The Lawyers Who Would Torture

America’s current economic meltdown has crippled many professions, and the legal professional is no exception. As major law firms are engaging in the wholesale layoffs of lawyers, and freezing hiring for two years, newly minted lawyers must seek employment at department stores and fast food restaurants. One cannot help but conclude that collectively, lawyers are paying the price for the crimes of an errant minority.

I speak of that group of lawyers that, over the past decade, wrote the 30-page credit card contracts that are destroying millions of lives—contracts that are so intentionally murky and deceptively convoluted that even Elizabeth Warren, Harvard law professor and Congressional TARP overseer, cannot understand them. There were the Ponzi-scheming lawyers who conspired to swindle honest, hard-working citizens out of billions of dollars in life savings. And there were the lawyers and judges who knowingly placed the innocent behind bars—or even worse, sent them to their untimely death.

And finally, there were the government lawyers who wrote memos to the President, justifying the torture of terror suspects, and giving the green light to lawbreaking. These documents were not mere academic exercises, but rather weapons used to harm and oppress others. Further, these memos were a violation of international treaties and federal criminal statutes, denying its victims a fair trial governed by the rule of law. If there is a hell, whether actual or metaphysical, such a place would undoubtedly reserve a special wing for such lawyers. And they will be made to wear those proverbial gasoline drawers on their journey to that select subterranean locale.

To coincide with the Obama administration’s release of a report on the CIA’s brutal and coercive interrogations techniques, Georgetown legal scholar David Cole has presented a new book called Torture Memos: Rationalizing the Unthinkable (The New Press, 2009). As its name suggests, the book discusses and presents in their entirety the actual legal memoranda that Bush administration lawyers wrote to justify torture. An important point which Cole makes is that while the actual CIA torturers should be held accountable for their brutal and illegal acts, the authors of these memos are culpable for their contortions of the law to sanction human rights abuses.

“Law at its best is about seeking justice, resolving disputes pursuant to principle and reasoned judgment, regulating state power, respecting human dignity, and protecting the vulnerable”, Cole says (p. 35). “Law at its worst treats legal doctrine as infinitely manipulable, capable of being twisted cynically in whatever direction serves the client’s desires….[T]hey used law not as a check on power, but as a facilitator of brutality, deployed against captive human beings who had absolutely no other recourse.”

Acting in bad faith, the legal hacks who crafted the torture memos engaged in sham analysis and tricky legal gymnastics. Motivated by a desire to please their superiors and little else, they merely invented law out of thin air, and created a law-free zone where perpetrators could act as they pleased. No superior legal analysis was presented from these allegedly superior legal minds. Ignoring that the prohibition on cruel, inhuman, and degrading treatment is absolute, they began with a false, predetermined conclusion that torture is acceptable. They proceeded to twist the law to rationalize their predetermined conclusion. Most of all, the analysis always absolved the CIA torturers— and the officials who authorized torture— of any wrongdoing. It makes you wonder what some people actually learn in law school, and what they hope to do with their law degree.

A nation is only as good as the laws that govern it. Unfortunately, throughout history we have witnessed the ways in which societies compromise their legal systems to oppress the many, benefit the few, and sanction the unconscionable. The law becomes a political game in which the powerful are exempt from the rules, and some are more equal than others. An arbitrary and capricious legal system can cloak injustice and the unjust with a veneer of legitimacy, fully backed by the apparatus of the state and the prestige of the courts. The Torture Memos reminds us through its post-game analysis that a free society must guard against such abuses of the law. Failure to do so will ensure that official criminal wrongdoing will occur. And as a matter of fact, it just did over the course of the Bush years.

Cross-posted from BlackCommentator.com and Huffington Post.

When the Law is the Crime Being Committed

By David A. Love, BlackCommentator.com

When a person commits a crime, everyone has an answer as to what punishment should or should not be meted out. But what do you do when a law is a crime unto itself, and society is committing the crime?

