Our Imperial Justice

American justice gets shipped overseas, and into a black hole of lost liberties.

| Mon Dec. 22, 2003 4:00 AM EST

Timothy Noah of Slate writes: "[Vice-president Dick] Cheney violated the Bush administration's policy of never saying the e-word in a Christmas card he and his wife sent out to various supporters and important Washingtonians... Along with their best wishes for this holiday season, the Cheneys included the following quotation from Benjamin Franklin: 'And if a sparrow cannot fall to the ground without His notice, is it probable that an empire can rise without His aid?'"

The imperial (vice-)presidency has new meaning -- and not just because Dick and Lynne implicitly plugged God's Empire, the United States of Everything, in a Christmas card. Last Thursday, The New York Times had a fascinating, if chilling, front-page rundown on the underside of Cheney's imperial dream, the sort of thing for which his New Year's card might be inscribed, "Happy New Year, Welcome to Hell."

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James Risen and Thom Shanker began their report, headlined 'Hussein Enters Post-9/11 Web of U.S. Prisons', this way:

"Saddam Hussein is now prisoner No. 1 in what has developed into a global detention system run by the Pentagon and the Central Intelligence Agency, according to government officials. It is a secretive universe, they said, made up of large and small facilities throughout the world that have sprouted up to handle the hundreds of suspected terrorists of Al Qaeda, Taliban warlords and former officials of the Iraqi government..."

This secret world extends from Bagram Air Force Base, Afghanistan, to Baghdad International Airport to our Guantanamo naval base in Cuba (and even, though they don't mention it, to the Navy's aircraft carriers off the coast of anywhere). As it turns out, though, we don't have a single semi-secret international prison system but two overlapping ones -- and although Risen and Shanker speak of its inmates as "arrested," such arrests lead not to courts in any country on earth, but directly to a universe of "interrogators." The arrestees to a man are, at present, beyond the oversight of any court on earth. The larger of these "detention systems" -- as the piece calls them -- is run by the Pentagon; the smaller by the CIA and the prisons of that one, evidently holding tiny groups of top al Qaeda leaders, are "in undisclosed locations in friendly countries in" - as the reporters politely put it - "the developing world." The only developing country identified by name is Thailand.

The piece then focuses on the -- again, politely put -- "full range of interrogation techniques," which have been used on al Qaeda leaders but "might not" be used on Saddam because "the agency's handling of him may eventually come under scrutiny." Prisoners in the CIA system, for instance, are held in "total isolation," with guards sometimes dressed in outfits that suggest the incarcerees are back in their own Arab countries which are "feared for the use of torture."

It's interesting, by the way, that the word torture is used only twice in the piece -- first in the context of Arab practices, and then in a passage in which the Pentagon and CIA are reported to deny using it (though there is no indication as to who has made such charges). Yet the techniques Risen and Shanker describe or allude to would certainly qualify as torture, were they not being used by Americans. (Believe me, if this report were on any other country, the language and tone would have been quite different.)

The most striking passage in the piece goes as follows:

"Certain techniques that interrogators may wish to apply to elicit information from important detainees require 'a higher level of scrutiny' by officials before they can be used, the Pentagon official said. One military officer said the use of sleep deprivation, for example, must be approved by senior Pentagon officials."

Imagine that. The use of mental torture -- sleep deprivation can't qualify as anything but -- has to be, and evidently is being ordered from on high. Our top Pentagon officials are thus implicated in ordering acts that would have been right at home in Argentinean prisons under the generals in the 1970s or for that matter in the NKVD's Soviet prisons. And this, mind you, is a global system beyond the reach of any law and beholden, in the end, to only one man: George W. Bush. Now that's an imperial dream for you.

In this context, it's ridiculous to talk of the "Geneva conventions" or any other codes or agreements, no less "international law." And the President made that jokingly clear the other day when, on camera, he responded in mock horror to a suggestion by the German chancellor that the Pentagon's contract bidding for the reconstruction of Iraq might violate international law: "International Law?" he said, laughingly. "I better call my lawyer." For the Bush administration, the only codes, conventions, or agreements that matter are those laid out by our President and they invariably prove flexible enough to handle any contingency.

For readers of these dispatches over the last few months, little of what's in Risen and Shanker's report will come as a surprise. I've been commenting on America's developing global mini-gulag -- what I've called its international black hole of injustice or, in relation to Guantanamo, its Bermuda Triangle of injustice -- for some time now. This is, however, the first time I've seen our secret penal system put together and headlined, however politely, even euphemistically, in any American paper of record, no less our major paper of record. It's a piece -- both for its information and for its limits -- that's well worth considering beginning to end.

