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Featured stories in this issue...
The Assassination of Martin Luther King, Jr.: A Different Verdict
In December, 1999, a jury in Memphis, Tennessee, concluded that
Martin Luther King, Jr. was assassinated by a conspiracy involving
Loyd Jowers and "others, including governmental agencies."
Farewell to the Fifth Horseman of the Apocalypse
History will judge him, but so must we. Democracy requires
accountability or it isn't democracy.
Justice After Bush: Prosecuting An Outlaw Administration
Yes, democracy requires accountability or it isn't democracy. Open
criminality is a cancer on democracy. It implicates all who know of
the conduct and fail to act. Such complicity presents a practical
crisis because a government that is allowed to torture will inevitably
transgress other legal limits. But it also presents an existential
political crisis. Many democracies have simply collapsed as the people
permitted their leaders to abandon the rule of law in the face of
alleged external threats.
U.S. Autism Epidemic Probably Caused by Environmental Factors
Across the nation, the numbers of autistic children have increased
dramatically over the past 15 years. "It's time to start looking for
the environmental culprits responsible for the remarkable increase in
the rate of autism...," says a leading scientist.
We're Not Doomed, but We're in Danger
The first and most important impact of global warming will be an
acute and permanent crisis of food supply. In that situation, wars
become probable. "Countries that are unable to feed themselves are
unlikely to be reasonable about it.... There is a probability of wars,
even nuclear wars, if the temperature rises more than two to three
degrees Celsius [4 to 5 degees Fahrenheit]."
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From: Christian Century, Mar. 15, 2000
[Printer-friendly version]
THE KING ASSASSINATION: AFTER THREE DECADES, ANOTHER VERDICT
By James W. Douglass
[A PDF of this article is available (1.3 Mbytes). Other useful
materials on the King assassination include a longer article by James
W. Douglass, a timeline of events, and a transcript of a talk
given in 2003 by William Pepper, who was the King family's lawyer in
their 1999 civil suit against Lloyd Jowers.]
In December [1999] a jury in Memphis, Tennessee, concluded that Martin
Luther King Jr. was assassinated by a conspiracy involving Loyd Jowers
and "others, including governmental agencies." [A full transcript of
the trial is available online.] Almost 32 years after King's murder
at the Lorraine Motel in Memphis on April 4, 1968, a court extended
the circle of responsibility for the assassination beyond the now
deceased James Earl Ray, the man sentenced for the crime.
Explaining how this verdict came about requires some background. In
1969 Ray pleaded guilty to the murder. His lawyer, Percy Foreman, had
threatened to throw the case if Ray let it go to trial. Before
receiving his 99-year sentence, Ray answered Judge Preston Battle's
question as to his guilt with a qualified, "Yes, legally, yes." He
told the judge he disagreed with the government officials who denied
there was a conspiracy. Three days later, Ray fired Foreman and asked
Judge Battle for a new trial. For the rest of his life Ray continued
to seek a new trial, maintaining that he had been set up in the King
murder by a shadowy gunrunner named Raul. Ray died in prison in 1998.
William Pepper, who began investigating the King assassination in
1978, became convinced that Ray was innocent. In 1995 Pepper published
Orders to Kill: The Truth Behind the Murder of Martin Luther King, a
labyrinthine investigative work that detailed the tangle of evidence
he had found pointing to a murder conspiracy that included government
officials. The King family contacted Pepper in 1997 and asked to see
his evidence. Convinced by it, the Kings supported Ray's request for a
trial.
[Read a transcript of a long talk given by William Pepper in 2003.]
After Ray's death, the King family asked President Clinton to set up a
commission similar to South Africa's Truth and Reconciliation
Commission that would offer legal immunity in exchange for truth
telling. When their proposal was turned into a "limited reexamination"
of the murder by the Justice Department, the Kings tried another route
to get at the evidence: they filed a wrongful death lawsuit against
Jowers, who said he had been part of a conspiracy to kill King.
The complaint actually reads King v. Jowers and Other Unknown Co-
Conspirators. As soon became evident at the trial last fall, the real
defendants were the anonymous coconspirators who stood in the shadows
behind Jowers, the former owner of a Memphis bar and grill. The King
family, represented by Pepper, was in effect charging U.S.
intelligence agencies--particularly the FBI and army intelligence--
with organizing, subcontracting and covering up the assassination.
Needless to say, this was a difficult case to make.
Many qualifiers have been attached to the verdict in King v. Jowers.
It came not in criminal court but in civil court, where the standards
of evidence are much lower than in criminal court. (For example, the
plaintiffs used unsworn testimony made on audiotapes and videotapes.)
Furthermore, the plaintiffs (the King family) and the defendant
(Jowers) agreed ahead of time on much of the evidence.
But these observations are not entirely to the point. Because of the
government's "sovereign immunity," it is not possible to put a U.S.
intelligence agency in the dock of a U.S. criminal court. Such a step
would require authorization by the federal government which is not
likely to indict itself. The civil case in Memphis laid out the
strange story of the murder, and in the end 12 jurors (six black and
six white) said: Guilty as charged--King was murdered by an intricate
plot that included government agencies.
Jowers, 73, attended only the first three days of the trial. He was
excused by the judge because of illness. He said through his attorney,
Lewis Garrison, that he would plead the Fifth Amendment if subpoenaed.
However, in 1993 Jowers--against Garrison's advice and prompted by
Pepper's investigation--appeared on Prime Time Live with Sam Donaldson
and said he had been asked to help in the murder of King and had been
told there would be a decoy in the plot. He was also told that the
police "wouldn't be there that night."
In that interview, the transcript of which was read to the jury in the
Memphis courtroom, Jowers said the man who asked him to help in the
murder was a Mafia-connected produce dealer named Frank Liberto.
Liberto, now deceased, had a courier deliver $100,000 for Jowers to
hold at his restaurant, Jim's Grill, the back door of which opened
onto the dense bushes across from the Lorraine Motel. Jowers said he
was visited the day before the murder by a man named Raul, who brought
a rifle in a box.
The jury in Memphis also heard a tape recording of a two-hour-long
confession Jowers made at a fall 1998 meeting with Martin Luther
King's son Dexter and former UN ambassador Andrew Young. On the tape
Jowers says that the meetings to plan the assassination occurred at
Jim's Grill. He said the planners included undercover Memphis Police
Department officer Marrell McCollough (who now works for the Central
Intelligence Agency), MPD Lieutenant Earl Clark (who died in 1987), a
third police officer, and two men Jowers did not know but thought were
federal agents.
Young, who witnessed the assassination, can be heard on the tape
identifying McCollough as the man kneeling besides King's body on the
balcony in a famous photograph taken right after the shooting.
According to witness Colby Vernon Smith, McCollough had infiltrated a
Memphis community organizing group, the Invaders, which was working
with the Southern Christian Leadership Conference. In his trial
testimony Young said the MPD intelligence agent was "the guy who ran
up [the balcony stairs] with us to see Martin."
JOWERS SAYS on the tape that right after the shot was fired he
received a smoking rifle at the rear door of Jim's Grill from Clark.
He broke the rifle down into two pieces and wrapped it in a
tablecloth. Raul picked it up the next day. Jowers said he didn't
actually see who fired the shot that killed King, but thought it was
Clark, the MPD's best marksman. Young testified that his impression
from the 1998 meeting was that the increasingly frail Jowers "wanted
to get right with God, wanted to confess it and be free of it." Jowers
denied, however, that he knew the plot's purpose was to kill King--a
claim which seemed implausible to Dexter King and Young. Jowers has
continued to fear jail, and he had directed Garrison to defend him on
the grounds that he didn't know the target of the plot was King. But
his interview with Donaldson suggests he was not naive on this point.
Jowers's story opened the door to testimony on other areas:
Background to the assassination: James Lawson, King's friend and an
organizer with SCLC, testified that King's stands on Vietnam and the
Poor People's Campaign had created enemies in Washington. He said
King's speech at New York's Riverside Church on April 4, 1967, which
condemned the Vietnam war and identified the U.S. government as "the
greatest purveyor of violence in the world today," provoked intense
hostility in the White House and FBI.
Hatred and fear of King deepened, Lawson said, in response to his plan
to hold the Poor People's Campaign in Washington, D.C. King wanted to
shut down the nation's capital in the spring of 1968 through massive
civil disobedience until the government agreed to abolish poverty.
King saw the Memphis sanitation workers' strike as the beginning of a
nonviolent revolution that would redistribute income. "I have no
doubt," Lawson said, "that the government viewed all this seriously
enough to plan his assassination."
Evidence of a local conspiracy: On the night of April 3, 1968, Floyd
E. Newsum, a black firefighter and civil rights activist, heard King's
"I've Been to the Mountain Top" speech at the Mason Temple in Memphis.
On his return home, Newsum returned a phone call from his lieutenant
and was told he had been temporarily transferred, effective April 4,
from Fire Station 2, located across the street from the Lorraine
Motel, to Fire Station 31. Newsum testified: "I was not needed at the
new station. I was needed at my old station. I was eventually told I
was transferred by orders of the Police Department."
