By Benjamin G. Davis, Associate Professir of Law, University of Toledo College of Law, Advocates for US Torture Prosecutions
There is a tendency in legal academia to parse subjects into narrow domains.
The UN Committee Against Torture’s Concluding Observations on the United States ( http://www.ushrnetwork.org/news-updates/cat-concluding-observations-press-release for the USHRN press release and ahttp://tbinternet.ohchr.org/Treaties/CAT/Shared%20Documents/USA/INT_CAT_COC_USA_18893_E.pdf for the actual Concluding Observations) takes a holistic approach to the torture obligations that calls upon us to revisit our narrowness of perspective.
( Just Security has fallen prey to this unfortunate tendency which, when one reflects on it, really is untenable (http://justsecurity.org/17837/un-committee-torture-concluding-observations-united-states/). We shall see what lawfareblog does in due course.)
I. The International Law of Ferguson or the domestic aspects of the devastating criticism
Notwithstanding the ambient denial that pervades the media and the “why can’t we get along” or “blame the victim” tropes so familiar in the American media and social media space, the CAT is quite devastating in so many ways.
First and I think foremost, the CAT says quite clearly that African-Americans and Latinos are not living some collective hallucination about life in America. The CAT is basically saying that we hear you and you are not crazy. In this way, they rebut all those folks who continue to somehow deny the horrendous inequalities faced by minorities.
Second, and I will go into this in more detail in an update, the Concluding Observations are instructive on both the condemnation of law enforcement practices and the condemnation of judicial process from investigation through to punishment and imprisonment. The discomfort felt by the prosecution of the Darren Wilson case is understood and joined with as the CAT questions the independence of the processes in these kinds of cases.
Third, the entire immigration apparatus is roundly condemned for a wide number of profound flaws that simply do not pass muster under international standards. These criticisms go to both the substance of immigration detentions and the procedural shortcuts attempted to avoid providing due process to the immigrant populations.
Fourth, the treatment of LGBT’s and the legal hurdles to those prisoners seeking to fight their being raped – especially children – are brought to the light of the international community. While “tough guy” procedural hurdles may be popular, their perversity in the face of the dramatic experiences of prison rape is made an international issue.
Fifth, the perversions of the super max system and other forms of solitary confinement are again pointed out for their fundamental incompatibility with basic notions of human dignity of the incarcerated.
II. Repudiation of the entire US International Torture Program and Approach to Shielding of Senior Officials
If the domestic part is considered a condemnation, the international part amounts to a fundamental and full-throated repudiation of every aspect of the American bipartisan torture consensus.
First, with respect to the military commissions it declares them unfair process as a matter of international law. For an international laws of war tribunal to be declared unfair is devastating and reinforces the views of many of us who have written on the structural flaws of the military commissions and their flaws as applied. We too are not crazy.
Second, the force feeding at Guantanamo – a creature of the Obama Administration and current – is also seen as incompatible with the US obligations. Thus, the nurse who on ethical grounds refused to participate in the force feeding is vindicated and not the system.
Third, the investigations for accountability are confirmed to have been charades. They are simply not buying what the American delegation attempted to try to sell. The Durham and other investigations are simply not found credible. General Gross may have been played by the intelligence types, but the CAT was not impressed by the assurances of thousands of investigations. The American delegation has put the military in a bind now by the CAT now calling on the US to give numbers and do that within one year. The smokescreen attempted has backfired on the US delegation and for good reason. The absolute prohibition on torture is not some word game.
Fourth, the US stonewalling of foreign criminal and other investigations of the worldwide torture regime is called out as simply what it is: a failure to provide mutual legal assistance that is required under the treaty.
Fifth, the secrecy state is disrobed in public. Whether in the from of the enforced secrecy on detainees publicly being heard about the torture, the international standard unacceptability of the preconditions/constraints on any visit with detainees of the UN Special Rapporteur on torture, the mendacity on the release of the SSCI Torture Report, and other matters, the CAT is categoric on the US violations of our obligations.
Sixth, the CAT’s view on the need to investigate the command responsibility of the senior officials and the lawyers is stunningly blunt. The lawyers are discredited as providing “legal cover” using the exact language John Rizzo used to describe what he was doing in Company Man. They call the legalisms what they are: flawed. From the CAT, this kind of language is profoundly dismissive of these legal charades and the legal eagles so willing to besmirch the law in their zealous enabling of torture. Again, no amount of this legal mumbo jumbo passes muster for the CAT and the culpability of the lawyers and those they tried to shield is made patently obvious. There is a year given for us to get serious about our obligations.
Seventh, the call for investigations of the military goes directly at the military psychologists and the APA process and sees a crime to be prosecuted. The coverup is over and the efforts of those to seek accountability for those health professionals who tortured is brought to the fore again.
III. Summing up
The CAT is telling America that we have lost our way in so many ways on this peremptory norm. We have sold our souls and allowed a perversion of ourselves.
This report is much more than a wake-up call: it is a step by step dismantling of the torture state we have put in place and shielded domestically and internationally. It says just how far we have departed from elementaty standards and how we are in multiple breach of our obligations.
What usually happens when these things happen is that we get silence in the United States. Do not expect the President to come on television and tell us how far the international community we are ostensibly leading considers we have strayed from the city on the hill. That task is left to the ordinary citizens who have been derided these past ten years for saying what we have. But, now, we have the support of the devastating CAT report to back us up again the naysayers who have made a killing both literally and figuratively in the torture game.
Thanks to this report, the day of reckoning for these torturers is much closer than it was yesterday. For that, Americans of all stripes should thank the CAT for seeing through the fog of official torture bullshit.