Domestically, American justice first began to visibly morph into imperial justice just in the wake of the September 11 attacks with the passage of the Patriot Act by a terrified and supine Congress and with the mass detention of Arabs immigrants and Arab-Americans. Internationally, the key event -- along with the spur of the moment employment of all sorts of coercive measures of captivity and interrogation during the Afghan campaign and the crude incarceration centers set up on our new bases in Afghanistan -- was the infernally clever use we made of our old colonial base at Guantanamo, Cuba to house those swept up in our Afghan War. Not on American soil and just beyond the reach of our courts, Guantanamo remained within our treaty rights. The Devil's Island of a prison constructed there under the pressure of and fears engendered by the September 11th attacks, has provoked remarkably little outrage here.

Our new imperial penal system has the same relationship to our justice system that the money American corporations send offshore does to the tax system. Where Americans have challenged our new prison arrangements, the media has paid remarkably little attention. Here's an example of three challengers who might, you would think, draw a stare or two. Reporter Frank Davies of the Miami Herald writes:

"Former Rear Adm. Don Guter felt the Pentagon shudder when an airliner hijacked by terrorists struck on Sept. 11, 2001. He helped evacuate shaken officers and later gave the eulogy for a colleague killed that day. ‘'I would have done anything that day, and I fully support the war on terrorism,'' said Guter, who served as judge advocate general, the Navy's chief legal officer, until he retired last year.

That makes Guter part of an unlikely trio -- joining his predecessor as Navy judge advocate general and a retired Marine general with expertise on prisoner issues -- challenging the Bush administration's indefinite detention of suspected terrorists at the Navy base in Guantánamo Bay, Cuba... Guter, Hutson and Brahms worry that Guantánamo may reverse a 200-year tradition of U.S. efforts to codify and protect the rights of prisoners... 'I'm a little surprised that [among the military] only three of us signed on to this,'' said Guter, surrounded in his office by the memorabilia of a 32-year Navy career."

This administration also quickly tested the post 9/11 limits of American justice by putting two lone citizens in domestic military brigs as presidentially-designated "enemy combatants": Yasser Hamdi, swept up in Afghanistan, and Jose Padilla, arrested at O'Hare International Airport in Chicago. Both have been held incommunicado ever since they landed in the brigs, while the American court system, cowed by the fears of the moment and the power of this administration, has until recently done little but back its extreme, constitution-busting decisions.

Just this week, however, two Federal appeals courts struck back, one taking on the Padilla case, the other the legal status of the prisoners in Guantanamo whose situation "without the protection of the American legal system" was, according to David Johnston of The New York Times, declared to be both "unconstitutional and a violation of international law." Johnston writes:

"The broad presidential powers invoked by the Bush administration after Sept. 11, 2001, to detain suspected terrorists outside the civilian court system is now being challenged by the federal courts, the very branch of the government the White House hoped to circumvent. The two separate appellate court rulings on Thursday swept away crucial parts of the administration's legal strategy to handle terrorist suspects outside the criminal justice system and incarcerate them indefinitely without access to lawyers or to the evidence against them...

'The Ninth Circuit decision said that you can't create a legal black hole in territory controlled by the United States,' [Human Rights Watch Directory Kenneth] Roth [said], referring to a second ruling on Thursday related to noncitizens captured in the Afghan war and detained at a naval base in Guantánamo Bay."

Human Rights Watch also issued a statement on the Padilla case worth checking out, and Brigid O'Neil of the libertarian Independent Institute has weighed in with a thoughtful piece on the case which serves as a reminder that the spectrum of American citizens, right, left, and center, disturbed by the steady erosion of our democratic values and protections in the name of bringing a muscular, imperial "democracy" to the world is broad indeed.

One of the great myths of empire is that what must be done in the service of the imperium among lesser peoples, or at least peoples of lesser standards of civilization, will not return to the "homeland" (another of these creeping imperial terms, by the way, which unlike "country" or "nation" implies a category of lands that are neither "home" nor exactly other, but are ours in some different way). As it happens, since the imperial is not just an expanse of territory or of bases or of control, but a state of mind, there are no borders capable of keeping it out.

We announce ourselves ready to bring "democracy" to an autocratic world, but in terms of cold, hard achievement, what we've delivered so far, other than a mess of an occupation of Iraq and a mess of an occupation of Afghanistan, is the idea of an eternal draconian war on "terrorism" and a global penal system beyond all oversight or any set of laws. That what we do out among the tributary states of the "developing world" won't make its way home to us in various forms is a fantasy. Empires come home. Ours is already here and growing amongst us.

I sensed that erosion this week as I watched the televised spectacle of news and punditry in the wake of Saddam's capture. Brian Whitaker of The Guardian has called our Iraq occupation policies "a case of the deaf playing it by ear," a wonderful description. To extend his image a bit, I think you could say that we're deaf to ourselves as well.

