By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law
I. Bringing Light To the Mushroom Theory of Governance – European Court of Human Rights, December 13, 2012 description of US process in the Al-Masri case
“2. Legal action in the United States
62. On 6 December 2005 the American Civil Liberties Union (ACLU) filed a claim on behalf of the applicant in the United States District Court for the Eastern District of Virginia against a number of defendants including the former CIA director George Tenet and certain unknown CIA agents. The claim alleged that the applicant had been deprived of his liberty in the absence of legal process and included a claim under the Alien Tort Statute (ATS) for violations of international legal norms prohibiting prolonged arbitrary detention and cruel, inhuman or degrading treatment.
63. In May 2006 the District Court dismissed the applicant’s claim, finding that the US Government had validly asserted the State secrets privilege. The District Court held that the State’s interest in preserving State secrets outweighed the applicant’s individual interest in justice. That decision was confirmed on appeal by the United States Court of Appeals for the Fourth Circuit. In October 2007 the Supreme Court refiised to review the case.” – EL-MASRI V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT (Application no. 39630/09), European Court of Human Rights, December 13, 2012 – http://www.lawfareblog.com/wp-content/uploads/2012/12/CASE-OF-ELMASRI-v.-THE-FORMER-YUGOSLAV-REPUBLIC-OF-MACEDONIA1.pdf
II. Mushroom Theory of Governance Part I -Keeping Citizens in the Dark (Exhibit A) -United States District Court decision declining release of videos of detainees of December 4, 2012
“ICB’s arguments against the Department’s invocation of Exemption 1 are unavailing. It essentially claims that the Court should divorce the solo images from the context in which theyare taken. In that light, ICB asserts that the Department’s primary reasons for withholding disclosure under Exemption 1– the use of images in propaganda efforts and covert communications – are too hypothetical and attenuated. But context matters. The Department has provided plausible, non-conclusory reasons why even solo images of detainees taken from the forced cell extraction videos could pose a substantial risk and danger to national security. The Court finds no reason to second-guess such assertions, particularly when this Circuit has deemed it “unwise” for courts “to undertake searching judicial review” when it comes to assessments of harms to national security based on the agency’s particular expertise. Larson, 565 F.3d at 865; see also Morley, 508 F.3d at 1124.” – INTERNATIONAL COUNSEL BUREAU and PILLSBURY, WINTHROP, SHAW, PITTMAN, LLP, v. UNITED STATES DEPARTMENT OF DEFENSE, (Civil Action No. 08-1063 (JDB)) John D. Bates, USDC – DC (December 4, 2012) –https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2008cv1063-82
III. Mushroom Theory of Governance Part I – Keeping Citizens in the Dark (Exhibit B) – 9/11 Military Commission Protective Order of December 6, 2012
“g. The terms “classified national security information andlor documents,” “classified information,” and “classified documents” include:
(4) any document or information as to which the Defense has been notified orally or in writing that such document or information contains classified information, including, but not limited to the following:
(a) Information that would reveal or tend to reveal details surrounding the capture of an accused other than the location and date;
(b) Information that would reveal or tend to reveal the foreign countries in which: Khalid Shaikh Mohammad and Mustafa Ahmed Adam al Hawsawi were detained from the time of their capture on or about I March 2003 through 6 September 2006; Walid Muhammad Salih Bin Anash and Ali Abdul Aziz Ali were detained from the time of their capture on or about 29 April 2003 through 6 September 2006; and Ramzi Binalshibh was detained from the time of his capture on or around 11 September 2002 through 6 September 2006.
(c) The names, identities, and physical descriptions of any persons involved with the capture, transfer, detention, or interrogation of an accused or specific dates regarding the same, from on or around the aforementioned capture dates through 6 September 2006;
(d) The enhanced interrogation techniques that were applied to an accused from on or around the aforementioned capture dates through 6 September 2006, including descriptions of the techniques as applied, the duration, frequency, sequencing, and limitations of those techniques; and
(e) Descriptions of the conditions of confmement of any of the accused from on or around the aforementioned capture dates through 6 September 2006;
(5) In addition, the term “information” shall include, without limitation, observations and experiences of an accused with respect to the matters set forth in subparagraphs 2g(4)(a)-(e), above.
(6) any document or information obtained from or related to a foreign government or dealing with matters of U.S. foreign policy, intelligence, or military operations, which is known to be closely held and potentially damaging to the national security of the United States or its allies.