The only other black firefighter at Fire Station 2, Norvell E.
Wallace, testified that he too received orders on the night of April 3
for a temporary transfer to a fire station far removed from the
Lorraine Motel. The officer told Wallace vaguely that he had been
threatened.
"I guess it was because I was putting out fires,'" Wallace told the
jury with a smile. "I have never to this day been given a satisfactory
explanation."
On the afternoon of April 4, a black Memphis Police Department
detective, Ed Redditt, was removed from his surveillance post at Fire
Station 2. Redditt had been watching King and his party across the
street. Redditt testified that MPD Intelligence Officer Eli Arkin came
to Fire Station 2 later that afternoon to take him to Central
Headquarters. There he was brought to Police and Fire Director Frank
Holloman, a retired FBI agent. During his 25 years in the FBI,
Holloman had been head of the Memphis field office (1959-64) as well
as J. Edgar Hoover's appointments secretary. Holloman told Redditt
that a secret service agent had just flown in from Washington with
information about a threat on Redditt's life. He ordered him to go
home.
"I objected," Redditt said. "Director Holloman told Arkin to take me
home." When they arrived at Redditt's house, the car radio announced
that King had just been assassinated at the Lorraine Motel. Redditt
testified that nothing further was ever said to him by the authorities
about the threat on his life.
Former MPD Captain Jerry Williams followed Redditt to the witness
stand. Williams had been responsible for forming a security unit of
black officers whenever King came to Memphis. For King's April 3
arrival, however, Williams was not asked to form that bodyguard. He
was told that someone in King's entourage had asked for no security.
Philip Melanson, author of The Martin Luther King Assassination
(1991), described his investigation into the April 4 pullback of four
tactical police units that had been patrolling the immediate vicinity
of the Lorraine Motel. When Melanson interviewed MPD Inspector Sam
Evans (now deceased) on why the units were pulled back five blocks on
the morning of April 4, in effect making an assassin's escape much
easier, Evans said that a local pastor connected with King's party had
ordered it. The pastor, however, denied this to Melanson.
OLIVIA CATLING lived a block away from the Lortraine on Mulberry
Street. Carling had planned to walk down the street the evening of
April 4 in the hope of catching a glimpse of King at the motel. She
testified that when she heard the shot a little after six o'clock, she
said, "Oh, my God, Dr. King!" She ran with her two children and a
neighbor's child to the corner of Mulberry and Huling streets, just
north of the Lorraine. She saw a man in a checkered shirt come running
out of the alley beside a building across from the Lorraine. The man
jumped into a green 1965 Chevrolet just as a police car drove up
behind him. He gunned the Chevrolet around the corner and up Mulberry
past Catling's house, moving her to exclaim, "It's gonna take us six
months to pay for the rubber!" The police, she said, ignored the man
and blocked off a street, leaving his car free to go the opposite way.
I visited Catling in her home, and she told me the man she had seen
running was not James Earl Ray. "I will go into my grave saying that
was not Ray, because the gentleman I saw was heavier than Ray."
"The police," she told me, "asked not one neighbor [around the
Lorraine], 'What did you see?' Thirty-one years went by. Nobody came
and asked one question. I often thought about that. I even had
nightmares over that, because they never said anything. How did they
let him get away?"
Catling also told me that from her vantage point on the corner of
Mulberry and Huling she could see a fireman standing alone across from
the motel when the police drove up. She heard him say to the police,
"The shot came from that clump of bushes," indicating the heavily
overgrown brushy area facing the Lorraine and adjacent to Fire Station
2.
The crime scene: A 1993 affidavit from former SCLC official James
Orange was read into the record. Orange said that on April 4, "James
Bevel and I were driven around by Marrell McCollough, a person who at
that time we knew to be a member of the Invaders, a local community
organizing group, and who we subsequently learned was an undercover
agent for the Memphis Police Department and who now works for the
Central Intelligence Agency.... [After the shot, when Orange saw Dr.
King's leg dangling over the balcony], I looked back and saw the
smoke. It couldn't have been more than five to ten seconds. The smoke
came out of the brush area on the opposite side of the street from the
Lorraine Motel. I saw it rise up from the bushes over there. From that
day to this time I have never had any doubt that the fatal shot, the
bullet which ended Dr. King's life, was fired by a sniper concealed in
the brush area behind the derelict buildings.
"I also remember then turning my attention back to the balcony and
seeing Marrell McCollough up on the balcony kneeling over Dr. King,
looking as though he was checking Dr. King for life signs.
"I also noticed, quite early the next morning around 8 or 9 o'clock,
that all of the bushes and brush on the hill were cut down and cleaned
up. It was as though the entire area of the bushes from behind the
rooming house had been cleared ....
"I will always remember the puff of white smoke and the cut brush and
having never been given a satisfactory explanation.
"When I tried to tell the police at the scene as best I saw they told
me to be quiet and to get out of the way.
"I was never interviewed or asked what I saw by any law enforcement
authority in all of the time since 1968."
Also read into the record were depositions made by Solomon Jones to
the FBI and to the Memphis police. Jones was King's chauffeur in
Memphis. The FBI document, dated April 13, 1968, says that after King
was shot, when Jones looked across Mulberry Street into the brushy
area, "he got a quick glimpse of a person with his back toward
Mulberry Street.... This person was moving rather fast, and he recalls
that he believed he was wearing some sort of light-colored jacket with
some sort of a hood or parka." In his 11:30 P.M., April 4, 1968,
police interview, Jones provides the same basic information concerning
a person leaving the brushy area hurriedly.
Maynard Stiles, who in 1968 was a senior official in the Memphis
Sanitation Department, confirmed in his testimony that the bushes near
the rooming house were cut down. At about 7:00 A.M. on April 5, Stiles
told the jury, he received a call from MPD Inspector Sam Evans
"requiring assistance clearing brush and debris from a vacant lot near
the site of the assassination. I called another superintendent of
sanitation. He assembled a crew, went to the site, and cleaned up the
site in a slow, methodical, meticulous manner under the direction of
the police department." Stiles identified the site as an area
overgrown with brush and bushes across from the Lorraine Motel.
Within hours of King's assassination, the crime scene that witnesses
were identifying to the Memphis police as a cover for the shooter had
been sanitized by orders of the police.
The rifle: The rifle that government authorities have maintained is
the murder weapon was found the night of April 4 in the Main Street
doorway of the Canipe Amusement Company, one block from the Lorraine.
It was dropped accidentally, they say, by Ray just before he jumped in
his white Mustang and drove to Atlanta. The 30.06 Remington Gamemaster
rifle was held up at the witness stand by Criminal Court Judge Joe
Brown, who had presided over two years of hearings into the evidence
concerning the rifle. "It is my opinion," he told the jury, "that this
is not the murder weapon."
"Sixty-seven percent of the bullets from my tests," Brown said, "did
not match the Ray rifle." He added that the unfired bullets found
wrapped with it in a blanket were metallurgically different from the
bullet taken from King's body, and therefore were from a different lot
of ammunition. And because the rifle's scope had not been sited, Brown
said, "this weapon literally could not have hit the broad side of a
barn."
Circuit Court Judge Arthur Hanes Jr. of Birmingham, Alabama, testified
that he had been Ray's attorney in 1968 (before Foreman) and had
interviewed Guy Canipe, owner of the Canipe Amusement Company and a
witness to the dropped bundle that included the rifle and unfired
bullets. That dropped bundle was crucial to the case against Ray.
Hanes said that Canipe (now deceased) provided "terrific evidence":
"He said that the package was dropped by a man heading south on Main
Street about ten minutes before the shot was fired."
When I spoke with Judge Hanes after the trial about the startling
evidence he had received from Canipe, he commented, "That's what I've
been saying for 30 years."
The mysterious Raul: In a 1995 deposition by Ray that was read to the
jury, Ray told of meeting a man named Raul in Montreal in the summer
of 1967, three months after Ray had escaped from a Missouri prison.
According to Ray, Raul guided Ray's movements, gave him money for the
Mustang car and the rifle, and used both to set him up in Memphis.
ANDREW YOUNG and Dexter King described their meeting with Jowers and
Pepper at which Pepper had shown Jowers a spread of photographs, and
Jowers picked out one as the per son named Raul who brought him the
rifle to hold at Jim's Grill. Pepper displayed the same spread of
photos in court, and Young and King pointed out the photo Jowers had
identified as Raul. (Private investigator John Billings said in
separate testimony that this picture was a passport photograph from
1961, when Raul had immigrated from Portugal to the U.S.)