Wednesday night I listened for a while to Charlie Rose as several "experts" somewhat gleefully swapped suggestions about how we should plan to interrogate Saddam; then just after 11:30 I switched over to Nightline only to find yet another expert (and former interrogator) talking about the coming battle of wills with Saddam. Such experts turned out to be everywhere for this was the topic du jour. (As the war brought out all our former generals, so the occupation is bringing former agents and interrogators out of the woodwork. Our expertise seems to be all of a piece with our imperial mission.)

Of course, Donald Rumsfeld helped this process along this week by giving us a peek at the administration's thinking when it came to Saddam's interrogation. He announced that it would be "entrusted" to the CIA. As Brian Knowlton and David Stout of The New York Times report, that was an easy choice for our Secretary of Defense.

"'It was a three-minute decision,' he said, 'and the first two were for coffee.'

Mr. Rumsfeld did not rule out a Pentagon role for keeping the deposed dictator in custody, or for questioning him. But he said he and George J. Tenet, the director of central intelligence, had agreed that the C.I.A. should be the agency to decide just who questions Mr. Hussein, and where and when. 'They have the competence in that area, they have professionals in that area, they know the means that we have in terms of counterterrorism, they know the threads that have to come up through the needlehead.'"

As for complaints out there in the rest of the world that we might be "parading" or "humiliating" Saddam, Rumsfeld swore that "no aspect of Mr. Hussein's handling came even 'up on the edge' of violating the Geneva conventions." Of course, those should really be renamed the Washington conventions under the circumstances. And then the Secretary of Defense disclosed "that for at least one stretch Mr. Hussein spent several hours in what appeared to be a taxi. 'He didn't have the meter running,' Mr. Rumsfeld said."

I kept wondering whether this came directly from Comedy Central or from some stand-up club in Washington. It should take all our breaths away, but it doesn't. Instead we've been plunged into a media circus that rappelled down that "edge" and over to the other side with remarkable speed. Once our officials began happily considering interrogation techniques in public, the media picked up on the subject and raced off with it. How should our number-one captive be interrogated? Should he be kept in total isolation, fed false stories about what's going on in the outside world, woken from his sleep at uncomfortable hours, deprived of sleep altogether, shown his own regime's torture videos? Should we play on his overweening ego and narcissism? Should we insinuate an Arab (imagine that!) into the interrogation situation, one who professes not to agree with the U.S. 100%?

Those were among the many suggestions I heard on TV the other night or read about in the papers. Much of this would, in fact, be torture, even if the torturing was of a torturer, the former head of a regime of torturers, who had done unimaginably worse himself. Sleep deprivation, disorientation and so on -- all these methods undoubtedly can be found in American prisons; in prisons just about anywhere at any time in fact. But are they part of any stated American tradition? Not that I know of. Are they strategies to be bandied about on television, or ordered from the highest levels of our government? Do I even need to answer that? And don't you find it strange that no one in the media seems to find all this strange in the least? I didn't hear Charlie Rose or anyone else on TV -- not once -- say, "Hold on, a minute, I can't believe I'm hearing this stuff..." I didn't notice a follow-up New York Times editorial decrying what its own journalists reported.

Think of it as part of an atmosphere, one in which imperial strategies are heading home. There's always a reason. There's always an explanation. The targets chosen from Saddam to Padilla are unlikely to elicit sympathy from Americans. And there are always those terrorists to lend a terrifying hand. (Government officials are supposedly meeting this weekend to decide whether to raise our yellow alert status to orange. Can you imagine?)

A nation's attention is now focused on interrogation techniques that, politely put (and who is impolite about such things when it's our nation that's doing it), at the very least skirt the "edge" of crimes against human beings, if not humanity. And we're proud to discuss it. Let's trot the experts out and speculate about how to get the job done in the most efficient way possible. Why worry about the rule of law when you're dealing with a dark world of imprisonment meant to be beyond the rule of anyone's laws?

Here's the truth of it: We're getting used to this stuff. It's not just Charlie Rose who isn't indignant. It's becoming more and more American day by day. And don't you get the feeling that it's already later in the day than anyone imagined?

As a little antidote to all this, I'll recommend two pieces with genuine attitude -- Michael Moore on Saddam's capture, under the circumstances, a breath of fresh air in an airless land; and Philippine columnist Renato Redentor Constantino's reminder that our world can have a different look from the vantage point of one of those "developing countries" where terror may have quite another meaning.

Additional dispatches by Tom Engelhardt can be read throughout the week at TomDispatch, a web log of The Nation Institute.

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