’s note: The Worldwatch Institute recently reached the same conclusion as Gwynne Dyer about the need to decarbonize the global economy totally by 2050.]
The Bush era of climate-change denial will end the moment Barack Obama steps into the White House, predicts author and international affairs analyst Gwynne Dyer.
President Obama will find several major reports on global warming waiting for him from the U.S. defence and state departments, when he sits down at his desk Jan. 20, says Dyer — and they contain some ominous scenarios about the impact of global warming and how much time is left to take meaningful action.
“The denial industry is in full retreat,” says Dyer, whose latest book is Climate Wars.
“We’ll be into an international carbon trading system in four to eight years, and possibly a U.S. ban on non-conventional oil.”
However, even with the U.S. finally taking climate change seriously, the world cannot possibly meet the deadlines outlined in the 2007 report of the Intergovernmental Panel on Climate Change to avoid the crucial tipping point that could lead to runaway global warming.
That’s one of several grim conclusions in Dyer’s book that will give the reader a few sleepless nights with its visions of mass migrations, famine, floods and the possible collapse of international institutions like the United Nations under severe circumstances.
But Dyer also offers a way out, sort of, so it’s important to stick to the end of the story.
“We are not doomed; we are just in danger,” says Dyer, who still has faith the world can find a way to maintain a high-energy, high-tech civilization.
Dyer, well known for his books on war, turned his mind to climate change when he realized defence departments in Britain and other countries are already making plans to cope with the negative fallout of a warmer planet.
The first and most important impact will be “an acute and permanent crisis of food supply,” with any significant warming beyond the current level, says Dyer.
In that situation, wars become probable. “Countries that are unable to feed themselves are unlikely to be reasonable about it.
“There is a probability of wars, even nuclear wars, if the temperature rises more than two to three degrees Celsius,” writes Dyer, with India and Pakistan in mind.
“Once that happens, all hope of international co-operation to curb emissions and stop the warming goes out the window.”
Climate warming is already measurable, says Dyer.
“I was in India 18 months ago and a new study showed they are already two degrees hotter than 1990,” he says. With every two degrees more of warming, food production will drop by 25 per cent, according to the study.
Dyer takes a close look at an American report, The Age of Consequences: Foreign Policy and National Security Implications of Global Climate Change produced in November 2007 by two Washington- based think-tanks.
Even its “non-alarmist” scenario projects serious problems — coastal land in Southeast Asia will be lost, failing crops in Central and South America, prolonged drought in the Southwest U.S. and the Mediterranean countries of Europe.
His research led Dyer to conclude the warming trend is moving faster than the predictions of scientists on the Intergovernmental Panel on Climate Change.
“The kinds of problems we anticipated for 2040 will arrive in 2020, not in our children or grandchildren’s lifetime, but our lifetime,” says Dyer.
Dyer says the unavoidable conclusion is that the world has to wean itself off the carbon economy in the next few decades and cut emissions by 80 per cent.
“Most of the changeover has to come in the next twenty years and we need to have completely decarbonized our economies by 2050.”
Copyright The StarPhoenix (Saskatoon) 2009
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Rachel’s Democracy & Health News highlights the connections between issues that are often considered separately or not at all.
The natural world is deteriorating and human health is declining because those who make the important decisions aren’t the ones who bear the brunt. Our purpose is to connect the dots between human health, the destruction of nature, the decline of community, the rise of economic insecurity and inequalities, growing stress among workers and families, and the crippling legacies of patriarchy, intolerance, and racial injustice that allow us to be divided and therefore ruled by the few.
In a democracy, there are no more fundamental questions than, “Who gets to decide?” And, “How DO the few control the many, and what might be done about it?”
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