[GPSCC-chat] Notes from Mark Danner's Talk 4/14

[Brian Good]

"Torture and the Forever War: Living in the
State of Exception: Imposing the State of Exception: Constitutional
Dictatorship, Torture and Us” 




Mark Danner's lecture about our current
"State of Exception" opened with the observation that we
are functioning under a "9/11 Constitution" and a
"Constitutional Dictatorship", that transcends legal
borders and has more to do with politics than law.



We've had other times of exception,
including Lincoln's suspension of habeas corpus, Wilson's deportation
of anti-war activists, and Roosevelt's internment of
Japanese-Americans.  But this one at nine years is the
longest-lasting and has no end in sight.  It's also notable for its
open-endedness, its
general acceptance , and its subtlety. 
It touches few of us directly; the burdens are born mostly by
foreigners.  




Torture was an anathema.  Obama's
non-action has made it into a policy choice.



Features of the State of Exception:



1.  The War on Terror redefines
anti-terrorist action as war
2.  The WOT is unbounded -- global, and
apparently endless
3.  Redefining alleged terrorists as
"unlawful combatants" instead of criminals deprives them of
all legal protections
4. The Preventive Paradigm emphasizes
aggressive, pre-emptive action -- abandoning legal tests such as
probable cause and imminent danger.  It seeks to eliminate risk at
the expense of proof.
5.  WOT powers are based on the notion
of the President's inherent powers
6.  Powers of secrecy are exploited
7. Large and complex problems are
attacked with improvised, impractical, and amateurish solutions
8. the WOT is exploited for political
purposes, especially before elections



When Abu Zubaydah famously woke in his
white room, there was no acknowledgment from the government that they
held him, or had any obligations about his treatment.  Limits on
government
power were completely removed.



He had no role in 9/11, and was not
even a member of al Qaeda.  But he was believed to be Osama's #2 man,
and interrogators operated on the basis of their own speculations on
what the prisoner should know.  He was waterboarded 83 times.



Bush defined a line before the Law
Enforcement paradigm before 9/11 and the War on Terror after.
Partly this was an attempt to banish
the attacks (and questions about his own legitimacy after the flawed
electoral process of 2000) to the realm of the other party.  Cofer
Black of the CIA said that after 9/11, the gloves came off.  The
9/11attacks were blamed on handcuffs on Presidential powers that had
been imposed in the Watergate and Frank
Church Committee era.  The Republicans exploited the 9/11 attacks to
blame the Democrats for security deficiencies, and won an unusual
midterm election victory in 2002.  




Cheney's "1% threat
must-be-treated-as-ceetainty" doctrine implies that only lack of
action, not mistaken action, can be dangerous.  There was a great
fear of failure.



The INS detained 5,000 in the USA after
9/11.  Ultimately almost 100,000 were detained globally, and the
system was clogged.   Nobody could be released for fear that they
would reveal how screwed up the system was.  At Abu Ghraib, 85% of
the 20,000 prisoners had no intel value at all.  




Some of the legal justification in the
torture memos was based on the notion that if  US soldiers were
subjected to some of these practices in the training environment,
then actual prisoners would not harmed.  




There is amazingly scant record of
policy discussions behind the State of Exception.  After Condi early
on (5-14-02) approved of the interrogation planes for Abu Zubaydah,
her buddy Philip Zelikow observed that when the question should have
been "What should we do?" the question asked was "What
can we do?"  The CIA improvised a program of medically-monitored
procedures that were experimental and improvised.  




Abu Zubaydah had his head smashed into
the wall through use of a towel around his neck.  By the time Khalid
Sheikh Mohammed came along 11 months later, the towel had morphed
into a collar.  The CIA wanted the NSC and Congress to go along with
what they were doing.



Waterboarding is not a case of
"simulated drowning" as has been claimed.  It's
"interrupted drowning."  Abu Zubaydah was waterboarded 83 times.
 Khalid Sheikh Mohammed had an oximeter on his finger so his
interrogators could see how close he was to dying.



Torture lawyer John Yoo told the DoJ
OPR that he thought he'd prohibited waterboarding.  As the practice
was described in the press, he thought it would be prohibited.  As
described in his memo, it was different.  The torture practices in
the field creeped from the specs.  




Officials wanted "declination
letters" to protect them--advance immunity.  The Yoo memos and
legislation such as the Military Commissions Act provided some of
this.  Policymakers were surely looking forward to a future when
their actions would be questioned.  So now, what is to be done? 

***







 		 	   		  
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