Final Exam

Some sights are so strange that you can’t stop to look: that corpse with rigor mortis on the roadside; the monkey butcher’s stand; the mummy-wrapped form balanced crosswise on that slow bicycle’s cargo rack. You just blink and proceed. We all have doubtful memories like that.

This was one of those disorienting sights. The hurtling juggernaut of the deep state pulled over for a brief inspection. The drivers emerged and showed their manifests. The human livestock they were carrying made agonized sounds inside. Shiny chrome hood ornament Barack Obama glinted inertly in the background like the bowlegged dog on a clapped-out Mack truck. The authorities issued a warning and waved them on.

It happened last month, when the accumulated betrayals of the last staged election had made it plain that our democracy’s a sham. You saw that nothing will stop them from taking everything you have. The state will pen you in or torture you or kill you for expediency’s sake. Don’t ask why, they don’t need to justify their conduct, you are not cleared to know.

Then the state submitted to examination. What have you got to say for yourself? That was the accusive question. Remarkably, the autocrats that rule us answered it.

The International Covenant on Civil and Political Rights, or ICCPR, is a list of duties to which states commit and continuing review that holds states to their commitments. Review is conducted by the Human Rights Committee, a panel chosen by the states that ratify the Covenant. The experts do not represent their countries. States choose them for their expertise in human rights.

The review that results is like nothing ever seen in America’s servile press or stilted party-line polemic. For the Human Rights Committee, the ICCPR is a checklist that ensures thorough exposure of US state repression and predation, numbing in its detailed enormity. The best way to take it in is to watch and wallow in the infamy. But beware. However much you know about the conduct of this state, facing it all at once is tough to take.

The US government signed up for inspection under George H.W. Bush. Perhaps they expected servile acclamation. That wasn’t what they got. From the first they didn’t pass with flying colors. Worse, evaluation didn’t prompt improvement. The state seemed out of control: aggression against Belgrade, catastrophic failure to protect its population at home, more aggression in Afghanistan and Iraq. The inspectors of the Human Rights Committee kept comprehensive records of the government’s sordid fall.

The time came for another examination by the Human Rights Committee, the government’s fourth (or really, third – for a time the US government hid from Committee review.) It was held March 17 and 18, 2014. Much had transpired.

The US government had worked hard to prepare. After the disgrace of Abu Ghraib, the government dug deep into the text of the ICCPR for loopholes permitting crimes against humanity. Among the covenant’s commitments they found the words:

… undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant.

The government lawyers grappled with the second ‘and’ as though it was a Zen koan. To it they assigned the meaning it would have in a line of computer code, as a test for two concurrent conditions. And what do you know, the words now exempted people from human rights protection unless they are both on US territory and under US jurisdiction.

This had all sorts of convenient features. Now when a delinquent child throws a stone across the Mexican border and runs and a border policeman shoots him in the back, the United States can, and does, shrug and say, he wasn’t on our territory. No right to due process, or to life. Now when NSA sabotages international communications networks, surveillance is not prohibited because… that’s not US jurisdiction. NSA can trap your every utterance and your words as you type them, titter over your vices and your family spats, and that’s OK because they spied on you from overseas. Torture, murder, disappearance, arbitrary and indefinite detention, now it’s hunky-dory anywhere in the world except on US territory.

The logic was insane, of course, and contradicted the understanding of every other party to the treaty.

Long-suffering human rights poster boy Harold Koh wrote an article demolishing the wheeze and quit his job at state. But for the criminal-impunity branch of the government, the notion was too handy to give up.

At the outset of the review, the Human Rights Committee pointed out that the US had lodged no formal reservation to the common sense and context of the words. And the US had never been shy about reservations – it submitted more reservations than any other party to the covenant, disregarding the objections of all the treaty parties. Yet when they ratified the ICCPR, the government did not clarify this crucial point. The experts reminded the US delegation, you never used think this way: the US said it went to war in Iraq for human rights violations in Kuwait. Now that wasn’t your territory, was it? Yet you felt duty bound to guard their human rights.

The experts reasoned patiently with their eccentric charge: What if everyone thought that way? Any state could get away with anything then. The experts missed the point. Getting away with it is the US government’s raison d’être.

Exasperated, the Committee experts pulled out the rulebook: Vienna Convention on the Law of Treaties, Article 31. A state may not interpret treaties to defeat their object and purpose. The head of the US delegation explained: the parties interpret this treaty, and we’re a party; here we are, interpreting the treaty! And we’re interpreting the Vienna Convention too, and we don’t think we’re defeating anything. Hard to argue. Maybe that’s how it was in their treaty with Wonderland.

