There’s a place called the Devil’s Pulpit in the Berkshires in New England. It’s a basket of rock at the top of a cliff with a crag shaped like a snake’s head craned out over nothing. Nathaniel Hawthorne went up there long ago, back when the Whigs were on the wane. Not long after, Hawthorne moved away, sick to death and languid and dispirited. No doubt he was susceptible to morbid thoughts – he imagined what it’s like to learn that every pious word they’ve taught you is a filthy lie.
It’s best not to think about politics up there. Last time I went up, there were three black vultures preening on the serpent’s head not ten feet from where I sat. They were so quiet, it took minutes before I saw them looking at me. Makes a strong impression when you’re all alone up there.
What a great way to manifest yourself, if you’re the devil, as black vultures. Carrion birds won’t hurt you. They only eat what’s dead, like cast-off faith and trust and admiration. Nice touch, being triune, too, as father, son and who knows what, in the jokey way the devil has of parodying sacred absurdities.
This was no portentous sermon. The big one hissed and the little one screeched a bit. Demonic possession is great – no voices or intrusive thoughts, you just enjoy a brainstorm and take credit.
So, sitting there like Goodman Brown, when he calms down and thinks it through. Everybody comes here. What could all these humans have in common that’s so awful? What’s this unspeakable secret that everyone keeps? I had one of those inspirations of horrid blasphemy: it’s rights and rule of law, universal to mankind yet utterly secret. Here in America, public life must never be defiled by universal law and rights. Law and rights show our patriotic exploits through the victims’ eyes. That takes our sacred things and makes them dirty, with all the power of the old oath, Bloody Mary.
The election was everywhere below, an inescapable miasma. It’s said to be important in America. It’s called democracy, the thing that makes us good, and it’s imaginary, just like god. How to desecrate that sacred thing? Just stop pretending. Hold our pointless choices to the standards of the outside world, with rights and rule of law. Obtrude the secrets that Americans aren’t allowed to know.
Let the sacrilege begin. To the candidates let’s apply the minimal standards of the civilized world. They fail spectacularly, bloviating in swinish contempt for the commitments America has made supreme in its own law. Most ordinary voters are less ignorant of presidential duties and commitments. Who cares which candidate is better, if none of them make the cut?
And what about the man who’s now doing the job, and wants to keep it? Job evaluation means a checklist, and none of this nonsense about character and greatness, only work rules. Does the incumbent president measure up? But perhaps it demeans the dignity of office to treat him like other any working stiff. Let’s hope so.
What happens when we vet a presidential candidate in the commonest, most fundamental ways? First, we make sure he’s not a criminal. Before they would let me play angel of mercy in Africa they took my fingerprints, to be sure that I was not the sort of person that would molest needy children or rape powerless women. Fair enough. We’ll do a background check on the incumbent. We’ll set the bar as low as we can, and look only at peremptory norms. Peremptory norms are the bedrock expectations of the civilized world, the law of intolerable, inexcusable transgressions.
Let’s begin our background check with the Convention Against Torture (CAT), supreme law of the land under Article VI of the Constitution, signed by President Reagan and ratified October 27, 1990. CAT Article 12 requires:
Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.
On January 11, 2009, President Obama said, “We need to look forward as opposed to looking backwards.” As a matter of policy, the incumbent president does not want his subordinates to “spend all their time looking over their shoulders and lawyering.” Breaking Article 12 makes Obama Torturer in Chief.
Now in America we’re encouraged to pound our chests and cheer torture of helpless captives as a badge of patriotic courage. In our generally censorious culture, we’ve been inoculated with ambivalence to view torturers as athletes with chalk in their cleats, heroically toeing the line as they pitch out of bounds. You don’t see the sort of hysteria that attaches to, say, sex offenses, where some simpleton pees out of doors or gets a crush, and he’s judicially branded for life, hounded from place to place by mobs of frantic parents. Makes you wonder what it would take to make outrage trump cruelty. Which atavistic impulse would prevail if the President of the United States were presiding over sexual torture?
Well, we’re going to find out. It seems that something adverse has turned up in the incumbent’s background check. A compromising photo.