The additional witnesses who identified the photo as Raul's included:
British merchant seaman Sidney Carthew, who in a videotaped deposition
from England said he had met ! Raul (who offered to sell him guns) and
a man he thinks was Ray (who wanted to be smuggled onto his ship) in
Montreal in the summer of 1967; Glenda and Roy Grabow, who recognized
Raul as a gunrunner they knew in Houston in the '60s and '70s and who
told Glenda in a rage that he had killed Martin Luther King; Royce
Wilburn, Glenda's brother, who also knew Raul in Houston; and British
television producer Jack Saltman, who had obtained the passport photo
and showed it to Ray in prison, who identified it as the photo of the
person who had guided him.
Saltman and Pepper, working on independent investigations, located
Raul in 1995. He was living quietly with his family in the
northeastern U.S. It was there in 1997 that journalist Barbara Reis of
the Lisbon Publico, working on a story about Raul, spoke with a member
of his family. Reis testified that she had spoken in Portuguese to a
woman in Raul's family who, after first denying any connection to
Ray's Raul, said that "they" had visited them. "Who?" Reis asked. "The
government," said the woman. She said government agents had visited
them three times over a three-year period. The government, she said,
was watching over them and monitoring their phone calls. The woman
took comfort and satisfaction in the fact that her family (so she
believed) was being protected by the government.
A broader conspiracy: Carthel Weeden, captain of Fire Station 2 in
1968, testified that he was on duty the morning of April 4 when two
U.S. Army officers approached him. The officers said they wanted a
lookout for the Lorraine Motel. Weeden said they carried briefcases
and "indicated they had cameras." Weeden showed the officers the roof
of the fire station. He left them at the edge of its northeast corner
behind a parapet wall. From there the officers had a bird's-eye view
of Dr. King's balcony doorway and could also look down on the brushy
area adjacent to the fire station.
Former CIA operative Jack Terrell testified by videotape that his best
friend, J. D. Hill, had confessed to him shortly before Hill's death
that he had been a member of an army sniper team in Memphis assigned
to shoot "an unknown target" on April 4. After training for a
triangular shooting, the snipers were taking up positions in a water-
tower and two buildings in Memphis when their mission was suddenly
canceled. Hill said he realized the next day that the team must have
been part of a contingency plan to kill King if another shooter
failed.
Douglas Valentine said that while researching his book The Phoenix
Program (1990), on the CIA's notorious counterintelligence program
against Vietnamese villagers, he talked with veterans in military
intelligence who had been redeployed from Vietnam to the domestic
front. They told him that in 1968 the army's 111th Military
Intelligence Group kept Martin Luther King under 24-hour-a-day
surveillance. Its agents were in Memphis April 4. Valentine wrote in
The Phoenix Program that they "reportedly watched and took photos
while King's assassin moved into position, took aim, fired and walked
away."
Cover-up: Walter Fauntroy, Dr. King's colleague and a 20-year member
of Congress, chaired the subcommittee of the 1976-78 House Select
Committee on Assassinations that investigated King's assassination.
Fauntroy testified in Memphis that in the course of the HSCA
investigation "it became apparent that we were dealing with very
sophisticated forces." He discovered electronic bugs on his phones and
TV set. When Richard Sprague, HSCA's first chief investigator, said he
would make available all CIA and FBI records, he became a focus of
controversy and media attacks. Sprague was forced to resign. His
successor made no demands on U.S. intelligence agencies.
Such pressures contributed to the committee's ending its
investigation, in Fauntroy's words, "without having looked at all the
evidence." Its formal conclusion was that Ray assassinated King, that
he probably had help, and that the government was not involved.
WHEN I interviewed Fauntroy in a van on his way back to the Memphis
Airport, I asked about the implications of his statements in an April
4, 1997, Atlanta Constitution article. The article said Fauntroy now
believed "Ray did not fire the shot that killed King and was part of a
larger conspiracy that possibly involved federal law enforcement
agencies," and added: "Fauntroy said he kept silent about his
suspicions because of fear for himself and his family."
Fauntroy told me that when he left Congress in 1991 he had the
opportunity to read through his files on the King assassination,
including raw materials that he'd never seen before. Among them was
information from J. Edgar Hoover's logs. There he learned that in the
three weeks before King's murder the FBI chief held a series of
meetings with "persons involved with the CIA and military intelligence
in the Phoenix operation in Southeast Asia." Fauntroy also discovered
there had been Green Berets and military intelligence agents in
Memphis when King was killed. "What were they doing there?" he asked.
When Fauntroy had talked about his decision to write a book about what
he'd "uncovered since the assassination committee closed down," he was
promptly investigated and charged by the Justice Department with
having violated his financial reports as a member of Congress. His
lawyer told him he could not understand why the Justice Department
would bring up a charge on the technicality of one misdated check.
Fauntroy said he interpreted the Justice Department's action to mean:
"Look, we'll get you on something if you continue this way.... I just
thought: I'll tell them I won't go and finish the book, because it's
surely not worth it."
In an interview after the trial, former MPD detective Ed Redditt told
me his testimony before the HSCA had been a "total farce." Redditt was
subpoenaed by the committee to testify about being removed from his
surveillance post across from the Lorraine Motel two hours before the
murder. Redditt said he was grilled by the committee for eight
straight hours in a closed executive session. His public testimony the
next day "was a set-up." When he arrived for the hearing, he was
ushered into a room and shown a book with his testimony's questions
and answers already set in print.
"So in essence," said Redditt, "what they were saying was: 'This is
what you're going to answer to, and this is how you're going to
answer.' It was all made up--all designed, questions and answers, what
to say and what not to say. A total farce."
Coretta King explained her family's purpose in pursuing the lawsuit
against Jowers: "This is not about money. We want the truth documented
in a court of law. My family and I have wanted to see and know the
truth, and to heal the nation."
Dexter King, the plaintiff's final witness, said the trial was about
why his father had been killed: "The same thing is still happening. It
can happen to anybody.
It the state doesn't like what you're saying, you will be dealt with--
not as in China overtly but covertly."
To the question, "What do we do about this?" he answered, "We are
looking to get the truth out. We have never been interested in a
criminal prosecution. Nonviolent reconciliation works. If we're saying
we're willing to forgive, why can't others?" When pressed by Pepper to
name a specific amount of damages for the murder of his father, Dexter
King said, "One hundred dollars."
The jury returned with a verdict after two and one-half hours. Judge
James E. Swearengen of Shelby County Circuit Court, a gentle African-
American man in his last few days before retirement, read the verdict
aloud. The courtroom was crowded with spectators, almost all black.
"In answer to the question, 'Did Loyd Jowers participate in a
conspiracy to do harm to Dr. Martin Luther King?' your answer is
'Yes.'" The man on my left leaned forward and whispered softly, "Thank
you, Jesus."
The judge continued: "'Do you also find that others, including
governmental agencies, were parties to this conspiracy as alleged by
the defendant?' Your answer to that one is also 'Yes."' An even more
heartfelt whisper: "Thank you, Jesus!"
David Morphy, the only juror to grant an interview, said later: "We
can look back on it and say that we did change history. But that's not
why we did it. It was because there was an overwhelming amount of
evidence and just too many odd coincidences.
"Everything from the police department being pulled back, to the death
threat on Redditt, to the two black firefighters being pulled off, to
the military people going up on top of the fire station, even to them
going back to that point and cutting down the trees. Who in their
right mind would go and destroy a crime scene like that the morning
after? It was just very, very odd."
I drove the few blocks to the house on Mulberry Street, one block
north of the Lorraine Motel (now the National Civil Rights Museum).
When I rapped loudly on Olivia Catling's security door, she was
several minutes in coming. She said she'd had the flu. I told her the
jury's verdict, and she smiled. "So I can sleep now. For years I could
still hear that shot. After 31 years, my mind is at ease. So I can
sleep now, knowing that some kind of peace has been brought to the
King family. And that's the best part about it."
==============
James w. Douglass's books include The Nonviolent Coming of God
(Orbis, 2006), which received the Pax Christi Book Award and JFK and
the Unspeakable: Why He Died and Why It Matters (Orbis, 2008).
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From: Rachel's Democracy & Health News #994, Jan. 15, 2009
[Printer-friendly version]
FAREWELL TO THE FIFTH HORSEMAN OF THE APOCALYPSE
Truly a man who could not possibly be misunderestimated.
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From: Harper's Magazine, Dec. 1, 2008
[Printer-friendly version]
JUSTICE AFTER BUSH: PROSECUTING AN OUTLAW ADMINISTRATION
By Scott Horton
I. The Crimes
Americans may wish to avoid what is necessary. We may believe that
concerns about presidential lawbreaking are naive. That all presidents
commit crimes. We may pretend that George W. Bush and his senior
officers could not have committed crimes significantly worse than
those of their predecessors. We may fear what it would mean to
acknowledge such crimes, much less to punish them. But avoiding this
task, simply "moving on," is not possible.
This administration did more than commit crimes. It waged war against
the law itself. It transformed the Justice Department into a vehicle
for voter suppression, and it also summarily dismissed the U.S.
attorneys who attempted to investigate its wrongdoing. It issued
wartime contracts to substandard vendors with inside connections, and
it also defunded efforts to police their performance. It spied on
church groups and political protesters, and it also introduced a
sweeping surveillance program that was so clearly illegal that
virtually the entire senior echelon of the Justice Department
threatened to (but did not in fact) tender their resignations over it.