But the Committee interprets their covenant too. Their General Comments provide authoritative guidance to countries and courts worldwide. Ten years ago the Committee thought they settled it once and for all. Paragraph 10 of their General Comment said that a state is accountable for the rights of everyone in its power. For the US government, that’s everybody in the world: just sum the arrogated powers of illegal surveillance and extra-judicial killings and arbitrary detention and torture under secret law. The state’s duties expand with its power. You can see why US martinets might not like that.

The Committee experts also highlighted a cheap trick of longer standing: the so-called ‘non self-executing’ treaty. Asserted in the original US reservations to the ICCPR, the effect is to give the state’s victims the run-around. The executive maintains it cannot act until Congress writes the treaty into law. By signing the treaty and forgetting it, the government hopes to keep human rights protections out of the courts, permitting wholesale US derelictions of state duty that the Committee called ‘systemic.’

The courts play along with an elaborate ruse they call the Charming Betsy canon. In the Charming Betsy case Chief Justice Marshall wrote:

An act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.

As human rights and humanitarian law began to threaten the prerogatives of the state, US courts struggled to contain this new threat to autocracy. Judges declared it relevant only when domestic law risks foreign policy disputes. They applied it solely to foreigners. They applied it only when US law breaks the law of nations in an ambiguous manner. As international law began to constrain US state conduct, judges tried to neuter Justice Marshall’s doctrine. Stung by rebuke of US aggression in Nicaragua v. United States of America, Reagan nominees on the Ninth Circuit Court court ruled, “In enacting statutes, Congress is not bound by international law; if it chooses to do so, it may legislate contrary to the limits posed by international law.” Now, with US law setting off a worldwide shitstorm of foreign policy disputes, judges find themselves hiding from Charming Betsy.

The courts’ Charming Betsy charade works only by ignoring a century-old Supreme Court decision, the Paquete Habana, which makes treaties equivalent to federal statute and makes state and federal common law incorporate conventional international law such as the Universal Declaration of Human Rights.

When the Committee exposed government subterfuge or rubbed their nose in Charming Betsy, the US delegation would fall back to a pose of wistful regret: if only we had the political winds at our back, they sighed, we could comply with our treaty obligations. But without access to the courts, without Congressional authorization… The Committee has long been on to them. Looking at US reservations in 1995, the Committee concluded: ‘taken together, they intended to ensure that the United States has accepted only what is already the law of the United States.’ The experts mocked the government’s pretense of ‘helplessness,’ and told them, maybe you’re trying, but you’re failing, and you clearly need help from your courts.

US delegations traditionally show up with a happy-clappy rainbow of oppressed minorities. The message is that though we lock them up, exterminate them, torture them, and kill them, you must admit we offer them advancement. In keeping with the president’s position as minority mascot of the oligarchs, his delegation was a Disneyland pavilion of contrived diversity: provincial sectarians and indigenes in a plethora of skin tones, duly roseate and grateful for their preferment. In an intriguing innovation, they showcased a member of IAOHRA, the government’s tame human rights NGO. Like the reds of old, IAOHRA moles infiltrate the government, spreading a homeopathic US version of human rights focused exclusively on anti-discrimination.

The deep state’s always there with CIA’s scripts to curb the giddy naifs of Foggy Bottom’s DRL romper room. But this time inner-party elements broke cover. America’s Stasi, the Department of Homeland Security, was well-represented and well-briefed on the rationale for its atrocities.

The Department of Justice was there to parrot the party line: constitutional rights are identical to human rights, therefore we comply. The Justice Department reconciles domestic and international law when the courts can’t quite negate the law of nations. It fell to the government’s lawmen to explain why the US hounds an accused tax cheat with quadruple-jeopardy extraditions while refusing extradition, for genocide, of its bloodthirsty Bolivian puppet ruler. Justice also stood up for extra-judicial killings at home, piously reminding us that extra-judicial killings by police upset the killer policemen, too. Most police don’t kill innocents, the Justice lawman said. That’s scant comfort for the twinkling innocents of Occupy, on whom it’s evidently open season.

The US Justice watchdogs spoke for the NSA secret police. They insisted FISA’s not as abject as it seems. Except in ‘true emergencies,’ the government asks FISA for permission. It just so happens that the true emergency of the government’s 9/11 own-goal has gone on for more than a decade. If all of NSA’s insatiable demands get approved, it’s not because FISA is a rubber-stamp. It’s a tribute to the diligence of the NSA privacy officer. It just goes to show how gosh-darn meticulous he is. They said it with a straight face, too.