Rape. We don’t tolerate that. That’s why we had to bomb Serbia and Libya. Under Article 1 of the Torture Convention, official acquiescence to torture is an essential element of the crime. Executive acquiescence goes beyond obstruction of justice: it makes the president an outlaw everywhere, subject to universal-jurisdiction law with no statute of limitations. President Obama is Rapist in Chief, ensuring impunity for the rank-and-file of torture, who hold the captive women down and squeeze their breasts and fuck them. And not only women but boys. President Obama oversees the gingerly don’t-ask-don’t-tell for soldiers whose orientation is to anal rape.
In extenuation it is said that President Obama is afraid of his subordinates. Dean Christopher Edley of U.C. Berkeley Law School recounted a meeting that ruled out prosecution for fear of a revolt by the government’s torture bureaus.
However, that cuts no ice under Torture Convention Article 2, paragraph 2:
No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
The US government wished this clause away in its 2006 report to the UN Committee against Torture – all’s fair in war, America maintained – but the Committee affirmed the consensus of the world that nothing can justify torture.
The Committee pointedly cited sexual humiliation as a breach of US obligations under the CAT. The world knows what our government did. The world has seen the photographic fact of that woman bent over for rape. The world has seen the photographic fact of a naked shackled captive with an object thrust up his anus.
The Committee wrote:
The State party should ensure, in accordance with the Convention, that mechanisms to obtain full redress, compensation and rehabilitation are accessible to all victims of acts of torture or abuse, including sexual violence, perpetrated by its officials.
The Committee remarked that the US is hiding from the Special Rapporteur on Torture. Our state has kept the Special Rapporteur at bay, but the Committee against Torture was not so easy to escape – we agreed to its oversight in signing the Convention Against Torture. The international experts confronted the United States with the chapter and verse of its obligations, in stark contrast with its conduct. Merely reading our commitments aloud to us paints a mortifying picture of the United States as a barbarous throwback state.
The United States of America is an enclave where jus cogens, the essential rudiment of civilization, does not apply. The United States signed the CAT with reservations that unlawfully undermine its purpose, and with meaningless declarations meant to hedge its restrictions on the state. Americans lack federal torture statutes that afford us the protections of the Convention. Our laws hem torture round with qualifiers that make much torment officially OK. We don’t enforce the laws on torture when we delegate it to servile satellite states or secret dungeons. We illegally exempt our high officials from the law.
The better to torture its victims in peace, the United States government refused to sign the International Convention for the Protection of All Persons from Enforced Disappearance – but the Committee pointed out that every prisoner we disappeared is a per se breach of the Torture Convention.
In breach of Article 10, America ensures that its troops and police wallow in brutish ignorance of the universal law on torture. In defiance of Article 14, America denies redress to torture victims: our state refuses torture victims’ recourse to the Committee against Torture, and drowns their appeals in bureaucratic mire at home.
America institutionalizes torture in Supermax isolation. For the public at large, in insouciant contempt of the historic horrors of electrical torture – the archetypal symbol of totalitarian crime – our state issues instruments of electrical torture to civilian police nationwide, who use them with impunity for punishment and restraint.
The US government has not yet released its fifth Periodic Report to the United Nations Committee Against Torture, due November 19, 2011. It promises lively controversy on the campaign trail as the US reports to the Committee, answers its questions, and publishes the conclusions of the independent international experts. (( N.B. Broken link: sometime after January 20, State took down this handy listing of recent torture and human rights reviews.)) Or so one would think. Surely voters will be anxious to learn if their most urgent concern has been addressed: at the outset of the Obama administration, the question voted highest on change.gov was,
Will you appoint a special prosecutor ideally Patrick Fitzgerald to independently investigate the greatest crimes of the Bush administration, including torture and warrantless wiretapping.
Clearly the answer is no. We shall see if the electorate takes no for an answer.
President Obama is self-evidently in violation of Torture Convention Article 12. But at least he stopped the torture, right?
