Building Education for the Commons
Politics by Other Means: ‘Black Sites Matter.’
-Michael Kilburn, contributor
In early December 2014, a grand jury in Staten Island declined to issue an indictment in the choking death of Eric Garner, a 45 year old African American who was violently subdued by 5 police officers on suspicion of selling “loosies” (individual cigarettes). Despite video evidence of excessive force, including the use of a banned chokehold, and flagrant disregard for the victim, who gasped “I can’t breathe!” 11 times before losing consciousness and was left handcuffed and unaided on the sidewalk for 7 minutes after his collapse until the ambulance arrived; despite the medical examiner’s office ruling that Mr. Garner’s death was a homicide, the grand jury determined that there was no criminal liability.
It is important to understand that a grand jury is not a trial –though exceptionally Officer Pantaleo alone was permitted to give testimony in his own defense- but simply a determination whether there is sufficient evidence to proceed to trial. In most cases, a grand jury is little more than a rubber stamp; hence the famous quip by NY state chief judge Sol Wachtler that a prosecutor could get a grand jury to “indict a ham sandwich.” Of 162,000 prosecutions sought by US attorneys in 2010, for example, grand juries declined an indictment in only 11 cases (a rejection rate of 0.000068%)  In the face of seemingly self-evident criminal wrongdoing, after the needless death of a 43 year old father of six, the grand jury decided the police had done nothing wrong.
Coming just a week after a grand jury in Missouri chose not to indict Officer Darren Wilson for the killing of Michael Brown in Ferguson, and following a series of high profile deaths of unarmed black men and children by police, including John Crawford (for picking up a bb gun in a Walmart) in Ohio, 13 year old Andy Lopez in Sonoma County, Akai Gurley in a Brooklyn stairwell, and 12 year old Tamir Rice in a park in Cleveland, among others, Garner’s famous last words –“I can’t breathe!”- became an anthem of nationwide protest against racism, police brutality, and a culture of impunity. Like the seemingly self-evident slogan of the 1960’s civil right protests, “I am a man,” the rallying cry of the current movement is simply “Black lives matter.”
Less than a week after the Staten Island grand jury decision, the bipartisan US Senate Select Committee on Intelligence released the executive summary of its oversight investigation of the CIA’s detention and interrogation program under the Bush administration. While most of the 6700 page report remains classified, the 525 page summary reveals grisly and shocking details of a global and systematic regime of torture, rape, kidnapping, and murder, indefinite secret detention, and other abuses of power, and concludes -contrary to CIA and Bush administration apologists- that the so-called “enhanced interrogations” provided no useful intelligence, did not prevent any attacks, and undermined national security and legitimacy by fitting neatly into the jihadist narrative of America as a rogue nation. (It’s no coincidence that ISIS dresses its victims in orange jumpsuits before beheading or burning them alive). The details and conclusions of the report are apparently replicated by a secret internal review conducted by former CIA director Leon Panetta, which also refutes the official CIA response to the SSCI. It is an astonishingly frank and shameful document and should be required reading by all Americans. (The summary report is available at: http://www.intelligence.senate.gov/study2014/sscistudy1.pdf)
Despite overwhelming evidence of crimes against US and international law, violations of human rights, dignity, bodily integrity, and due process against prisoners (none of whom were charged or tried), and the moral outrage of grotesque sexual humiliations, “rectal feeding”, confinement in coffins with insects, mock executions, threats to rape and murder the wives and children of detainees (and force them to watch), and other abominations; despite evidence the CIA destroyed evidence and lied to Congress, and itself knew and acknowledged the program was illegal (demanding pardons in advance from the Attorney General), the Obama administration, the Justice Department and the majority of Americans, like the grand jury in Staten Island, have simply decided not to indict.
After a six year investigation that reviewed more than six million pages of CIA materials, including operational cables, intelligence reports, internal memoranda and emails, briefing materials, interview transcripts, contracts, and other records, the evidence of criminal conduct is clear. As early as 2004, an internal investigation by Major General Antonio Taguba concluded that “there is no longer any doubt as to whether the current [Bush] administration has committed war crimes…the only question that remains to be answered is whether those who ordered the use of torture will be held to account.”
Obama had campaigned against the Bush administration’s execution of the war on terror, against torture and the detention facility at Guantanamo Bay, and one of his first actions as President was to issue executive order 13491 mandating compliance with the Geneva Conventions and the Army Field manual in the treatment of all detainees, effectively ending the torture program.
But he has also steadfastly refused to investigate, indict, or prosecute any of the architects, agents, or contractors who carried out these crimes. Ironically, the only person in jail for the entire torture program is the CIA agent who revealed its existence in the first place: John Kiriakou, currently serving a 30 month sentence under the Espionage Act.
Despite his own moralizing and Attorney General Eric Holder’s pledge the “we owe the American people a reckoning,” Obama has granted blanket immunity to all those involved in the program and closed the only 2 investigations underway, both involving the deaths of detainees while in CIA custody. While admitting that the program was “inconsistent with our values as a nation,” he averred that “we need to look forward, not backward.” (Perhaps he is looking forward to the professional courtesy of immunity for his own crimes, such as the drone policy and summary execution of American citizens).