It waged an illegal and disastrous war, and it did so by falsely
representing to Congress and to the American public nearly every piece
of intelligence it had on Iraq. And through it all, as if to
underscore its contempt for any authority but its own, the
administration issued more than a hundred carefully crafted "signing
statements" that raised pervasive doubt about whether the president
would even accede to bills that he himself had signed into law.
No prior administration has been so systematically or so brazenly
lawless. Yet it is no simple matter to prosecute a former president or
his senior officers. There is no precedent for such a prosecution, and
even if there was, the very breadth and audacity of the
administration's activities would make the process so complex as to
defy systems of justice far less fragmented than our own. But that
only means choices must be made. Indeed, in weighing the enormity of
the administration's transgressions against the realistic prospect of
justice, it is possible to determine not only the crime that calls
most clearly for prosecution but also the crime that is most likely to
be successfully prosecuted. In both cases, that crime is torture.
There can be no doubt that torture is illegal. There is no wartime
exception for torture, nor is there an exception for prisoners or
"enemy combatants," nor is there an exception for "enhanced" methods.
The authors of the Constitution forbade "cruel and unusual
punishment," the details of that prohibition were made explicit in the
Geneva Conventions ("No physical or mental torture, nor any other form
of coercion, may be inflicted on prisoners of war to secure from them
information of any kind whatever"), and that definition has in turn
become subject to U.S. enforcement through the Uniform Code of
Military Justice, the U.S. Criminal Code, and several acts of
Congress.[1]
Nor can there be any doubt that this administration conspired to
commit torture: Waterboarding. Hypothermia. Psychotropic drugs. Sexual
humiliation. Secretly transporting prisoners to other countries that
use even more brutal techniques. The administration has carefully
documented these actions and, in many cases, proudly proclaimed them.
The written guidelines for interrogations at Guantanamo Bay, for
instance, describe several techniques for degrading and physically
debilitating prisoners, including the "forceful removal of detainees'
clothing" and the use of "stress positions." And in a 2006 radio
interview, Dick Cheney said simply that the use of waterboarding to
obtain intelligence was a "no-brainer."[2]
Finally, there can be no doubt that the administration was aware of
the potential criminality of these acts. In January 2002, White House
lawyers began generating a series of memos outlining the
administration's motivation for torturing. They claimed that "the war
against terrorism is a new kind of war" requiring an enhanced "ability
to quickly obtain information from captured terrorists" and that "this
new paradigm renders obsolete Geneva's strict limitations on
questioning of enemy prisoners." The legal term for such contemplation
is mens rea, or "guilty mind," and it is an important consideration in
criminal trials. Which is perhaps the reason that John Ashcroft --
when he, Dick Che ney, Colin Powell, Condoleezza Rice, Donald
Rumsfeld, and George Tenet gathered at the White House in 2002 to
formally approve the application of specific torture methods -- asked
the assembled, "Why are we talking about this in the White House?
History will not judge this kindly."[3]
II. The Consequences of Inaction
The accuracy of Ashcroft's prediction remains to be determined. The
United States does, in fact, have a long history of prosecuting
torturers, but the punishments have varied considerably. In 1902, U.S.
Army Captain Edwin Glenn confessed to and was court- martialed for
using "the water cure" on Filipinos as part of the U.S. prosecution of
the Spanish-American War. He was required to pay a fifty-dollar fine.
And in 1926, when the Mississippi Supreme Court declared waterboarding
to be torture and overturned the conviction of a man who had confessed
to another crime under its application, the police who had elicited
the confession went entirely unpunished. In other circumstances,
though, the consequences have been more significant. In 1983, an east
Texas sheriff named James Parker was convicted of waterboarding six
men in order to coerce confessions. He was sentenced to ten years in
federal prison. And when American prosecutors convicted Japanese
officials at the end of World War II of war crimes that included
waterboarding, the sentence sought, and obtained in some of the cases,
was death. Which is not to say that administration officials will or
should face similarly dire sanction. But such consequences are a
measure of the gravity of the crime.
Waterboarding is far from the worst that detainees have suffered under
U.S. supervision. Its use is especially worthy of note, however,
because it is universally understood that 1) the administration
authorized waterboarding, and 2) waterboarding is a serious crime.[4]
Open criminality is a cancer on democracy. It implicates all who know
of the conduct and fail to act. Such compliance presents a practical
crisis, in that a government that is allowed to torture will
inevitably transgress other legal limits. But it also presents an
existential political crisis. Many democracies have simply collapsed
as the people permitted their leaders to abandon the rule of law in
the face of alleged external threats. The turn to torture was rapid,
for instance, in Argentina at the time of the Dirty War and in Chile
after the American-directed coup against Salvador Allende. In both
cases, that turn had little to do with a perceived benefit from the
use of torture in interrogation. To the contrary, the very criminality
of the act had a talismanic significance. It asserted the primacy of
the will of the torturer. It made the claim, for all to accept or
reject, that the ruler was the law. Such a claim is, of course,
intolerable to democracy, which presupposes, as Thomas Paine wrote,
that "the law ought to be King; and there ought to be no other."
Reasserting the rule of law is no simple matter. A new administration
may -- or may not -- bring an end to open torture in the United
States, but it will not bring an end to our knowledge and acceptance
of what has already taken place. If the people wish to maintain
sovereignty, they must also reclaim responsibility for the actions
taken in their name. As of yet, they have not. Pursuing the Bush
Administration for crimes long known to the public may amount to a
kind of hypocrisy, but it is a necessary hypocrisy. The alternative,
simply doing nothing, not only ratifies torture; it ratifies the
failure of the people to control the actions of their government.[5]
III. Possible Methods of Sanction
Torture is a war crime, and war crimes present an unusual legal
challenge. They can be prosecuted domestically, like any other crime.
But because they are war crimes, they also are subject to enforcement
by all nations, under a well-established principle of universal
jurisdiction. Making matters more complex, such crimes can be
prosecuted not only in standing courts here or abroad but also in
domestic or international ad hoc courts -- like those convened for the
Nuremberg trials -- designed to deal with specific political concerns.
Various combinations are suited to different situations:
International Criminal Tribunal
In recent years, nations have joined together on an ad hoc basis,
often with U.S. support or under the auspices of the United Nations,
to prosecute military and political figures from Cambodia, Rwanda,
West Africa, and the former Yugoslavia. Many of these tribunals are
still in progress and thus far have achieved mixed results. But they
have by and large followed a predictable pattern. Rather than
attempting to prosecute all potential war criminals, they have instead
focused on those in positions of authority whose action or inaction
had broad consequences. And they have shown a particular concern for
offenses committed systematically against persons outside of combat,
who in many cases have been disarmed and taken prisoner.
The precedent for all of these tribunals was the Nuremberg trials,
convened at the end of World War II. Under U.S. leadership, the Allies
prosecuted not only leaders of the Nazi Party but also industrialists,
doctors, and prison commandants. The Americans and Soviets also wanted
to prosecute the people who had created the legal framework for the
Nazi regime, but British and French leaders objected. Consequently,
the United States, acting on its own, convened a separate Nuremberg
tribunal to try lawyers, judges, and legal policymakers. In doing so,
it established the principle that policymakers who overrode the
mandatory prohibitions of international law against harming prisoners
in wartime could be prosecuted as war criminals, no matter how many
internal memos they had written to the contrary.
The International Criminal Court, headquartered in the Netherlands,
was created in 1998 to provide a permanent version of such a tribunal.
The ICC bears many traces of U.S. authorship, and indeed its
establishment, in one form or another, was urged by presidents from
Thomas Jefferson to Bill Clinton. But American conservatives, opposing
what they saw as a limitation on American sovereignty, have blocked
the U.S. from joining the 108 other nations that have signed the
Court's foundational treaty. And even the institution's strongest
advocates agree that, although the ICC is suited to prosecuting
political leaders in minor states, it was never intended as a check on
the great powers. In fact, the ICC's success depends upon its gaining
the support of those great powers.
As things stand it would be legally very difficult and politically
impossible for the ICC to indict American policymakers for war crimes,
and even more difficult for an ad hoc group of nations to do so.
Moreover, any such effort would probably provoke a public-opinion
backlash within the United States.
Foreign Courts
Most crimes are subject to sanction on the basis of territoriality --
that is, the crime is viewed as having occurred on the soil of one
particular state, and that state has the right to enforce its criminal
law by prosecuting the crime or not. War crimes, however, are not
subject to this territorial limitation. Any nation that has a
reasonable relationship to the crime can prosecute the alleged
criminal -- the state where the offense occurred, any of the warring
states, or a state whose nationals were harmed or mistreated.
Consequently, many other nations have standing, under international
law, to pursue war-crimes prosecutions against U.S. citizens.