The Committee asked if NSA’s overseers tested their reform plans against Articles 17 and 19. Did anyone acknowledge the peoples’ rights to privacy and freedom of expression? (Well no, as it turns out, our self-appointed guardians of freedom think your rights are crap.) But the Justice delegates proudly pointed to the public outrage caused by the disclosures of their public enemy number one, Edward Snowden. The exposure they viciously suppress might prompt reconsideration. And who knows, it might do – if the government cannot catch Snowden and torture him and attack his honor and reputation and put him away in a scripted show trial and make him bow and crawl like a POW in Hanoi, like they did to Manning.

Amid ponderous American-accent jokes, Justice had the best laugh line: “No one understands discrimination like Eric Holder.” Indeed, Holder studied it in depth in his feckless attempt to whitewash the findings of King Family versus Jowers. State liquidation of the Kent State dissidents came up in the review but the Committee tactfully declined to mention how the government deals with its anti-discrimination gadflies.

The Defense delegate was a General Gross, a fat-headed commissar who oozed contempt for the Committee. With the saturnine relish of the villain who knows that Bond cannot escape, Gross explained what his war machine was up to. Gross told the Committee, it’s none of your business, this is war. It’s strictly a matter of humanitarian law. Awkwardly, international humanitarian law defines the crime of persecution in terms of fundamental rights, and in the established framework of international law it is a war crime to abolish, suspend or declare inadmissible in a court of law the rights and actions of the nationals of the hostile party. International tribunals are required, and their judges are selected, to interpret international humanitarian law consistent with human rights. Good luck teasing them apart.

In Gross’ global war on unspecified individuals to be determined, no courts or counsel are required. The state deigns to offer captives a ‘personal representative’ and even lets them hire counsel of their choice (tough luck if you can’t pay.) Under the Geneva Convention of 1949, depriving protected persons of the rights of fair and regular trial is a war crime. In the fair and regular trials of the Guantanamo penal colony, defense counsel is silenced. Judges who insist on evidence are apt to disappear.

The life and death power of the state hinges not on proof beyond reasonable doubt but on ‘commander near-certainty.’ The troops engage in double-tap bombings as terrorists do, and mop up rescuers and mourners who almost certainly deserve to die. If the state repents of a killing, it compensates bereaved survivors ‘ex gratia’ – the troops might choose to tip them to console them. Contrary to popular belief, Gross explained, not all adult males are marked for death. It is indeed possible for a male of military age to be a non-combatant. You’re only a combatant until proven innocent. Once the troops kill them, then, of course, they’re combatants.

The Committee carped about some exigencies of the fair US regular trials. Hearsay is admissible. Defendants may not challenge it. Testimony coerced by torture is permitted if the captors deem it reliable and probative.

The US government maintains that if the CIA wanted to ship a captive off to Africa, let’s say to have slits cut in his penis, there’s nothing in the ICCPR to stop them. That means your Committee is meddling when it presses for non-refoulement – when we farm the torture out to our pet dictators, that’s not your department. Just because you prohibit torture that doesn’t mean you can micro-manage how we do it. That’s insane, of course, as a Swiss expert noted with great tact. And it’s of more than hermeneutic interest, since the funny business hasn’t stopped. The Obama administration refouled three hapless pawns to Algeria last year. They told the Inter-American Commission on Human Rights to butt out, too.

The foreign treaty bodies often have difficulty understanding a subtle distinction between human rights and the civil rights Americans enjoy. Human rights, that’s trying to stop torture. Civil rights, that’s Obama Justice bureaucrats putting up a barricade of tyrannical whimsies to thwart the torture victims: state secrets; official immunity; lack of subject-matter jurisdiction; no common-law right of action. But, the experts asked, bewildered, if, as you say, you’ve stopped it all – torture, disappearance, black prisons, it’s history – Why is it still secret?

In a frank acknowledgement of Obama’s puppet-ruler status, the delegation said their head of state seeks declassification of state secrets. He can kill, torture, or detain anyone indefinitely without court review, but to execute the law against official crime he has to play a demeaning mother-may-I game with parties unknown.