Ask Gulet Mohamed, tortured in Kuwait on President Obama’s watch, with US officials on the spot to take away his rights, under threat of worse to come.
It’s only getting worse. With the knowledge and approval of the President’s federal security bureaucracy, local police departments are institutionalizing Israeli techniques for CAT-illegal torture and degradation with a nationwide program of “law enforcement education.” The non-violent dissenters of the occupy movement have already been subjected to the signature abuses of Zionist repression: nerve damage from hours in tight restraints; the arbitrary violence of Shamir’s infamous “force, might, beatings;” use of tear gas canisters as lethal projectiles.
All right, then. Inarguably, President Obama is a criminal: hostis humani generis, enemy of all mankind. But perhaps we ought to look at the whole person. Maybe he behaves a little better with respect to aggression. After all, aggression is the highest of all high crimes, and a hanging offense, for the Nazis we caught – America hallowed the principle at Nuremberg. As UN General Assembly Resolution 3314 (XXIX) stated:
No consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression. A war of aggression is a crime against international peace.
Oh dear, tsk, tsk. Our little background check turns up a problem here too. President Obama waged illegal war in Afghanistan and Iraq. His continuing war in Afghanistan was not authorized by the relevant UNSC Resolution, 1368 (2001). Use of force in this case breaches Articles 46, 48 and 51 of the United Nations Charter, supreme law of the land under Article VI of the Constitution. The now-covert war he commands in Iraq similarly flouts UNSC Resolution 1441, which authorized no use of force. The UN Secretary General termed our war on Iraq illegal.
The wars Obama started are no better. US use of force in Yemen and Somalia is undertaken without UN supervision, in direct breach of UN Charter Chapter VII. Pakistan publicly denounced the US for a ‘deliberate act of aggression’ when President Obama commanded an armed attack on defense forces inside Pakistan.
In Libya, President Obama overstepped the objectives of UNSCR 1973 (2011). The objectives are crucial because use of force is illegal when not under UN supervision. Disregarding the scope of the no-fly zone, President Obama destroyed civilian infrastructure and defensive emplacements in Sirte and elsewhere in support of one combatant faction, interfering with national self-determination in breach of UN Charter Article 2.4. In using, force President Obama aborted African Union efforts at pacific settlement of disputes, required by the supreme law of our land: the Kellogg-Briand Pact and UN Charter Chapter VI.
Illegal use of force against Iran will be laid to President Obama’s account as well. His common plan or conspiracy to commit crimes against peace, the precedent of Count 1 at Nuremberg, is deniable for now, plausibly or not, but evident in partial execution, and complete.
The last time the United States went to war with Iran, in the largest naval battle since World War II, our leaders ran afoul of the law. The International Court of Justice (ICJ) called the US attack disproportionate and unjustified by necessity. We ran to the UN and cried self-defense, but the ICJ rejected that claim. Our first war on Iran has been ruled an act of aggression. Our new war, with its unsolved murders and mysterious explosions, raises sticky issues in the evolving doctrine of state responsibility for intentionally wrongful acts. President Obama has put the poisoned chalice to his lips. We’ll see if he drinks.
So Obama’s an aggressor too. Well, perhaps he keeps his nose clean once he gets into an illegal war. Let’s apply humanitarian law. While America has run from the accountability of the Rome Statute, its provisions merely institutionalize universal-jurisdiction humanitarian law. So President Obama may get off scot-free on Rome Statute Article 8.2.c.iv, for the extra-judicial execution of Osama bin Laden when rendered hors de combat by detention. But he’s still on the hook for the equivalent crime under universal jurisdiction. The prohibitions come from the Geneva Conventions and the Hague Convention, to which our state is party. In fact, the Hague Convention relaxed American law a bit, as murder of prisoners was a capital offense under Military Order 100. In the case at hand the evidence is clear – we took that woozy mugshot of the captured invalid Osama right before we shot him. Then there’s Rome Statute Article 8.2.a.i, which criminalizes the willful killing of civilians Abdul-Rahman al-Awlaki, along with 90 per cent of our Pakistani drone-war casualties.
