I Can't Breathe: American Torture as America's 21st Century Lynch Law

By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law, Advocates for US Torture Prosecutions

“I can’t breathe” is on the t-shirts and in the mouths of demonstrators all over America as they protest the non-indictment of Eric Garner’s killers in New York, the non-indictment of Michael Brown’s killer in Ferguson, the acquittal of Trayvon Martin’s killer in Florida and case after case of unarmed black men and women killed by the police all across America.  On the media, we see a diverse group of Americans in the 24/7 news cycle dissecting every aspect of those cases and trying to make meaning of all that.

And I support those efforts to address the profound contradiction experienced by many Americans at  watching a man get killed on videotape by the police and the judicial process concluding there was not enough evidence for probable cause to even have a trial.  The dissonance between that image of that black man dying and the legal process is stark, especially for the many lawyers who have commented on that experience.

Contrast that phenomenon with another situation where a person was intentionally made to not be able to breathe, was made to feel like they were drowning.  A situation in which they could not talk – using Congressman’s Peter King’s apocryphal test to suggest Eric Garner was not in such bad shape.

If on this Human Rights Day, the person reading this message has no clue about which person I speak then let me dissipate your implicit bias: Abu Zubaydah or Khalid Sheikh Mohammed.  The Senate Select Committee on Intelligence Executive Summary of their Torture Report describes in detail the intentional causing of at least these detainees to not be able to breathe.

While we can lament the death of Eric Garner we saw on videotape and see the recklessness of what was done to him, with Abu Zubaydah or Khalid Sheikh Mohammed there is the cold implacable intentionality of the torturer at work.

As Michael Hayden so artfully expressed it on Morning Joe this morning, the people at the CIA believed that they were doing the will of the American people.  And, how did they come to  that view?  Because the President authorized it, Congress was briefed, the Justice Department (John Yoo resurfaced today also – I guess it is about him and not just the Berkeley people he disdained by saying their torture protest was more about them) said it was legal, and the Director of the CIA (Tenet, Hayden and Goss like Moe, Larry and Curly did their tap dance for torture over at the Wall Street Journal today) said it was good to do, well that makes it ok.

Under their logic, in the “edgy” space that Michael Hayden takes such pleasure in denoting, as long as the President authorized slavery, Congress was briefed, the Justice Department signed off on it, and the Director of the CIA thought it was a good idea, well that makes it ok.

Under their logic, in this “edgy” space, as long as the President authorizes killing unarmed black men, Congress is briefed, the Justice Department signs off on it, and the Director of the CIA thinks it is a good idea, well that makes it ok.

Under their logic, in this “edgy” space, as long as the President authorizes interning Japanese-Americans, Congress is briefed, the Justice Department signs off on it, and the Director of the CIA thinks it is a good idea, well that makes it ok.

Under their logic, in this “edgy” space, as long as the President authorizes the killing of schoolchildren, Congress is briefed, the Justice Department signs off on it, and the Director of the CIA thinks it is a good idea, well that makes it ok.

Under their logic, however, what do you do with the Congress people who were briefed and objected, the Justice Department or other departments like then State Legal Advisor William Taft or counselor Philip Zelikow, or Department of Defense types like Alberto Mora and the four uniformed top JAG officers,  or the nameless lawyers in Justice who did not think this was a bright idea.  Or the operators at the CIA who did not agree with going down this path.  Do they fit into this schema anywhere or are they just to be seen as some kind of collateral damage in the will to power and torture that was ambient in this environment.

What about the Justice Departments profound ignorance of international law and the traditional role of the Legal Adviser at State on advising on matters related to international law?  Is somehow the intentional circumvention of that part of the interagency process some “mistake that was made” or more a concerted effort to line up the ducks that will permit torture and shoot the ones that might object?

Maybe I am missing something here.  After all, from what I have watched for the last two days the speakers on the topic of torture and the “disinterested” commentators – with the exception of a brief Fareed Zakaria intervention – have all been white Americans.  Maybe this is a white thing that I am not supposed to understand.

Sorry, two exceptions today.  John Yoo, coming out of Berkeley, to defend what was done and Tim Scott, South Carolina Republican Senator, toeing the torture wing of the Republican party’s party line.  But, across the table among the invited commentators, a stream of white snow.

It made me think of the debates that must have happened early in the 20th century when there were efforts to have the federal government pass an anti-lynching law.  The Southern Senators blocked those efforts at every turn.  In that case, most of those being lynched were not white, yet those who were called to criminalize behavior by white mobs were white and somehow just could not bring themselves to pass such a law.

Today, we have a timid black President, who shows such a profound reticence in dealing with the torture that he reveals his fundamental lack of any real moral authority.  He is just another politician trying to see which way the wind is blowing and fearful of the Neanderthals that exult in their worldwide torture regime.

But, he is in good company, for the business elite are only interested in how they might get a piece of the action, the judges have regularly closed the door to the claims of these detainees to any abuse, and the media is having a ratings field day by putting on persons to regale us with their torture adeptness who would normally be defendants in any normally constituted reality.

I can’t breathe.  We are truly a zombie nation – walking around and dead in our souls.