The Committee may be incredulous, but Americans understand. The deep state’s foundational impunity law is The Central Intelligence Agency Act of 1949. Decisions of the CIA Director to protect against unauthorized disclosure or to meet so-called special requirements “shall be final and conclusive and shall not be subject to review by any court.” This is why one (1) torturer is in prison (and he got in trouble for murder, not torture.) This is why John Kiriakou is in prison for exposing torture. This is why the state makes judges of its torturers: to keep accountability at bay. General Gross boasted of the hundreds of enlisted proles they’d locked up or scolded for venial war crimes, but the Committee Chair made the point that the question is not who is charged, but who is not. At Nuremberg they prosecuted lawyers. Regarding David Margolis’ Schutzhaft memos for the richly-named Office of Professional Responsibility, the Special Rapporteur on Counter-terrorism and Human Rights wrote that US legal doctrine is a rehash of the Nazi superior-order defense aimed at “practically shielding from criminal and disciplinary responsibility all those involved in what appears to be a joint enterprise leading to widespread and systematic violations of Article 7.” In other words, a crime against humanity. US legal experts who’ll come out and say so, like Francis Boyle, are rusticated, censored, and even forbidden to fly.

The delegation asserted their good faith. The state has decreed a stern warning: don’t do it again. Attorney General Holder has tried and tried to see if he can prosecute the ones that got away, but he just can’t. It’s hard to prove guilt beyond a reasonable doubt when the torturers can destroy evidence and obstruct justice without fear of any court. The Committee suggested that it might be easier to prosecute torture if the US made it illegal. The Justice delegate pointed proudly to a state/local/federal crazy quilt that, taken together, prohibits most of the various things you could do to torture someone. America has oodles of torture laws, more laws than you can shake a stick at. Why, you could charge a torturer with menacing, or stalking. You could catch her at a civil rights violation – if the torture is unusual by US cruelty standards.

About those standards. In the US it is cruel but not unusual to subject captives to solitary confinement. The US government has got 80,000 of them slowly going crazy. The UN Special Rapporteur on Torture, appointed by the world, has determined that more than 15 days of solitary confinement is torture. Some black dissidents have been locked away in solitary since the bygone days of we-shall-overcome. In its majesty, the state shows mercy. They let out one 80 year old two weeks before his death. Or they may let you out and force you to take drugs. The Special Rapporteur on Torture calls for a global ban on the production of these neuroleptic zombies but this government’s still churning them out. Then there’s Taser torture. Our extra-judicial electrocution death toll stands at 60. There’s that 14 year old girl Tasered in the groin, with no one charged. For minor offenses in Michigan or for most anything you do in prison, electric torture is your judge and jury.

The Chair of the Committee had more questions. What about mental torture? The US took pains to leave big loopholes for psychological torture when it ratified the Convention Against Torture. You can’t be in compliance with human rights law, the Chair said, if you permit mental torture. And, he asked, do all your many makeshift torture laws have statutes of limitation? Torture is among the gravest crimes. International humanitarian law rules out such limits on the most serious crimes. For war crimes in the US war on terror, or for crimes against humanity worldwide, the world condemns escaped torturers to run or hide until the day they die. Under Eric Holder’s aegis a government torturer careful in his methods need only lay low for three years.

The US delegation’s rote boilerplate response was something out of Kafka. The Committee made modest suggestions for airing the claustrophobic penal maze of the US. The US could sign an optional protocol allowing the Committee to consider individuals’ petitions. The Chair suggested that the US adopt it and let victims of the state invoke the standards of the ICCPR. Or the US could permit an independent National Human Rights Institution in accordance with the Paris Principles. For that matter, US membership in the Organization of American States gives its citizens access to an inter-American human rights commission – the US could hear its treaty body out. Needless to say, this will not happen. US citizens may not escape the state, no matter what it does. North Koreans can more easily escape to a sympathetic world.

The Committee noted the US government’s reverence for law. The government lawyers preened but it wasn’t praise, it was a caution.

The ICCPR is binding, and supreme law of the land under Constitution Article VI. But painstaking state indoctrination of US functionaries has produced a uniform reflex response: US experts draw a sharp distinction between domestic law and international law.

Human rights law is domestic law. Humanitarian law is domestic law. The civil resistance movement is slowly building legal precedents for citizens to denounce and impede government crimes and enforce human rights including the right to peace. Yet federal judges are carefully vetted and selected for visceral hostility to this idea. Lower-level judges and magistrates are not so carefully groomed, so civil resisters prefer them as a venue – the law and the facts readily convince open minds. But for now, the most damning resisters – Snowden, Manning, Kiriakou, Assange, the exiles and prisoners of conscience – are most effective as human rights defenders.

The US judicial system obstructs international law in defense of a dominant-class culture that fights any constraint on state power. The Committee is looking beyond US law, as law becomes a weapon of the state against its people, looking at the sick and brutal society this state has brought about.

