Re: Torture as American State Policy

December 10, 2004
Re: Torture As American State Policy
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.blogspot.com


Dear Colleagues:

Back in the 1940s, 1950s and 1960s, a question that constantly arose in constitutional law, in civil rights cases, was whether particular actions were state policy, or were only the private conduct of individuals. If they were state policy (technically called "state action"), various constitutional and statutory restrictions on them would apply. Otherwise not. So, for example, when homeowners had private, contractual, court enforced covenants forbidding sales of their homes to blacks (and Jews), was this state action because segregation was the general order of the day in the South or because governmental courts enforced the covenants everywhere, or was it only private action because the covenants were between private parties? When blacks were kept from voting in a primary that was run by some "private" group but that in reality determined Democratic party candidates in the South -- an election which therefore was the only one that counted in the benighted South of those days (today it would be the Republican primary that counts in that still semi-benighted region) -- was this state action because in reality blacks were being barred from participating in the electoral process, or was it only private action because the primary was held by a private group? When a privately-owned coffee shop in a governmental building barred blacks, was this state action because the building as a whole was owned and controlled by government, or was it private action because the coffee shop itself was owned by private persons? When sheriff’s office officials in Medieval Mississippi helped a mob trail, waylay, kill and bury Schwerner, Chaney and Goodman, was this state action because sheriff’s office personnel helped the mob, or was it only private action because the (rest of the) mob was comprised of private people?

It took a long time to get there, but the courts belatedly, tardily, came down on the side of saying these things were state action and therefore subject to the law, not private action immune from the law. And a good thing too -- even if courts said it 80 to 95 years late -- if one wants a decent society.

It is not generally recognized that today we are faced with the same kind of question of whether certain action is state policy -- state action, if you will -- or only private policy. The question in this case involves the use of torture.

American statutory domestic law forbids the use of torture. So does international law -- although the Bush administration does not consider itself bound by international law. At least because our domestic statutory law forbids torture, one would think it might be hard to say that torture can be official American state policy, American governmental policy. Yet, as anybody who is half way sensate should know by now, the military and the CIA have been using torture all over the world to try to get information from prisoners. Prisoners -- including, apparently, at least some people who are guilty of nothing and who know nothing -- have been tortured at Guantanamo, at Abu Ghraib, and at what might be called the secret American equivalent of "reeducation camps" (like those of North Viet Nam or, I think, China) located in places such as Pakistan, Thailand, Egypt and God knows where all.

To these camps, located abroad in an effort to escape the strictures of American law, have been sent so called "high value" prisoners, to be tortured by allies, with Americans apparently looking on, helping out or directing events. Two of the groups engaging in torture are arms of the Executive: the CIA and the military. Other Executive personnel, starting with the highly immoral (former drunk) G.W. Bush himself, know perfectly well what is going on. We now have not only numerous reports and proofs of torture, but also a series of legal memos (which have been uncovered) that authorize torture. We also now have a memo authorizing prisoners taken in Iraq to be transported to other countries -- where, the writers could hardly help knowing, they would be tortured. Bush himself has said he doesn’t want to know to what countries prisoners have been taken -- as if he doesn’t in fact know, and as if either true or feigned lack of knowledge could be anything other than an effort to create what is called deniability, feigned deniability. Bush himself has also highly rewarded the authors of memos authorizing torture. One he made a federal appeals court judge -- man, I hope never to have a case in front of him -- a second he nominated for a federal appeals judgeship (the nomination is being filibustered), and a third he has nominated for Attorney General. Other authors of torture memos or "transportation" memos have been rewarded by two of the nation’s leading private academic institutions: one has been welcomed back to a professorship at the University of California Law School at Berkeley, and the other has been hired by the Harvard Law school (a hiring which will be the subject of a separate blog).

At this point in time, then, and regardless of the Executive’s expected denials of the truth, it is impossible to believe that the use of torture, where it is believed desirable, is not the official state policy of the United States acting through its Executive Branch. That there is a Congressional law against torture has become quite irrelevant. Harvard Law School thinks of Felix Frankfurter as a saint, and something the sainted Felix once said -- in a reapportionment case, I think -- is applicable here: the law is not what is written down. It is, rather, what is actually done. Here torture is what is actually done. It has become official state policy via the actions and knowledge of the Executive Branch. Torture now is, in the words of the old civil rights cases, state action.

Of course, we have lots of committees and commissions that supposedly have or are looking into the torture. Playing the Washington game, they invariably come back saying that torture was only the horrible action of low level privates or corporals or maybe even a sergeant or two. Again playing the Washington game, they speak of various "offices" having made mistakes, so as not to explicitly point the finger at the persons in charge of those offices (like Rumsfeld, who is in charge of the Office of the Secretary of Defense). This is all crapola. Where it was thought possibly useful, torture was allowed -- for all we know, encouraged -- by Bush, Rumsfeld, Wolfowitz, Cambone, et. al. because the Administration was desperate to get information about Al Qaeda and about the insurgency in Iraq. Being desperate, these officials did bad things -- which is what bad human beings like them usually do. And doing bad things, they have continuously got us ever deeper into trouble. (Or, as has in part been asked here before, are our war in Iraq and our torturing of prisoners really great successes and the problem is that the rest of us just don’t know it?)

The famous Youngstown Sheet & Tube case was decided in the middle of the major crisis of the Korean war. The Supreme Court, in one of the very few examples of a court standing up to the Executive in the middle of a war, struck down the President’s seizure of the steel mills despite Truman’s worry over whether there would be enough steel for defense purposes. In a famous, still cited and quoted concurring opinion, Justice Jackson said, "With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations." The American Executive today is under neither the law nor parliament. Ergo torture. Ergo other very bad things too. This stuff will not stop, I would venture, until bad people like Bush and his crowd are thrown out -- impeachment and conviction for a state policy of gross violation of the domestic law against torture would not be a bad idea. But, regardless of the forlorn hope of an impeachment, it is really hard to think that torture is not state policy these days. Like segregation in the South in at least the first 65 years of the 20th Century, what is done, not what is merely written in some statute book, is the true policy of the state. And this country supposedly being a democracy, where the people supposedly rule, the rest of us are responsible for this policy unless one voted against Bush or protests or acts against his policy in some way. It is a travesty to have blamed Germans and Japanese for what their governments did in World War II, but not to blame ourselves now. In fact, we are more blameworthy because we do not yet live in a dictatorship where action must be restrained lest fascists come for you in the middle of the night and you are never heard of again.*