Crime goes to the applicant’s character, you might say. With a position of trust in a criminal state, crime is a purely notional embarrassment, and easy to suppress, in America’s cult of personality – but soon legal exposure may be more than an annoyance for elder statesmen craving society’s esteem. Late last year, in ICC-02/05-01/09, the pre-trial chamber of the International Criminal Court denied immunity to heads of state. The decision leaves plenty of wiggle room for executive lips and shysters like Gonzales and Koh, but it reflects the world’s resolve to end impunity.
For peaceful little countries, it’s great sport to shoo our criminal elder statesmen with the law. Mischievous Swiss lawmaker Dominique Baettig chased George Bush away with public recognition of torture charges. Fortunately for our diminutive warlord, planned protests afforded a face-saving security pretext for his flight from justice. Lawyers Against the War gave it a whirl in Canada. Naturally the charges sank without a ripple in America’s servile snowbound hinterlands, but the meticulously documented charges promise lots more fun. They’ll throw the same book at ex-president Obama. CAT Article 12 makes it his crime, too.
When his turn comes, the charges are likely to be lurid. President Obama doesn’t merely fail to investigate torture, he has his diplomats obstruct independent efforts to redress it. When Spanish Judge Baltazar Garzon took up the case of one of Spain’s own torture victims, as the law requires, the US government “fought tooth and nail” to obstruct Garzon’s investigations. To keep official torturers out of reach of the law, the Obama administration disappears charges as well as human beings, perverting justice at home and abroad.
Torturer, aggressor, war criminal. Clearly, rule of law is not Obama’s strong suit. But, as legal wizard Johnny Cochran said, let’s not rush to judgment. What has he done for me lately? That is how we’re taught to think.
Let’s stick with what we are entitled to demand, that the candidate honor the commitments and obligations essential to a sovereign state: our universal human rights. Take minimal civil and political rights, as guaranteed by the International Covenant on Civil and Political Rights (CCPR), supreme law of the land.
Patriotic brainwashing keeps that legal fact repressed deep in Americans’ subconscious. No one in America holds presidential aspirants to the standards of the civilized world. What does sometimes happen is wistful evocation of a less demanding standard, our quaint old long-gone Bill of Rights.
Still it’s easy to pile up annals of despotic overreach. Conor Friedersdorf reels off 14 outrages. Collectively they make a mockery of CCPR Articles 9, 6, 17, 19, 12, 14, 10, and 16. There are many hapless victims beyond Friedersdorf’s myopic view – Gulf States inhabitants, Occupy dissidents, debtors, and people of color – and they might add Articles 1, 7, 11, and 21 to the civil and political rights that have gone through President Obama’s shredder.
Partisan dead-enders maintain that despite the President’s high crimes and overt contempt for civil and political rights, the Democratic alternative offers certain social and material advantages. At this point it would be a waste of time to take the pathetic scraps on offer and systematically compare them to the minimal requirements of the Covenant on Economic, Social, and Cultural Rights (CESCR). That test reveals the piteous and terrible failure of a puffed-up corporate puppet. He shrinks shyly from state duties to respect core rights, and fails utterly to protect our human rights from corporate depredations. But in search of some indicative examples, let’s measure the pleadings of a random Democratic loyalist against the relevant human rights standards.
Achievement: “Obama has overhauled the food safety system.”
Well, that is certainly worth doing. Article 11 of the Convention on Economic, Social and Cultural Rights states:
The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed:
(a) To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources.
Our ruling class won’t ratify that covenant, so technically, the President is not on the hook for his gross derelictions: lip service to government duties respecting freedom from hunger, and servile negligence that allows corporate interests to destroy fisheries and foodstocks. With America’s Gulf Coast fisheries poisoned by corporate malfeasance, the FDA underestimates the toxicity of Gulf Coast shrimp by four orders of magnitude. The US government permits Monsanto to impose the “substantial equivalence” doctrine, muzzling scientific inquiry into food safety. To test the food that patent monopolists force-feed us, Americans have to depend on Chinese research. And in fact, the Chinese have found an insidious taint. The Obama administration is colluding with pesticide producers to forestall independent pesticide research. As the censorship continues, commercial interests exterminate bees and the plants that they pollinate worldwide.