I asked myself that question when I recently saw the film The Lemon Tree. A fictional account based on real-life stories, it centers around Salma Zidane, Palestinian woman who owns a lemon grove on the West Bank-Israel border. Zidane’s neighbor, the new Israeli defense minister, builds an upscale home near the lemon trees and the secret service declares the grove a security threat. The military erects a watchtower, and bars her from entering her lemon grove and tending to it. As the minister and his family take some of the lemons for their own use, Zidane is met with physical force, at gunpoint, when she climbs the wire fence in an attempt to enter her own grove. The minister orders the trees uprooted pursuant to military law, and Zidane, who rejects the government’s offer to compensate her, fights the decision all the way up to the Israeli high court.

The Lemon Tree makes a statement about the dysfunctional state of affairs in the Mideast, and a struggle of people who are fighting for their rights. Central to the film, in my view, is the law which allowed for the destruction and confiscation of Palestinian property on the grounds of “military necessity” (translated: Palestinian terrorist threat).

People do not think much about laws, and they question not how and why they are promulgated. In a previous commentary, I argued that a law is that which is bought and paid for. I would like to add to that definition with a secondary definition: a law endorses and legitimizes the oppressive tendencies of a given society. In order to justify an injustice, simply write it into law and legalize it. Rubber stamp it. You don’t have to justify the abhorrent practice on its merits, you simply back into it. It is now the law, so it is lawful. And the nation’s legal apparatus will bring force to bear and uphold the law.

A law can also reveal a narrative, a story that a given society wants to tell about itself, its values, and the way it deals with certain conduct. So in The Lemon Tree, the law that Salma Zidane challenges provides us with a story about Israeli-Palestinian relations: In Israel, Palestinians are second-class citizens - better yet, non-citizens - who have no rights, including the right to own land in a country that is not their own, even though this is the only home they have known. They are bad people and considered dangerous, whether men, women or children, and should be viewed as potential if not actual terrorists. That is why they are subjected to a regime of ID cards, unreasonable checkpoints and curfews. These security precautions must be taken, the argument goes, to protect Israeli families and their homes from these terrorists (Palestinians).

In the United States, we have seen recent examples of unjust laws. A nation that has all but forsaken the notion of rehabilitation in its criminal justice system, America chooses to punish people - whether through incarceration, fine, sanction, etc. - not only for the crime for which they are convicted. Rather, there are laws that add collateral punishment to a prison sentence by denying a convicted felon access to student loans for college, or by barring that person employment and licensure in many professions, access to public assistance and public housing. Yet, that person is likely expected to find employment in order to pay restitution, as a term of his or her probation or parole. As a result, people with a criminal record are unable to provide for their families and become productive members of society. Such laws articulate the narrative of a country that has decided to write off certain members of society, to banish them from participation in daily life, and pronounce them dead in a civil sense.

Another example is the Bush administration’s endorsement of torture of terror suspects. The Bush cronies started with the blatantly false assumption that torture is acceptable - although domestic and international law clearly says the practice is illegal. Hack lawyers working for former President Bush and former Vice President Cheney provided the legal cover by engaging in professional misconduct - writing memos with faulty legal reasoning declaring that torture is legal. They essentially backed into the legalization of torture by declaring torture is legal because the memos say it is legal.

Wherever you find unjust laws and a legal system that serves as the commission of a crime on society, you will find lawyers and judges as willing participants in the injustice. In the Jim Crow South and apartheid South Africa, not only were racism, racial discrimination and oppression accepted, they were the law. And there were legal tacticians who were willing and able to prop up those systems of injustice. Segregation, disenfranchisement, miscegenation laws, curfews, capital punishment and prison farms were part of a legal framework to kill Black aspirations of empowerment and self-determination.

