(Update) On Black Sites: Yes, Going There on Cleveland AND the American War on Terror Torture

By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law

(with great appreciation for a dialogue with Sheila Willamowski, 3L, University of Toledo College of Law)

Kidnapped off the street, hustled into a vehicle, disappeared into a structure, tortured, sexually assaulted, beaten, degraded, shackled, and so held as a captive for over ten years with no end in sight by a man.  Amanda, Gina, and Michelle and the little girl surge from that dark Cleveland hell into our collective conscious.  As we watch the first court appearance of the alleged perpetrator of these horrors and read the stories of the brutally forced miscarriages and the other degradation of these human beings, I for one am just left in shock at how this could have happened.  We hear the stories of people who saw the kidnapping of Gina and spoke to the police.  Of people who saw a naked woman running through the backyard before it was covered by the brutalizer and called the police.  Of people who saw a woman banging on a window and holding up that little girl to get a neighbor’s attention who said they contacted the police.  All to no  avail.  Only with the combination  of Amanda’s relentless desire to escape this hell, and the most sublime of innocent bystanders – Charles Ramsey, Angela Cordero, and Ms. Tejeda – was this decade long descent into the deep abyss of the human soul ended.  As we saw Amanda and Gina returned to their families and as we pray for the recovery of Michelle and the little girl too, we see the outpouring of love from their families and their neighbors.  We read of the heartache of Gina’s mom who died of a broken heart after all these years.  We are relieved that this brute will face his day in court and be held accountable.

The natural reaction that I have and that everyone I know has is that this man should be taken out and shot.  And, if I was Amanda’s father or brother, I might be tempted to do that.  I understand that these three women are not suffering from Stockholm Syndrome but are feeling and expressing the profound hate they have for their captor.  We share that hate and look for answers as to the source of his sociopathy – maybe genetic or maybe from his environment – neither of them being an excuse for his depravity.

But, consistent with a civilized society, their captor is not being taken out and shot.  He is to be tried, and if convicted, punished for his alleged crimes.  That is as it should be though I regret this did not happen years ago.

Kidnapped off the street, hustled into a vehicle, disappeared into a structure, tortured, sexually brutalized, beaten, degraded, shackled, and so held as a captive for over ten years with no end in sight by a government.  As described in the most recent report of the Constitution Project (subject of a C-span presentation this morning on Capitol Hill under the auspices of the National Religious Campaign Against Torture) years of thousands of people enduring massive torture across 54 countries done by men and women in the name of our country surge again from that hell into our conscious.  We learn that among those tortured it is without doubt that there were many who are as innocent as Amanda, Gina, and Michelle.  We know that some who likely bear some guilt like Al-Qahtani have been tortured into a mental state beyond the borders of sanity.  Still others like Khalid Sheikh Mohammed have aged significantly but remain within the borders of sanity even though we learn of the massive destruction he allegedly sought to cause.

Private black site in Cleveland, Public black sites in prisons that stretch around the world with names like Abu Ghraib, Poland and Gitmo.  A common theme in both places is one or more human beings torturing one or more human beings.

Some would say that I am making a false equivalence.  For example they would say that there was no redeeming feature to the torture in Cleveland by the private man in his depravity.  On the other hand, they would say that there was a redeeming feature to the torture around the world by my government and its servitors as that depravity was done to seek actionable intelligence or to break these enemies of the state.  Any innocence in that torture are unfortunate but necessary collateral damage in that effort.

Another way we might bring this home is to imagine that someone held at one of those CIA public black sites had information about where these women were being held in the Cleveland private black site.  Some would argue that the torture at the public black site would be both legal and legitimate as a means to provide the intelligence to end the torture in the private black site.  Surely, down this utilitarian path of argument, we would say that the public black site torture in theory would be good torture because it led to the outcome of ending the Cleveland black site torture(“bad torture”).  At a minimum, in this argument, the CIA public black site torture should be excused on some ground like necessity or self-defense (defense of another) for surely in this thought experiment a greater good has been created by the ending of the Cleveland black site bad torture.

One could also frame the discussion in another way in trying to measure the extent to which the public black site torture aided the elimination of the private black site torture.  Was it of no aid, of incidental aid, a substantial aid, or a beyond a reasonable doubt aid to the elimination of the private black site torture.  The degree of valence of the public black site torture might be broken down in terms of an act and its probability of aiding the ending of the black site torture.

Darius Rejali has written on this good torture/bad torture attempted distinction from the days of the dirty wars in Latin America.  The state did good torture and the rebels did bad torture – in that rationalization.

Ah yes, the state.  So we come to the role that we ask of our state.  In cases of private black site torture, the law criminalizes that activity and the state (even with prosecutorial discretion) is granted the power by the citizenry to try and, if successfully tried, punish the perpetrator  in accordance with law.  The contours of the crime and punishment are legislated as domestic law.

In the cases of public black site torture, so far the law criminalizes that activity and the state (even with prosecutorial discretion) is granted the power by the citizenry to try and, if successfully tried, punish the perpetrators in accordance with law.  The contours of the crime and punishment are legislated as domestic law.

That domestic law criminalization also occurs in the context of the ergo omnes peremptory norms against torture in both treaty and customary international law and whether one is in  international human rights law or international humanitarian law.  While domestic law may admit of defenses to excuse private black site torture, domestic law provides few pathways for excuse and international  law strictly prohibits the public black site torture.

For international law, there is no good torture.  What would have happened at the CIA public black site notwithstanding its benefit to ending, in our hypothetical, the Cleveland private black site torture would have been a crime.

And what happened in the massive public black site torture in the real world and what happened in the horrendous private black site torture in the real world remain what they are – horrendous criminality of epic proportions.

The private black site torture is on the path to prosecution and punishment with a risk of criminal liability being found leading to deprivation of liberty or even the death sentence.  The public black site torture has been a subject of low level prosecutions of the instruments of torture but absolutely no risk for the high-level civilians or military leaders of criminal liability leading to deprivation of liberty or even the possibility of facing a death sentence.

Some may wish to see these attacks on human dignity in the Cleveland private black sites as somehow different from the attacks on human dignity in the CIA public black sites.  What I see, through my minds eye, is a person shackled in a room who is being subject to abuse by another person – in the Cleveland private black site and in the CIA public black site.

No one – whether private individual or public individual working for the state – is permitted to torture, unless all of us permit them to torture.

And, all I ask is that – like Charles Ramsey – we put down our MacDonald’s and do not turn our heads from the screams of the past ten years or the silent scream of the ongoing hunger strikes in Guantanamo of those held without end in sight (indefinite detention) and make the duplicity and horror stop.  And, like that prosecutor in Cleveland, a prosecutor take the case against the high-level civilian and military leaders who put in place these CIA public black sites and punish these people to the full extent of the law.

I have been asking for this since 2004.  And others from far earlier than that.

After Cleveland, can you hear me now?

(Update –  Above I refer to the National Religious Campaign Against Torture program last Thursday on Capitol Hill. On Monday there is a program at the Heritage Foundation where four present and former civilians responsible for detainees will do a lessons learned and looking forward type presentation. One of the few frustrations of being out here is the inability to pop over on my own dime to these meetings in DC or New York to challenge these people. Two (Waxman and Stimson) were present at least as witnesses in the detainee treatment space in government when all the horrors of the Bush Administration were occurring. Lietzau was there at the time at least of the earlier hunger strike at Guantanamo. It strains logic that we ascribe credibility to such persons given what we know now about what happened on their watch and which they either cheerleaded or did insufficient amounts including resign in protest on the torture. I hope someone is there to speak that kind of truth to that kind of power as I am financially unable to do it.)