The example of Augusto Pinochet shows how such an approach might
unfold. In 1998, the onetime dictator of Chile, then eighty-two, was
seized in Britain on a Spanish arrest warrant. He was charged with
several crimes stemming from his seventeen years in power -- including
torture, illegal detention, and forced disappearances -- and placed
under house arrest in a Surrey mansion while diplomats from all three
countries debated the next steps. After several months of complex
legal proceedings, the British determined that Pinochet was medically
unfit to stand trial and returned him to Chile, thus maintaining their
claim to jurisdiction without actually pursuing a prosecution. Even
this attenuated process would be difficult to replicate with an
American political figure, however. Most nations that have a record of
prosecuting war crimes are close allies of the United States and would
be justifiably concerned about the practicalities of maintaining
positive defense relations with the world's preeminent power.
Moreover, the United States -- like Chile -- almost certainly would
not extradite a former official for such purposes.
At present, however, one criminal prosecution is already pending. It
arises from the abduction in Italy, under the CIA's "extraordinary
rendition" program, of an Egyptian cleric named Hassan Mustafa Osama
Nasr. Twenty-six Americans -- including diplomats, intelligence
officers, and a military attache -- face criminal charges in absentia
in the case. For the Americans the abduction was a sensitive national-
security operation. But for the Italian criminal-justice authorities
it was simply the armed assault and kidnapping of a resident alien.
Even if, as widely expected, the case produces convictions, the
American operatives will not be extradited to Italy. They will,
however, have difficulties traveling outside the United States.
Even this mild form of sanction, however, fails to address the
domestic political problem. True justice cannot be compelled from
without. If the United States wishes to demonstrate to the world, and
to itself, that its abdication of human-rights principles was an
anomaly, it will have to do so under its own auspices.
Domestic Courts
Most violations of the laws of war are punished through a military
court system. Under the Uniform Code of Military Justice, which
provides the tools for enforcement of the laws of war in the United
States, civilians as well as uniformed service members may be
prosecuted, though such prosecutions are rare and raise significant
constitutional issues. Moreover, such systems are fine for punishing
errant soldiers, but they seldom function properly when the culpable
person is far up the chain of command. This is largely because
military justice is not concerned exclusively with justice; it is also
concerned with upholding command authority. There is little
likelihood, therefore, that policymakers would be prosecuted before a
court-martial.
Torture is forbidden by federal law as well.[6] Could a federal
prosecutor take it upon himself to enforce that law? Alberto Gonzales
expressed concern in a 2002 memo that a prosecutor might display
sufficient independence to do just that. But thus far none has. The
scandal surrounding the dismissal of nine U.S. attorneys in 2006 helps
explain why: the Bush Administration has maintained an unprecedentedly
tight rein on its prosecutors, acting harshly when they depart from
the prescribed political path. Indeed, so many high-level figures at
Justice were involved in creating the legal mechanism for torture that
the Justice Department has effectively disqualified itself as an
investigative vehicle, even under a new administration.
Another major obstacle to domestic prosecution will be pardons. The
exercise of a presidential pardon to protect war criminals would
violate international law and would not be respected outside the
territory of the United States. Under the Constitution, however,
Bush's pardon power is nonetheless nearly absolute. Those advocating a
pardon hope that it would put an end to questions about criminal
conduct, but historical experience suggests that a pardon might have
just the opposite effect. It would implicitly concede that serious
crimes were in fact committed; the public would not necessarily reject
a pardon, but it might well insist on full disclosure of what was
done; and the president's political party likely would pay a
significant price for all of this, as Republicans experienced in the
election following Gerald Ford's decision to pardon Richard Nixon.
Pardons would have another unintended effect. Under well-established
notions of international law, the fact that a state attempts to
immunize officeholders from prosecution (such as by the issuance of a
presidential pardon) would boomerang by actually conferring on other
states the jurisdiction to prosecute.
Commission of Inquiry
In recent decades, the commission of inquiry, often in the form of a
"truth and reconciliation commission," has established itself as the
preferred means of approaching politically sensitive issues such as
war crimes while avoiding the destabilization that might result from
direct prosecutions. In Argentina, Chile, East Timor, Peru, and South
Africa, newly elected leaders feared that the criminal prosecution of
their predecessors would wreck the fragile political consensus that
had been used to establish both peace and a legitimate democracy. A
commission of inquiry allowed these countries to move toward
accountability in a slow but deliberate way. In some cases, a bargain
was struck under which the truth about past misconduct was divulged in
exchange for a pardon, on the premise that establishing a record of
historical truth was more important to democracy than punishing
individual malefactors. In other cases, however, the commission's
fact-finding process gradually built a public consensus that
prosecutorial action was needed. In Peru and Chile, prosecutions
occurred even after comprehensive pardons had been granted, as the
courts relied on international-law concepts to disregard those
pardons.
These commissions have not always performed as their authors intended
them to. For instance, it was anticipated that the South African
commission would widely disseminate pardons in exchange for more
detailed accounts of homicides and abuse under apartheid. In the end,
however, very few such pardons were even sought, since many witnesses
simply counted on a sentiment of general amnesty to see them through.
Such commissions also shift the balance of historical memory, which
usually favors those who hold power, by ensuring that the accounts of
victims are carefully recorded. Often this occurs by taking the
victim's testimony in a public setting. In Argentina, Chile, and South
Africa, the commission process served one function especially well:
the public was educated about the wretched practices of the prior
regime, and demands for a clear separation from these practices --
often including the rehabilitation of victims and the punishment of
perpetrators -- changed the landscape of public opinion.
IV. A Two-part Solution
Given the political situation in the United States, it seems clear
that the last option is the best. Although "truth and reconciliation"
may strike many people as somehow too exotic a process for the United
States, investigative commissions in fact have a long history here
that includes the Warren Commission, which was established in 1963 to
investigate the assassination of John Kennedy, and the Kerner
Commission, which was established in 1967 to examine the causes of
race riots in the United States. Such investigations have had a mixed
record of success, but they are the best means available to the U.S.
political system for investigating issues that raise broad public
concern but cannot be satisfactorily delved into by such established
bodies as the FBI or a congressional oversight committee.
Investigative commissions can provide truth. They can establish an
important record. They can reaffirm important taboos. But they cannot
provide justice. For that they are simply a first step. The second
step, which I will discuss only briefly, is a formal prosecution, most
likely by an executive- appointed special prosecutor. In this model --
call it "commission plus special prosecutor" -- the commission would
find the facts, weigh them, and, if the facts warrant, make a formal
recommendation for the appointment of a prosecutor, identifying the
matters that necessitate further investigation. Even if the commission
were to determine that no prosecutable crimes had occurred -- and,
given the legal complexities of such an undertaking, such a finding is
possible -- it would perform the absolutely necessary function of
educating the public. If, on the other hand, the commission were to
determine that criminal investigation was appropriate, it already
would have created essential public support for such action.
>From what source would the commission draw its authority? The most
obvious place would be the executive branch itself. The next president
could appoint a commission of inquiry with the stroke of a pen, and
such a commission would have many strengths. It could be created
quickly; it would answer to one master; and, since it would be created
with the authority of the president, it could demand the cooperation
of government actors and access to classified documents. Gerald Ford,
for instance, created the Rockefeller Commission in 1975 to examine
allegations of domestic spying, and it put on record a series of
tawdry CIA operations and helped to impose several congressional
restraints on domestic action by the agency. The problem with
presidential commissions is that they can easily be accused of
covering up for previous administration[7] or, conversely, of seeking
"victor's justice."[8]
The alternative is a hybrid -- an executive-legislative commission
that would be created by an act of Congress but would draw also on the
authority of the president. This alternative typically involves an
elaborate process for the appointment of commissioners by both the
White House and the congressional leadership. The National Commission
on Terrorist Attacks Upon the United States, usually called the 9/11
Commission, is the most recent example of this approach. The hybrid
commission can be challenged on constitutional grounds as an intrusion
on executive prerogative, so its success still requires the
president's support and cooperation.[9]
In general, the presidential commission seems a smoother, less legally
problematic model, whereas the hybrid commission is cumbersome but
more likely to command broad public support and confidence from the
outset.
In either model, the commissioners themselves must have the right
measure of integrity and commitment. Are they willing to pursue their
questions to definitive answers, no matter who is embarrassed or
injured by the outcome? Do they place the interests of those who
appointed them ahead of their obligation to investigate the facts? A
well-constituted commission is neither partisan nor relenting. It
publishes the truth and leaves the prosecution to later actors.
V. Implementation
Many commissions failed to achieve positive ends because they were
poorly designed. History suggests that certain structural and legal
characteristics, combined with a careful definition of scope, can lead
to a successful outcome.
Composition
The first action of any administration whose conduct comes under
scrutiny is to claim that the process is politically motivated. The
first step in addressing those claims is to separate the process of
initial investigation from the process of prosecution, as discussed
above.[10]
But the commission itself also can be structured in such a way as to
mitigate partisan concerns. This will require real wisdom, however.