Meanwhile, Bush administration officials have preemptively and brazenly defended their actions in speeches and interviews, with Vice President Cheney boasting recently on Meet the Press that torture is justified even against innocent people and that he would do it all again in a heartbeat (if he had one).
Obama’s failure to indict or even investigate those involved in the CIA torture program is not just an affront to the rule of law, but is itself a crime of obstruction of justice and a violation of our treaty obligations under the Convention against Torture, ratified by the US in 1994. The CAT clearly outlines the legal obligations of signatories: “Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.” (Art. 12) In exceptionally transparent language, the Convention refutes all the excuses given by the Bush administration and other apologists for the program: “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture” and “an order from a superior officer or a public authority may not be invoked as a justification of torture” (Art. 2.2-3).
Accordingly, the October 2014 response of the UN Committee against Torture to the 2013 US periodic review lambasts the Obama administration for shielding senior Bush administration officials and CIA employees from responsibility for their admitted role in authorizing, designing, and implementing a global criminal regime of torture in flagrant violation of domestic, treaty, and customary international law. As a violation of fundamental human rights as well as treaty obligations, torture is subject to universal jurisdiction under the principle that anyone who commits such acts is branded hostis humani generis (an enemy of all mankind) and should have no asylum or refuge anywhere.
The Obama administration’s refusal to investigate former officials, not to mention its retaliation against whistleblowers, and threats against Spain, Germany, and other allies to suppress their own investigations, flies in the face of all legal and moral responsibility and degrades the name and credibility of the United States. Blanket amnesties and ex-post immunity from prosecution for grave breaches of the Geneva Conventions and the basest crimes against humanity are de rigeur for dictators like Idi Amin or Augusto Pinochet, but unworthy of a nation of rights and laws.
The rule of law is a foundational tenet of liberal democracy and central to our national identity and values. When crimes are committed – whether by our enemies or our own citizens, police, or highest elected officials- all are equal and none are above the law. The accused should be fairly and impartially investigated and if found guilty in a court of law, punished accordingly. When there is no accountability for crimes, when those with white or executive privilege are considered above the law, then the entire constitutional system loses its legitimacy. Lack of accountability also threatens the peremptory norm against torture and executive high crimes and misdemeanors (making them more likely in the future), undermines the foundation of a civil society under the rule of law, and gives aid and comfort to our enemies. While criticizing totalitarian regimes like North Korea for undemocratic behavior and violations of human rights, and waging war against terrorist vigilantes like ISIS for their spectacular atrocities (and rightly so!), we allow war criminals, torturers, and rapists to walk free among us with impunity. As George Washington said, “What a triumph for the advocates of despotism to find that we are incapable of governing ourselves.”
Since the US is a representative democracy, a government “of, by, and for the people,” all of this was and is done with our implied consent. A collective failure to indict indicts all of us. We cannot “look forward” in any meaningful way without coming to terms with the past, without understanding and taking responsibility for what was done in our name. We must demand that the actions of our government “always reflect who we are as a nation and adhere to our laws and standards.” We must consistently hold our leaders, our police, and yes, ourselves accountable if we ever hope to live out the true meaning of our creed.
 Taguba Report, cited in http://www.washingtonpost.com/wp-dyn/content/blog/2008/06/18/BL2008061801546.html He was forced to retire after releasing his report.
 Letter to John Jay on the “Deficiencies of the Confederation” 08/01/1786. On the specific issue of the treatment of enemy prisoners, he charged the Northern Expeditionary Force in Sept. 1775: “Should any American soldier be so base and infamous as to injure any [prisoner]. . . I do most earnestly enjoin you to bring him to such severe and exemplary punishment as the enormity of the crime may require. Should it extend to death itself, it will not be disproportional to its guilt at such a time and in such a cause… for by such conduct they bring shame, disgrace and ruin to themselves and their country.”
 Diane Feinstein, Forward to the SSCI report
Michael Kilburn is an Associate Professor of Political Science and holds an M.A. and Ph.D. in Interdisciplinary Studies from Emory University and a B.A. Honors from St. Thomas University in Fredericton, NB, Canada. His doctoral work was in the field of East European politics, history, and culture. He currently teaches courses in political theory and practice, human rights, and cultural studies, and he is the founder of the Endicott Center for Oral History, which supports oral history projects on campus and internationally. Prior to Endicott College, he taught at Emory University, the Atlanta College of Art, and abroad in Canada, Japan, and the Czech Republic. He is a member of the American Political Science Association, the International Studies Association, the World Society of Victimology, the International Human Rights Education Consortium, the Oral History Association, and the International Oral History Association. He is also the faculty adviser for the Political Awareness Club, a facilitator for Global Undergraduate programs, and the campus representative for the Fulbright Program.
Dr. Michael Kilburn’s area of expertise includes: American and International politics, human rights, and oral history.