In a similar vein, the Nuremberg laws devised by Nazi Germany sanctioned the oppression and ultimately the annihilation of European Jews, with the enforcement of these laws by sham kangaroo courts. The Nazi legal regime received their cues from the American South, with racial integrity laws that defined a Jew in ways that echoed the “one-drop rule” for Blacks under Jim Crow. The discriminatory laws disenfranchised Jews; kept them segregated and contained in ghettos; stripped them of their German citizenship; prohibited them from engaging in a profession or working in a government job; barred Jews from intermarrying and having sexual relations with Germans; excluded them from receiving social welfare and attending public schools and universities, and prohibited them from holding driver’s licenses. Jews were banned from resorts, beaches and swimming pools, barred from sleeping and dining cars on trains, and made to register for forced labor. And they were forbidden to walk in certain places at certain times of the day. All of these measures were passed under German law, under penalty of hard labor (like Jim Crow), for the sake of maintaining the purity of German blood. Nazi law defined children as “persons who are not Jews.” Being Jewish, in essence, became illegal.

Dr. Martin Luther King had much to say about unjust laws. In his April 16, 1963 Letter from Birmingham Jail, he said that unjust laws are made to be broken:

"You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court's decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may ask: 'How can you advocate breaking some laws and obeying others?' The answer lies in the fact that there are two types of laws: just and unjust…. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that 'an unjust law is no law at all'…. An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself. This is difference made legal. By the same token, a just law is a code that a majority compels a minority to follow and that it is willing to follow itself. This is sameness made legal."

In our daily lives, wherever we may find ourselves in the world, we must fight the temptation to endorse unjust laws. We should resist participating in the oppression of others through the use of the law. After all, when you have blood on your hands, it is very hard to wipe them clean.

Tasers deadly, should be banned

By David A. Love
Progressive Media Project
December 28, 2007

The Taser is a deadly weapon and should be banned.

A Taser, also known as a stun gun, is a hand-held device that fires two jumper-cable-type probes that attach to a person up to 35 feet away. It sends a charge of 50,000 volts to the body and demobilizes its subject.

The weapon is used by nearly 12,000 of the 18,000 law-enforcement agencies in America, according to Thomas P. Smith, chairman of the board and co-founder of the manufacturer Taser International, in a recent interview with NPR's Diane Rehm. Of these, 4,000 agencies provide a Taser for every officer, he said.

According to Amnesty International, 291 people have been killed by police Tasers in the United States since 2001, though the manufacturer denies there is a direct link. Amnesty is concerned that Tasers are being used as a routine tool of law enforcement rather than as a weapon of last resort. It says the vast majority of people killed by Tasers were unarmed and posed no danger to police.

"We notice that a lot of the people who are shot with this weapon and subsequently die are mentally ill, are under the influence of narcotics, alcohol or illicit drugs," says Dalia Hashad, director of Amnesty International USA's domestic human rights program. "Many of the people who have problems seem to be elderly or very young, and that really raised some important concerns for us."

What's more, police often use the weapon recklessly. Officers subjected 92 people to between three and 21 shocks. One man died after being electro-shocked for 57 continuous seconds.

The rate of death appears to be increasing. In one week in November alone, four people died in the United States after being hit by Tasers.

Canada has had its problems with the controversial weapon as well. In September, Claudio Castagnetta, a 32-year-old Italian, died in a Quebec City jail after he was jolted with a Taser while allegedly having a psychotic episode. In October, a 40-year-old Robert Dziekanski, who spoke only Polish, died after being shocked twice by a Taser at Vancouver International Airport. And in November, Howard Hyde, a 45-year-old paranoid schizophrenic man, died in a Dartmouth, Nova Scotia, jail 30 hours after being Tasered by police.

This prompted the Royal Canadian Mounted Police to announce a shift in policy regarding Tasers on Dec. 14. The new policy severely restricts their use.

But no such restriction, much less a ban, is in effect in the United States.

Last month, the U.N. Committee on Torture said that the use of Tasers "constituted a form of torture."

Police cannot fight crime at the expense of our human rights or our lives. Tasers should be removed from all police stations in the country.

Jumper cables should be used on cars, not on people.