Simple "balancing" won't do the job.
The 9/11 Commission, for instance, was crafted as a "bipartisan"
institution, with co-equal Democratic and Republican chairs, on the
premise that each would counteract the partisan proclivities of the
other. In the end, though, this balancing served only to provide
political ammunition to both parties. Any future war-crimes commission
should therefore avoid openly partisan commissioners and staff.
The political parties cannot be ignored -- in order to command
appropriate levels of support within the Washington political
establishment, the commission will need party- affiliated co-chairs
who none-theless are viewed as being consensus-builders -- but the
balance of the commission should be persons of established integrity
whose professional backgrounds involve the skills essential to
studying, understanding, and dealing critically with the issues
arising from the practice of torture. A record of partisan political
engagement should weigh against a candidate's selection. The
experience pool should include prosecutors, intelligence
professionals, retired military leaders, religious leaders and
ethicists, human-rights advocates, health-care professionals, and
diplomats.
Someone will have to choose those people. The 9/11 Commission
legislation gave that responsibility to the secretary of defense, the
speaker of the House of Representatives, the Senate majority leader,
and the minority leaders in both houses of Congress. It probably will
be difficult to avoid a similar delegation of authority. But to ensure
that the persons selected are not simply partisan political
surrogates, a further layer might be incorporated. A qualifications
commission could be appointed first, consisting of a dozen members who
would have the sole task of preparing a list of pre- approved
candidates. The appointees would then have to be drawn from this list.
This approach was taken by South Africa in its Truth and
Reconciliation Commission, and it resulted in a final body that
commanded broad public respect. Indeed, observers of the South African
process have often cited the two-tiered appointments process as a key
to the commission's overall success.
Powers of the Commission
The bulk of the commission's work would be carried out not by
politicians but by a professional staff of lawyers, investigators,
subject experts, and various assistants. The authorizing legislation
should assume a staff roughly equal to that of the 9/11 Commission,
which totaled nearly eighty. Preference would be given to persons who
had previously obtained the necessary security classifications, but
the new commission should also be given the power to quickly address
security- classification issues. Staff members should be authorized
not only to hold and deal with the most sensitive classified documents
in a dedicated, secured document room but also to declassify or
require the declassification of documents, redacted as appropriate,
and to publish the results.
It will be essential for the commission to exercise subpoena power;
that is, the ability to force witnesses to appear and testify before
it with the possibility of civil or criminal penalties if they fail to
appear or give misleading or false testimony. Without this power it
would be very difficult for the commission to assemble the information
it needs to issue its report. To invest the commission with these
powers would be a somewhat complex legal matter, but not an
insurmountable one.[11]
Scope of the Investigation
The commission's mandate requires definition and focus. It must also,
however, provide the commission with reasonable room to pursue leads
that arise in the course of its investigation. The commission's
charge, therefore, should be to examine the formation and
implementation of policy concerning the treatment of detainees in
operations (including intelligence operations) undertaken in
connection with the Authorization for Use of Military Force Against
Terrorists. Tying the subject matter to a specific piece of
legislation will keep the investigation focused on a single
controlling authority even as it allows investigators to explore all
of the operations in which that authority was used, whether in Iraq or
Afghanistan, nearby staging areas, or other sites around the world,
including Guantanamo and "black sites" yet to be identified.[12]
Such a mandate would also allow the commission to investigate a
variety of non-administration actors, including Congress itself.
Republicans have frequently argued that many powerful Democrats,
including House Majority Leader Nancy Pelosi and Intelligence
Committee Chairman Jay Rockefeller, were fully briefed on the
administration's torture policy and failed to raise objections. Did
Congress acquiesce to the administration's choices? Did it provide
legal authority? Republicans may be questioning Democratic involvement
simply in order to discourage congressional inquiries. But such
questions nonetheless are completely legitimate.
Findings
The commission should conduct its work in public to the fullest
possible extent. Open hearings will educate the people about the
issues under inquiry and also help to build a consensus in resolving
those issues. Putting the testimony of victims and witnesses on the
record will be a crucial element of that process. It will be a first
step toward restoring the dignity and humanity of the victims, and it
will also serve to reveal, authenticate, and preserve vital evidence
that may be used in later legal proceedings.
Documents, particularly the many classified documents that the
administration continues to withhold from Congress and the public,
will be at the core of the commission's work. The president and his
advisers, like members of many regimes engaged in legally questionable
actions, have placed great emphasis on creating a legal groundwork for
their actions. The commissioners would examine these memos, briefs,
and other records with the aid of witnesses, but it is essential that
the documents themselves also be made permanently available to
journalists, scholars, and lawyers. A full fact-finding process is
likely to take decades. Public scrutiny can lead to the identification
of important details that even the most talented investigators may
miss on the first and second pass.
The commission would also be required to prepare an in-depth report.
The report should provide a comprehensive narrative, setting out in
detail how U.S. torture policy came to be formed and identifying the
key actors and the decisions they made.
Recommendations
The report's function would be more than historical, of course. It
must be forward-looking. Should laws be changed, regulations
rewritten, new procedures adopted?[13]
More important, the commission must look at the conduct of official
actors. Were laws and policies faithfully applied or were they broken?
If laws were broken, was there criminal conduct that merits study by
law- enforcement professionals? This analysis would establish the
background for the three most important potential results of a
commission: the formal recommendation to pardon, the formal
recommendation to pursue prosecution, and the formal recommendation to
make reparations.
On the matter of reparations, the commission could do a great deal of
good. The United States has already committed itself, under existing
international agreements, to making reparations to victims of torture.
Thus far, though, government action on this front has consisted
primarily of efforts to foreclose recovery. Moreover, the U.S.
litigation system is extremely costly and may not be an efficient
means of providing redress in situations where victims are non-
citizens and located outside of the United States. A commission might
recommend such alternative approaches as creating a claims-settlement
commission or granting special authority for ex gratia payments under
which the United States could offer compensation without being seen as
acknowledging wrongdoing. In cases in which a victim is convicted of
criminal wrongdoing, the fact that he suffered torture may be
considered in connection with sentencing, and some guidelines for this
should be furnished.
The recommendations to prosecute or pardon would not be binding in any
formal sense. Only the president has the constitutional authority to
pardon at the federal level, and any indictment ultimately would have
to find its way to prosecutors and the courts. The recommendations,
then, would be persuasive only to the extent that the commissioners
successfully made the case for them. (Many of the 9/11 Commission
recommendations, for instance, have yet to be enacted.) Still, the
commission would certainly be staffed with some career prosecutors. It
should be in a solid position to assess whether a special prosecutor
should be appointed. And that prosecutor would have a great deal of
evidence and political momentum at his or her disposal. If the process
is pursued faithfully, the recommendations should have considerable
political influence.
The hallmark of the Bush Administration has been its tendency to rush
to judgment, certain of propositions that turned out to be dead wrong.
In addressing its errors, such failings cannot be repeated. The
commission should proceed with care and take the time it needs to
develop a full record. The process is likely to consume at least two
years and possibly much longer. This is not necessarily a liability.
Right now, the administration looms large and justice seems distant.
That perspective will change significantly with the passage of time.
==============
[1] In addition to being illegal, torture is profoundly un-American.
The central premise of the American experiment is the belief, informed
by Enlightenment principles, that the dignity and worth of the
individual is at least as important as that of the state. This belief
weighed heavily on the minds of the Founders. The new American
military was to be a force of yeoman soldiers, citizens in peacetime
who were to be regarded as no less than citizens in wartime. Enemy
soldiers likewise were to be treated with respect. George Washington,
in the winter of 1776, sent a written order to officers overseeing
prisoners: "Treat them with humanity." And in 1863, at another time of
crisis, Abraham Lincoln included the prohibition of torture in the
first American codification of the laws of war, which he also issued
as a direct order to his field commanders. By way of such American
leadership, the prohibition on torture was gradually absorbed into
international law.
[2] Cheney at the time declined to refer to this practice as torture,
preferring instead to describe it as "robust interrogation," and that
reluctance has been echoed in the press. I myself was twice warned by
PBS producers, in advance of appearances on The Newshour with Jim
Lehrer, that I could use the word "torture" in the abstract but that I
was to refrain from applying it to the administration's policies. And
after an interview with CNN in which I spoke of the administration's
torture policy, I was told by the producer, "That's okay for CNN
International, but we can't use it on the domestic feed." More
recently, however, the consensus appears to be that "torture" is a
perfectly adequate description of administration policy. In the vice-
presidential debates, Joe Biden said that Cheney has "done more harm
than any other single elected official in memory in terms of shredding
the Constitution. You know -- condoning torture." In the first
presidential debate, John McCain said we must ensure "that we have
people who are trained interrogators so that we don't ever torture a
prisoner ever again." And Barack Obama, though vague, seemed to accept
this formulation. "I give Senator McCain great credit on the torture
issue," he said, "for having identified that as something that
undermines our long-term security."
