Letters at 3AM: An Arbitrary Nation, Part 5

Illustration by Jason Stout

This is what the rule of law looks like:

"Italy's former military intelligence chief was sentenced to 10 years in prison ... for complicity in the C.I.A.'s abduction of an Egyptian Muslim cleric. ... [H]is former deputy ... [was sentenced] to nine years. ... Three Italian secret service officials were also sentenced to six years each" (The New York Times, Feb. 12).

In addition, 22 CIA operatives, including the agency's former Milan, Italy, station chief, were tried in absentia, found guilty, and sentenced (same article). A U.S. Air Force colonel was also found guilty, but later pardoned (The New York Times, April 6).

These cases were "the first in the world to scrutinize – and legally condemn – the American practice of rendition" (The New York Times, Sept. 19, 2012).

In addition, "[t]he European Court of Human Rights ruled that a German car salesman [Khaled El-Masri] was an innocent victim of torture and abuse, in a long-awaited victory for a man who had failed for years to get courts in the U.S. and Europe to acknowledge what happened to him. ... [S]everal other legal cases are pending from Britain to Hong Kong involving people who say they were illegally detained in the CIA program" (The Associated Press, Dec. 13, 2012).

This is what the rule of law does not look like:

"Officer Tied to Tapes' Destruction Moves Up C.I.A. Ladder" (The New York Times, March 28). Her name has been withheld because she is still undercover, but reportedly this officer was a CIA station chief in London and in New York, "and was once in charge of a so-called black site." (Black sites are secret CIA prisons where the U.S. tortures people.) She also "played a role in developing the C.I.A.'s detention and interrogation program," and she and her direct superior were responsible for the "destruction of dozens of C.I.A interrogation tapes" because they feared the tapes "might become public and expose the officers shown in them to jeopardy." The CIA obviously likes her work, since she lately has been acting director of the National Clandestine Service, the branch of the agency "responsible for all C.I.A. espionage operations and covert action programs. The head of the clandestine service is one of the most coveted jobs at the C.I.A." This officer was one of "a small group being considered to take over the job permanently" (same article). She is described as having "broad support within the agency" (The Washington Post, March 26).

Eight Italian intelligence officials, including their agency's director and deputy director, are in prison for doing the bidding of CIA operatives who prosper and rise to the top ranks for the same crimes.

In the end, the unnamed undercover officer did not get the coveted job. It was judged bad public relations to reward someone "who was at the center of the agency's detention and interrogation program" (The New York Times, May 7). But there is no evidence that the agency holds her in any less esteem. And she might well have gotten that plum post if a report by the Constitution Project hadn't been publicized while she was under consideration.

"A nonpartisan, independent review of interrogation and detention programs in the years after the Sept. 11, 2001, terrorist attacks concludes that 'it is indisputable that the United States engaged in the practice of torture' and that the nation's highest officials bore ultimate responsibility for it. The sweeping, 600-page report says that while brutality has occurred in every American war, there never before had been 'the kind of considered and detailed discussions that occurred after 9/11 directly involving the president and his top advisers on the wisdom, propriety and legality of inflicting pain and torment on some detainees in our custody'" (The New York Times, April 16). A Times editorial the same day noted that the report's "detailed 22-page appendix cites dozens of legal cases in which the United States prosecuted similar treatment or denounced it as torture when carried out by other countries."

But don't let a nongovernment report get you hopeful that our government will come clean. President Obama's administration has shut down the last of its tepid investigations into CIA abuses. "Not only have those responsible escaped criminal liability, but the administration has succeeded in denying victims of the harsh methods any day in court, using exaggerated claims of secrecy and executive power" (The New York Times, Sept. 5, 2012).

That's worth underlining. The Obama administration has neither sought justice nor permitted others to seek justice, shunting aside international law, United States laws, the Eighth Amendment's prohibition against "cruel and unusual treatment," the Sixth Amendment's guarantee of a "speedy and public trial," the Fifth Amendment's guarantee of due process, and the Fourth Amendment's requirement of warrants issued for probable cause.

When the highest office-holders in the land denigrate our laws for years on end, you may expect corrosion throughout the body politic.

For instance, in American prisons and detention centers, cruel and unusual treatment has become the norm, while throughout the legal system, courts have become nightmarish.

"The notion of a fair day in court becomes only theoretical when immigrants lack attorneys, as most do, when their deportation cases are not reviewed by judges, as too often happens, and when they are locked up in prisons unable to see their families, even though they have been accused only of civil violations – and many have never been convicted of anything. ... New federal data show that about 300 immigrants on any given day are held in isolation ... many for 23 hours a day, sometimes in windowless cells barely bigger than bathroom stalls. And nearly half are isolated for 15 days or more. Why ICE [Immigration and Customs Enforcement] resorts to such extreme punishment is unclear" (The New York Times, April 2).

The United Nations considers "prolonged isolation" cruel and unusual treatment, but on any given day in the U.S. "there are at least 25,000 prisoners in solitary. ... [M]any of those in solitary were put there for little more than irritating a guard" (The New York Times, March 16, 2012).

As for speedy trials: In New York City it takes "over 400 days, on average ... to bring a case to a jury trial and verdict – with cases in Brooklyn taking nearly 600 days" (The New York Times, May 1). Some defendants wait as long as five years in jail before they're tried (The New York Times, April 21).

It's widely documented that our Bill of Rights guarantees are breaking down in state justice systems across the country, and that what was always somewhat true is now taken for granted as ironclad: There is one rule of law for the affluent, a different rule of law for people with a little money, and, if you've got no money, God help you.

I keep remembering my deep sense of surprise when I read that in Italy, a director of military intelligence was sentenced to 10 years in prison and his deputy was sentenced to nine for cooperating with our CIA. I felt such relief that that could happen somewhere – a relief followed by a rush of grief. For, after years of White House and Congressional degradation of the Constitution, who can believe anymore that people of such rank, in such services, can and will be brought to justice in the United States of America?

You can find the rest of "An Arbitrary Nation," Michael Ventura's examination of the United States Constitution, here: Part 1, Part 2, Part 3, Part 4.