Hundreds of thousands of violent gun crimes each year. Effective impunity for brutality and murder by militarized police. Carceral schools with zero-tolerance policies for disabled children. Hospitals making hostages of migrants’ sick children by withholding care to force disclosure of their immigration status. H2 visas that supply a sprawling industry of labor and sexual exploitation, with ‘victim-centered justice’ that arrests 100 sex workers for every trafficker that’s charged. The 34,000 migrant souls that must be rounded up each month by law. Indigenous peoples poisoned by uranium mining on the lands to which they had been herded. Executioners faced with international revulsion and resistance overcome the resulting poison shortage with help from fly-by-night compounders, and subject a struggling human sacrifice to a quarter-hour of strapped-down asphyxiation. A blind, paralyzed youth who grew up chained to concrete floors steeling himself against false hope of compassion: “You will leave me. Everybody does.”

This state has organized its subject population around sadistic torment of the weak. In pursuing cruel, inhuman and degrading treatment, the Committee found a cruel, inhuman and degrading society. When the Committee Chair spoke of laws that make a crime of the homeless person’s destitution, you could feel him try to keep from blurting, What is wrong with you people?

Don’t blame us. Our state’s a cancer that’s metastasized to sicken every fiber of our being.

We need to be cured of our state. And we’re getting treatment. The ICCPR review is one small part of the world’s concerted intervention. The Inter-American Commission on Human Rights is on the case despite our government’s resistance. In August, the US comes under examination for its compliance with the ICERD anti-discrimination convention. In September, the Human Rights Council accepts civil society reports for the Universal Periodic Review of the US, including the economic, social, and cultural rights that the US acknowledges internationally but frantically suppresses at home. In November the Committee Against Torture reviews US compliance with the Convention Against Torture.

It might all be too late. This state is out of control. Checkups and inspections will not stop it. The cancer’s far advanced.

The Committee’s Concluding Observations signal its alarm. Their first concern: The US government should interpret the Covenant in good faith.

As a formal priority the Committee gave the US government one year to report on its actions to remedy four particular derelictions:

- Gun violence;

- Detainees at Guantanamo Bay;

- NSA surveillance; and,

- Accountability for past human rights violations.

A sort of triage for the government’s disgrace. It’s nothing that the government hasn’t heard before, but some of it is new to us, the victims. The Committee’s surveillance recommendations cut through NSA’s technical trivia and contempt for the human beings they interfere with. They put the President’s pretense of reform to shame:

The State party should:

(a) take all necessary measures to ensure that its surveillance activities, both within and outside the United States, conform to its obligations under the Covenant, including article 17; in particular, measures should be taken to ensure that any interference with the right to privacy complies with the principles of legality, proportionality and necessity regardless of the nationality or location of individuals whose communications are under direct surveillance;

(b) ensure that any interference with the right to privacy, family, home or correspondence be authorized by laws that (i) are publicly accessible; (ii) contain provisions that ensure that collection of, access to and use of communications data are tailored to specific legitimate aims; (iii) are sufficiently precise specifying in detail the precise circumstances in which any such interference may be permitted; the procedures for authorizing; the categories of persons who may be placed under surveillance; limits on the duration of surveillance; procedures for the use and storage of the data collected; and (iv) provide for effective safeguards against abuse;

(c) reform the current system of oversight over surveillance activities to ensure its effectiveness, including by providing for judicial involvement in authorization or monitoring of surveillance measures, and considering to establish strong and independent oversight mandates with a view to prevent abuses;

(d) refrain from imposing mandatory retention of data by third parties; and,

(e) ensure that affected persons have access to effective remedies in cases of abuse.

Human rights or impunity, Which will it be? We have to choose. The US adopted the Lieber Code in 1863. The Hague Convention has been the law for more than a century. The world has been refining and codifying the Nuremberg Principles for 75 years. You wouldn’t think these need to be repeated in the civilized world. But the Committee found it needed to invoke the rules for dealing with a criminal state.

The State party should ensure that all cases of unlawful killing, torture or other ill-treatment, unlawful detention, or enforced disappearance are effectively, independently and impartially investigated, that perpetrators, including, in particular, persons in command positions, are prosecuted and sanctioned, and that victims are provided with effective remedies. The responsibility of those who provided legal pretexts for manifestly illegal behavior should also be established. The State party should also consider the full incorporation of the doctrine of ‘command responsibility’ in its criminal law and declassify and make public the report of the Senate Special Committee on Intelligence into the CIA secret detention programme.

They left unsaid what it might take to root out such pervasive rot.

Brian Littlefair is the author of Desert Burial. As a consultant specializing in foreign direct investment he worked with foreign joint ventures, international financial institutions and bilateral aid agencies, with volunteer work in food security, transparency, and human rights in the global south. Read other articles by Brian.