[3] In an interview with Jane Mayer of The New Yorker, a former senior
CIA official with knowledge of the administration's torture program
summarized its attitude more bluntly: "Laws? Like who the fuck cares?"
[4] This last point is not even slightly controversial. Richard
Armitage, a Republican former Navy officer who served as deputy
secretary of state from 2001 to 2005, is likely the highest-ranking
administration official to personally have experienced this form of
torture. In the late Sixties, he was waterboarded as part of a
training program -- Survival, Evasion, Resistance, and Escape, or SERE
-- designed to prepare military personnel to resist enemy
interrogators. His conclusion was straightforward. "Of course
waterboarding is torture," he told the BBC in 2007. "I can't believe
we're even debating it." Military lawyers agree. In a 2007 letter to
Senate Judiciary Committee Chairman Patrick Leahy, four retired judge
advocates general hammered the point again and again. "Waterboarding
is inhumane, it is torture, and it is illegal," they wrote, adding
that "it is not, and never has been, a complex issue, and even to
suggest otherwise does a terrible disservice to this nation." Even
Republican Senator Lindsey Graham, himself a onetime reserve military
judge and sometime supporter of administration detainee policy, admits
that waterboarding is illegal. "I don't think you have to have a lot
of knowledge about the law," he said in 2007, "to understand this
technique violates Geneva Convention Common Article Three, the War
Crimes statutes, and many other statutes that are in place."
[5] It is not without justification that Bush was able to claim in
2005, "We had an accountability moment, and that's called the 2004
elections." Such taunts recall the (likely apocryphal) moment when
William Tweed, the corrupt head of New York's Tammany Hall, was
confronted with indisputable evidence of graft. "Well," he said, "what
are you going to do about it?"
[6] 18 U.S.C. paragraph 2340 makes it a crime for any "person acting
under the color of law" to "inflict severe physical or mental pain or
suffering (other than pain or suffering incidental to lawful
sanctions) upon another person within his custody or physical
control." The penalty for this crime -- as Bush's Office of Legal
Counsel carefully noted in a 2003 memo on the subject -- is up to
twenty years in federal prison.
[7] Or even their own administrations: George W. Bush formed the Robb-
Silberman Commission in 2004 to look into why his administration's
conclusions about Iraqi WMDs were so completely wrong, but the
commission somehow failed to discover the pressure that the
administration itself had brought to bear on intelligence analysts to
cook their conclusions -- in part, perhaps, because Dick Cheney was
personally responsible for putting part of the commission together,
starting with the appointment of his friend Laurence Silberman as co-
chair. The Tower Commission, created by Ronald Reagan to look into the
Iran-Contra scandal, was a similarly lukewarm exercise in damage
control, in which the authors ultimately concluded that all that was
really needed to avoid future such scandals was a modest restructuring
of the role of the national security adviser.
[8] This may explain why, when Will Bunch of the Philadelphia Daily
News asked Barack Obama in August "whether an Obama administration
would seek to prosecute officials of a former Bush Administration,"
the senator's response was guarded. "I can't prejudge that, because we
don't have access to all the material right now. I think that you are
right: if crimes have been committed, they should be investigated.
You're also right that I would not want my first term consumed by what
was perceived on the part of Republicans as a partisan witch hunt,
because I think we've got too many problems we've got to solve." Obama
adviser Cass Sunstein has similarly warned that pursuing prosecutions
of Bush Administration officials would generate a "cycle" of partisan
recriminations.
[9] The leaders of the 9/11 Commission were, in fact, pointed in their
criticism of the false or misleading statements that were provided by
some agencies, particularly the Department of Defense and the Federal
Aviation Administration. In their book, Without Precedent, the
commission's co- chairs, Thomas Kean and Lee Hamilton, write that they
openly considered recommending prosecution of some government
officials for criminal obstruction, a threat that ultimately secured
some compliance. They remained skeptical, however, about how much
cooperation they ultimately received.
[10] Newsweek columnist Stuart Taylor, long a defender of the
administration's detainee policies, wrote in July that a war-crimes
trial would "touch off years of partisan warfare. The lesson for
occupants of the toughest government jobs -- if the next
administration could find people willing to fill them -- would be that
saving innocent lives is less important than covering their
posteriors." Taylor has, however, embraced the idea of a truth
commission.
[11] The White House has forbidden several of its former employees --
including former chief of staff Joshua Bolton, former counselor
Harriet Miers, and former senior adviser Karl Rove -- from testifying
before congressional oversight panels. When a court ordered them to
appear, the administration sought to appeal the ruling in a
transparent, and thus far successful, effort to run out the clock. The
administration has also withheld documents, citing exotic theories of
privilege. In congressional hearings, White House attorney John Yoo
simply refused to answer questions, on the grounds that he had been
instructed by the Justice Department not to answer, even though many
of the questions concerned matters that Yoo had discussed in two books
and dozens of other public forums. The difference between Yoo's public
discussion and his testimony was, of course, that the latter was under
oath.
[12] The Authorization for Use of Military Force Against Terrorists,
passed into law shortly after the attacks of September 11, 2001, is
the statute that has provided general authority for the conduct of
military operations in what the administration has came to call the
"Global War on Terror." Since the president's repeated assumptions of
extralegal powers was predicated in Justice Department memoranda on
his commander-in-chief authority, that military link should help
define the time, the space, and the nature of the conduct that
requires investigation.
[13] One highly controversial area of inquiry will be the question of
efficacy. The major argument for torture now is simple: It works, and
therefore any state that wants to protect itself would be foolish to
dispense with it. But does torture "work"? Many human-rights activists
have strongly discouraged even asking the question. Doing so, they
argue, transforms a moral argument -- a basic respect for the dignity
of all humans forbids torture -- into a utilitarian argument. Such a
consideration of ends versus means opens the door to all kinds of
"what if" scenarios that would eventually lead to wider social
acceptance of torture. (One way to more easily assess that concern
would be to substitute another taboo act -- say, child rape -- for
torture. Would it be acceptable to rape a child if there were a
ticking time bomb under the Empire State Building and you sincerely
believed that raping that child was the only way to find it?)
There is much to be said for these concerns. And yet those who are
against torture also have the better end of the utilitarian argument.
Under centuries of the lex talionis, or law of retribution, if a
nation inflicted indignities on its captives, others were free to do
the same to its soldiers. One of the clearest consequences of the Bush
torture policies has been to put American service personnel at risk.
Nor is there any evidence that torture is an effective means to the
end of national security. Bush has argued that "the program" he helped
establish did in fact secure information that "saved American lives."
But others who have looked into the incidents that Bush cites say
that, in fact, what useful intelligence was gathered in these
interrogations was gathered before the interrogators resorted to
torture. Indeed, the techniques utilized at Guantanamo and Abu Ghraib
were developed not for the purpose of gathering intelligence but
rather to elicit false confessions to be used for political purposes.
This invites a number of questions: Was the intelligence collected
inherently more or less reliable than intelligence gathered using
other techniques? Was it necessary to turn to highly coercive tactics
to secure this information? What other consequences for national
security flow from the use of the new techniques in terms, for
instance, of loss of intelligence-gathering channels, damage to
reputation, recruitment gains for enemies, and compromised cooperation
from allies? These questions, although they may suggest, perniciously,
that "reasonable minds differ" on torture, nonetheless are worth
asking for one reason above all. The answers, coming from
administration officials, would also act as a kind of confession.
Their self-justification should be part of the record.
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From: Environmental Health News, Jan. 9, 2009
[Printer-friendly version]
AUTISM EPIDEMIC NOT CAUSED BY SHIFTS IN DIAGNOSES
Changes in doctors' diagnoses cannot explain the sevenfold increase in
autism since 1990, a new California study shows. Environmental
factors are probably to blame.
By Marla Cone, Editor in Chief
California's sevenfold increase in autism cannot be explained by
changes in doctors' diagnoses and most likely is due to environmental
exposures, University of California scientists reported Thursday
[Jan. 8, 2009].
The scientists who authored the new study advocate a nationwide shift
in autism research to focus on potential factors in the environment
that babies and fetuses are exposed to, including pesticides, viruses
and chemicals in household products.
"It's time to start looking for the environmental culprits responsible
for the remarkable increase in the rate of autism in California," said
Irva Hertz-Picciotto, an epidemiology professor at University of
California, Davis who led the study.
Throughout the nation, the numbers of autistic children have increased
dramatically over the past 15 years. Autistic children have problems
communicating and interacting socially; the symptoms usually are
evident by the time the child is a toddler.
More than 3,000 new cases of autism were reported in California in
2006, compared with 205 in 1990. In 1990, 6.2 of every 10,000 children
born in the state were diagnosed with autism by the age of five,
compared with 42.5 in 10,000 born in 2001, according to the study,
published in the journal Epidemiology. The numbers have continued to
rise since then.