f. No member of the Defense, including any defense witness, is authorized to disclose any classified information obtained during this case, outside the immediate parameters of these military commission proceedings. If any member of the Defense, any accused, or any defense witness receives any summons, subpoena, or court order, or the equivalent thereof, from any United States or foreign court or on behalf of any criminal or civil investigative entity within the United States or from any foreign entity, the Defense, including defense witnesses, shall immediately notify the Commission, the Chief Security Manager, Office of Military Commissions, and the Government so that appropriate consideration can be given to the matter by the Commission and the OCA of the materials concerned. Absent authority from the Commission or the Government, the Defense, an accused, and defense witnesses are not authorized to disseminate or disclose classified materials in response to such requests. The Defense, an accused, and defense witnesses and experts are not authorized to use or refer to any classified infonnation obtained as a result of their participation in commission proceedings in any other forum, or in a military commission proceeding involving another detainee.” – UNITED STATES OF AMERlCA v. KHALID SHAIKH MOHAMMAD, WALlD MUHAMMAD SALIH MUBARAK BIN ATTASH, RAMZI BINALSHIBH, ALI ABDUL AZIZ ALI, MUSTAFA AHMED ADAM ALHAWSAWI, AE 103P, PROTECTIVE ORDER #1 To Protect Against Disclosure of National Security Information, MILITARY COMMISSIONS TRlAL JUDICIARY, GUANTANAMO BAY, CUBA (MC Judge James L. Pohl), December 6, 2012 –http://www.lawfareblog.com/wp-content/uploads/2012/12/KSM-1.pdf
IV. Mushroom Theory of Governance Part II – Throwing Manure (Propaganda) on Citizens – Trailer for Zero Dark Thirty –
Zero Dark Thirty Trailer:http://www.sonypictures.com/previews/movies/zerodarkthirty/clips/5343/
Official site: http://www.zerodarkthirty-movie.com/site/
The picture spans from 2003 until May 1st, 2011 as it follows Maya (Chastain) as she feverishly pursues a singular lead involving a possibly important Al-Qaeda messenger who she believes is close enough to Bin Laden to warrant absolute attention. Through her we get a look at how the CIA went to work in the aftermath of 9/11 (the picture opens with an audio reminder of the attacks, arguably more for future generations than for us) and through her we see the years of weariness, false leads, dashed hopes, and seeming futility of it all. We see plenty of ‘enhanced interrogations,’ many of them conducted by Dan (Jason Clarke) who initiates Maya into the field right from the start. The film seems to view torture as a necessary evil, although eagle-eyed viewers will note that it doesn’t elicit all that much of use. Of note, the only time we see any major politician onscreen is when Barack Obama is shown on 60 Minutes stating that American does not torture to which Maya and Don and the others watching do all they can not to roll their eyes. http://www.huffingtonpost.com/scott-mendelson/zero-dark-thirty-review-_b_2239385.html
I wish that I could stop writing about these things on which I have written for it seems like forever but probably is around eight years. I wish that I could just go about writing on topics that are more fun like internationa commercial arbitration or on aspects of alternative dispute resolution. But, my damn muse keeps calling me out and insisting that I add one more thing to the debate. And, on this day when we find out if the Senate Intelligence Committee will approve and issue a report on the torture, my muse again calls me to write.
Last evening my muse brought to me the thought of living as a citizen under what I am terming the Mushroom Theory of Governance. For those in corporate settings or business schools, I am certain they are familiar with the Mushroom Theory of Management. It is a colloquial term used to describe a management style where workers are kept in the dark. In this parlance, workers are treated the way we supposedly grow mushrooms: mushrooms are kept in the dark and “manure” is thrown on them. (I would use the more colloquial sh*t but fear that would be seen as too “street” or “working class” for the sensibilities of our elites – though I do not for one minute think those American elites are demonstrating any type of class about these topics to warrant my pudeur as the French would say or modesty). In business, just like with mushrooms, top management in this style of management keeps the workers in the dark and throws nonsense on the workers treating them with disdain and a ruthless indifference like objects.
As in management, my muse suggested to me that the form of governance on torture I am living under in my country now is best characterized as a Mushroom Theory of Governance. This form of governance has been emanating for years from the Executive, Legislature and Judiciary and, as demonstrated above, continues all the more so this week.
It is characterized by keeping the citizen in the dark through classification of everything about what must have been a massive amount of torture. Why do I think it must have been massive? I have already read the massive Senate Armed Services Committee report of December 2008 which laid out in painstaking detail the origins and implementation on the military side of the torture regime. From recent reports I learn that the Senate Intelligence Committee has a report that is classified and is 3 000 pages long. The Senate Intelligence Committee report is also supposed to be based on a review of millions of pages of documents. I also am aware of the investigation into CIA Torture done by John Durham that took years from its inception in early January 2009 after the destruction of the CIA torture tapes on the Al-Qahtani interrogations. Add to that the Justice Department and CIA Inspector General reports on aspects of the torture, the cases that have been dismissed in United States courts on state secrets grounds on the torture, and on and on.
The inescapable conclusion for an ordinary citizen like me is that the torture regime that is being kept from my view as an ordinary citizen was massive and transnational. The torture regime implicates so many levels of intelligence services domestically and internationally and, most importantly, this regime was put in place at the instigation of my government that is doing its level best – whether Democrat or Republican – to keep its torture handiwork from my eyes.