Achievement: “Advanced women’s rights in the work place. Ended Don’t Ask, Don’t Tell in our military. Stopped defending DOMA in court. Passed the Hate Crimes bill. Appointed two pro-choice women to the Supreme Court.”
More insulting scraps of rights. At the outset of his term the president had the majority to sign and ratify the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), codifying comprehensive rights and impelling them with an international framework of independent review. He did not. The president shares the US Government’s provincial compulsion to reinvent all wheels and agonize over bad imitations of the world-standard protections accepted everywhere else. It’s more than stubborn ignorance – it’s fear of any world consensus that our rulers can’t control.
“Expanded access to medical care and provided subsidies for people who can’t afford it. Expanded the Children’s Health Insurance Program. Fixed the preexisting conditions travesty [and rescissions] in health insurance.”
Let’s look at what our president’s job is, if he claims to head a sovereign state: CESCR Article 12:
1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:
(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;
(b) The improvement of all aspects of environmental and industrial hygiene;
(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;
(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.
The President’s medical tinkering seems to be a feckless stab at paragraph 2(d). In the event, the President undermined the proven approach of monopsony health-care procurement and delivered a captive market to predatory corporate middlemen. Here again, we have lip service to government duties and utter failure to protect.
Achievement: “Invested in clean energy. Overhauled the credit card industry, making it much more consumer-friendly. While Dodd-Frank bill was weak in many respects, it was still an extremely worthwhile start at re-regulating the financial sector. He created a Elizabeth Warren’s dream agency: The Consumer Financial Protection Bureau. He’s done a lot for veterans. He got help for people whose health was injured during the clean-up after the 9/11 attacks.”
A motley ragbag that falls apart under cursory examination. Not a hint of the duties of the state. You can sell rubbish like this with a straight face if you can keep Americans ignorant of world standards. Civil law is historically more cognizant of state duties, and most other nations are attuned to evolving international norms, but Americans are educated as provincials. In terms of the Universal Declaration of Human Rights, the state has failed if you don’t know your rights. But to fanatical theocrat Gary North and his holy electoral vanguard, protecting humans from the overreaching powers of states is “giving equal time in society to the devil.” Americans’ backward ignorance is actually sacred.
What’s more, all that financial boasting invites review in light of the Convention Against Corruption (CAC), supreme law of the land. CAC Articles 18 and 19 address trading in influence and abuse of functions. Our government has told international reviewers that existing federal law prohibits abuse of function and trading in influence. Our government admits that it has not reviewed the effectiveness of that law. So the blatant and ubiquitous sleaze of public life turns out to be a crime! But corruption is a vital institution here. The graft of contending lobbyists, that’s our sole remaining check and balance. It is all that’s left of our state. So when the sordid story of bank reform is told, President Obama may not even be able to say, with the hapless villain Richard Nixon, “I am not a crook.”
And they want me to go to the polls and vote for this. They actually expect my consent-of-the-governed seal of approval for a criminal despot who can’t even make the trains run on time, and for the failed state that horked him up. Let his party die off like the Whigs. No, I want what I’ve got coming: rights and rule of law. No party gives me that. Saying so desecrates everything that’s sacred to this purulent police state. It’s blasphemy to hold the state to any standards. That’s how you learn that every word they tell you is a filthy lie. It is Satan’s irresistible lure : Now are ye undeceived.
Come, devil, for to thee is this world given. Hail the New World Order. Blasphemy is powerful. Satan’s old and wise. He knows depraved institutions always have a sanctifying rite. Defile it – nothing happens, but the institution’s power is gone. The pedophile church has a solemn rite: you must eat cheap pulpy bread and make believe it’s flesh. The crucial rite of the United States is the election, a travesty of futile choice. You must make believe you’re choosing what you want. To profane it breaks the brittle spell. Stop taking the host, and the priests can’t rape your child. Stop casting your vote, and the troops can’t rape that terrified woman that they’re gripping by the hair.