To nail down the causes, scientists must unravel a mystery: What in
the environment has changed since the early 1990s that could account
for such an enormous rise in the brain disorder?
For years, many medical officials have suspected that the trend is
artificial -- due to changes in diagnoses or migration patterns rather
than a real rise in the disorder.
But the new study concludes that those factors cannot explain most of
the increase in autism.
Hertz-Picciotto and Lora Delwiche of the UC Davis Department of Public
Health Sciences analyzed 17 years of state data that tracks
developmental disabilities, and used birth records and Census Bureau
data to calculate the rate of autism and age of diagnosis.
The results: Migration to the state had no effect. And changes in how
and when doctors diagnose the disorder and when state officials report
it can explain less than half of the increase.
Dr. Bernard Weiss, a professor of environmental medicine and
pediatrics at the University of Rochester Medical Center who was not
involved in the new research, said the autism rate reported in the
study "seems astonishing." He agreed that environmental causes should
be getting more attention. "It's time to start looking for the
environmental culprits responsible for the remarkable increase in the
rate of autism in California." ...Irva Hertz-Picciotto
The California researchers concluded that doctors are diagnosing
autism at a younger age because of increased awareness. But that
change is responsible for only about a 24% increase in children
reported to be autistic by the age of five, according to the report.
"A shift toward younger age at diagnosis was clear but not huge," the
report says.
Also, a shift in doctors diagnosing milder cases explains another 56%
increase. And changes in state reporting of the disorder could account
for around a 120% increase.
Combined, Hertz-Picciotto said those factors "don't get us close" to
the 600% to 700% increase in diagnosed cases.
That means the rest is unexplained and likely caused by something that
pregnant women or infants are exposed to, or a combination of genetic
and environmental factors.
"There's genetics and there's environment. And genetics don't change
in such short periods of time," Hertz-Picciotto, a researcher at UC
Davis' M.I.N.D. Institute, a leading autism research facility, said in
an interview Thursday.
Many researchers have theorized that a pregnant woman's exposure to
chemical pollutants, particularly metals and pesticides, could be
altering a developing baby's brain structure, triggering autism.
Many parent groups believe that childhood vaccines are responsible
because they contained thimerosal, a mercury compound used as a
preservative. But thimerosal was removed from most vaccines in 1999,
and autism rates are still rising.
Dozens of chemicals in the environment are neurodevelopmental toxins,
which means they alter how the brain grows. Mercury, polychlorinated
biphenyls, lead, brominated flame retardants and pesticides are
examples.
While exposure to some -- such as PCBs -- has declined in recent
decades, others -- including flame retardants used in furniture and
electronics, and pyrethroid insecticides -- have increased.
Mothers of autistic children were twice as likely to use pet flea
shampoos, which contain organophosphates or pyrethroids, according to
one study that has not yet been published. Another new study has found
a link between autism and phthalates, which are compounds used in
vinyl and cosmetics. Other household products such as antibacterial
soaps also could have ingredients that harm the brain by changing
immune systems, Hertz-Picciotto said.
In addition, fetuses and infants might be exposed to a fairly new
infectious microbe, such as a virus or bacterium, that could be
altering the immune system or brain structure. In the 1970s, autism
rates increased due to the rubella virus.
The culprits, Hertz-Picciotto said, could be "in the microbial world
and in the chemical world."
"I don't think there's going to be one smoking gun in this autism
problem," she said. "It's such a big world out there and we know so
little at this point."
But she added, scientists expect to develop "quite a few leads in a
year or so."
The UC Davis researchers have been studying autistic children's
exposure to flame retardants and pesticides to see if there is a
connection. The results have not yet been published.
"If we're going to stop the rise in autism in California, we need to
keep these studies going and expand them to the extent possible,"
Hertz-Picciotto said.
Funding for studying genetic causes of autism is 10 to 20 times higher
than funding for environmental causes, she said. "It's very off-
balance," she said.
Weiss agreed, saying that "excessive emphasis has been placed on
genetics as a cause."
"The advances in molecular genetics have tended to obscure the
principle that genes are always acting in and on a particular
environment. This article, I think, will restore some balance to our
thinking," he said.
Some issues related to whether the increase is merely a reporting
artifact remain unresolved. There could be other, unknown issues
involving diagnosis and reporting, scientists say.
The surge in autism is similar to the rise in childhood asthma, which
has reached epidemic proportions for unexplained reasons. Medical
officials originally thought that, too, might be due to increased
reporting of the disease, but now they acknowledge that many more
children are asthmatic than in the past. Experts suspect that
environmental pollutants or immune changes could be responsible.
Autism has serious effects, not just on an individual child's health
but on education, health care and the economy.
"Autism incidence in California shows no sign yet of plateauing,"
Hertz-Picciotto and Delwiche said in their study.
Copyright 2003 Environmental Health Sciences
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From: The Star Phoenix (Saskatoon, Canada), Jan. 10, 2009
[Printer-friendly version]
WE'RE NOT DOOMED, BUT WE'RE IN DANGER
By Sheila Pratt, Canwest News Service
[Editor's note: The Worldwatch Institute recently reached the same
conclusion as Gwynne Dyer about the need to decarbonize the global
economy totally by 2050.]
The Bush era of climate-change denial will end the moment Barack Obama
steps into the White House, predicts author and international affairs
analyst Gwynne Dyer.
President Obama will find several major reports on global warming
waiting for him from the U.S. defence and state departments, when he
sits down at his desk Jan. 20, says Dyer -- and they contain some
ominous scenarios about the impact of global warming and how much time
is left to take meaningful action.
"The denial industry is in full retreat," says Dyer, whose latest book
is Climate Wars.
"We'll be into an international carbon trading system in four to eight
years, and possibly a U.S. ban on non-conventional oil."
However, even with the U.S. finally taking climate change seriously,
the world cannot possibly meet the deadlines outlined in the 2007
report of the Intergovernmental Panel on Climate Change to avoid the
crucial tipping point that could lead to runaway global warming.
That's one of several grim conclusions in Dyer's book that will give
the reader a few sleepless nights with its visions of mass migrations,
famine, floods and the possible collapse of international institutions
like the United Nations under severe circumstances.
But Dyer also offers a way out, sort of, so it's important to stick to
the end of the story.
"We are not doomed; we are just in danger," says Dyer, who still has
faith the world can find a way to maintain a high-energy, high-tech
civilization.
Dyer, well known for his books on war, turned his mind to climate
change when he realized defence departments in Britain and other
countries are already making plans to cope with the negative fallout
of a warmer planet.
The first and most important impact will be "an acute and permanent
crisis of food supply," with any significant warming beyond the
current level, says Dyer.
In that situation, wars become probable. "Countries that are unable to
feed themselves are unlikely to be reasonable about it.
"There is a probability of wars, even nuclear wars, if the temperature
rises more than two to three degrees Celsius," writes Dyer, with India
and Pakistan in mind.
"Once that happens, all hope of international co-operation to curb
emissions and stop the warming goes out the window."
Climate warming is already measurable, says Dyer.
"I was in India 18 months ago and a new study showed they are already
two degrees hotter than 1990," he says. With every two degrees more of
warming, food production will drop by 25 per cent, according to the
study.
Dyer takes a close look at an American report, The Age of
Consequences: Foreign Policy and National Security Implications of
Global Climate Change produced in November 2007 by two Washington-
based think-tanks.
Even its "non-alarmist" scenario projects serious problems -- coastal
land in Southeast Asia will be lost, failing crops in Central and
South America, prolonged drought in the Southwest U.S. and the
Mediterranean countries of Europe.
His research led Dyer to conclude the warming trend is moving faster
than the predictions of scientists on the Intergovernmental Panel on
Climate Change.
"The kinds of problems we anticipated for 2040 will arrive in 2020,
not in our children or grandchildren's lifetime, but our lifetime,"
says Dyer.
Dyer says the unavoidable conclusion is that the world has to wean
itself off the carbon economy in the next few decades and cut
emissions by 80 per cent.
"Most of the changeover has to come in the next twenty years and we
need to have completely decarbonized our economies by 2050."
Copyright The StarPhoenix (Saskatoon) 2009
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Rachel's Democracy & Health News (formerly Rachel's Environment &
Health News) highlights the connections between issues that are
often considered separately or not at all.
The natural world is deteriorating and human health is declining
because those who make the important decisions aren't the ones who
bear the brunt. Our purpose is to connect the dots between human
health, the destruction of nature, the decline of community, the
rise of economic insecurity and inequalities, growing stress among
workers and families, and the crippling legacies of patriarchy,
intolerance, and racial injustice that allow us to be divided and
therefore ruled by the few.
In a democracy, there are no more fundamental questions than, "Who
gets to decide?" And, "How do the few control the many, and what
might be done about it?"
As you come across stories that might help people connect the dots,
please Email them to us at d...@rachel.org.
Rachel's Democracy & Health News is published as often as
necessary to provide readers with up-to-date coverage of the
subject.
Editor:
Peter Montague - pe...@rachel.org
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