For the high value detainees in the military commissions cases – for which I want justice to be rendered of the highest quality in our federal courts – the effort to hide is so intense that we cobble together a military commission system with the collusion of the Legislature and the Executive. While I am observing those military commission hearings and will go to Guantanamo at the end of January 2013 to observe more, one thing that keeps striking me is that the lawyers in the room and the judge are decent people playing in a game where the action is actually off screen. I feel the weight of the machinations of the intelligence community offscreen trying to tailor what is allowed in and what I as a citizen am allowed to hear about what they have done in my name. Whether with a former or current leadership, I can see the relentless push to keep citizens in the dark about what was done in their name and to bureaucratically protect these intelligence sources and methods and people from accountability for the torture they did at the behest of our leadership and with the acquiescence of our Legislative leaders who were informed in real time of what was going on.
But, as if this push was not enough, there are the tidbits released here and there along the way that are like scraps of information that the citizen is supposed to be thankful for receiving. These tidbits may be true and may also be misinformation. For example, one I loved was that waterboarding was only used three times. Then later we learn that what that really meant is that three people were waterboarded. And then we learn later that individuals were waterboarded from 80 to 180 times. The first version is misdirection. The second version is misdirection. Why is the third version not also misdirection in a dance of the veils of secrecy that is done as part of keeping ordinary citizens in the dark?
So, in addition to the keeping us in the dark, there is the effort to throw manure on us in the form of misdirection, half truths, outright lies, and on and on and on. We get these false debates created by someone taking a position that assures one can say there is disagreement on elemental things. Take the torture works or torture does not work line of argument. For every person who says it does not work, quickly one of those who did torture is brought out to trumpet the effectiveness of the torture that was done. It has happened so many times, with the ultimate effort of leading the ordinary citizen to say “there is controversy” about these things. And that debate is a further version of the debate on what is torture with the redefinition of torture by those seeking to permit it being part and parcel of allowing misinformation to be spread that we do not torture.
And, if all this was not enough, whether in the show 24 or in the new iteration of Zero Dark Thirty about which I wrote earlier this week, we are encouraged as citizens to literally sit in the dark and let the manure of lies about the efficacy of torture be played in front of us by people who were given “extraordinary access” to the people in the intelligence community who are desperately resisting accountability for the torture that they did in our name.
Some would think that the courts would be the refuge for sanity. So the alphabet soup of organizations such as the ACLU or CCR or others bring these cases much like lawyers in apartheid South Africa would fight the pass laws under perverse law – the modest way to seek justice. Yet, all of these efforts over and over and whether with regard to a foreigner or an American end up being dismissed due to state secrets or immunity doctrines cobbled together by those temples of equal justice under the law.
Reading the European Court of Human Rights decision today, I was struck by the concurrences which placed great emphasis on Mr. El-Masri’s right to the truth. The right to have an accounting in public of what happened to him.
It occurred to me that in the cases brought by plaintiffs in our system against the government and government officials about the torture, the arguments which are balanced by the court do not place much weight on the one person who is not in the courtroom – the ordinary citizen in whose name that court is to render justice and who is absolutely certain that his government is hiding something from him. This citizen is not a plaintiff for he has no standing in such cases. He is a person living under the governance and who thinks that justice has meaning in our republic. This citizen has a sense of the skepticism of government that animated the framers of our constitution in creating a system of dual sovereigns in our federalism and separation of powers as a means to protect the rights of the people as Alexander Hamilton and James Madison described in the Federalist Papers. It is a citizen that saw the harassment of dissenters in the civil rights movement by state and federal officials in the ordinary course of their work. Or the harassment of anti-war protestors in the Vietnam era. Or the harassment of dissenters who seek to exercise their First Amendment rights of assembly in Occupy Wall Street and others places and who are met with massive amounts of police suppression. Or the harassment of ordinary citizens whose legislatures manipulate the state voting laws to suppress the vote and join with private interests in a public-private partnership to intimidate the weakest in our system as they dare – yes dare – to exercise the right of suffrage. Or the harassment of Muslim-Americans or Muslim-looking (whatever that means) people in the United States. Or a citizen who knows that this blogpost as it is written is going into some database with his name on it at the National Security Agency as part of cataloguing all of his activities like that of anyone on the internet. Or a citizen who sees the acts of government and is not willing to consider government either a benevolent or evil structure but attempts to see clearly just what the government is doing – notwithstanding its rhetoric.
It is that citizen who does not wish to be a mushroom in the mushroom theory of governance that is not represented in that courtroom. It is that citizen’s right to the truth that is lost in this governance process by those relentless in seeking to avoid their accountability. It is the circles of power that protect themselves as things revolve through the Executive, Legislature and Judiciary that that citizen contemplates and calls out – insisting on the citizen’s right to the truth.
We ordinary citizens can handle the truth. What those in the Mushroom Theory of Governance can not handle is telling it to us. Because, they know, that if we knew, it would not be some obscure group in some far away country that would be up in arms – it is us, the ordinary American citizens who would call them to account for their panic, for their betrayal of the American values we have been taught to espouse and cherish, and for besmirching the honor of our country. It is they that can not handle the truth, but it is us as citizens that must insist on our right to the Truth.