Beyond the Law


“On January 27th, President Bush, in an interview with the Times, assured the world that “torture is never acceptable, nor do we hand over people to countries that do torture.” Maher Arar, a Canadian engineer who was born in Syria, was surprised to learn of Bush’s statement. Two and a half years ago, American officials, suspecting Arar of being a terrorist, apprehended him in New York and sent him back to Syria, where he endured months of brutal interrogation, including torture. When Arar described his experience in a phone interview recently, he invoked an Arabic expression. The pain was so unbearable, he said, that “you forget the milk that you have been fed from the breast of your mother.” —From: “Outsourcing Torture, The Secret History of America’s “Extraordinary Rendition” Program,” by Jane Mayer (Feb. 8, 2005)


The above quotation, as well as others listed throughout this article, describes the ‘new paradigm’ currently employed by the Bush administration. This phrase, coined by Alberto Gonzales during his tenure as White House Counsel, relates, among other things, to the use of extreme and ‘extra-legal’ methods of interrogation employed to break down detainees for the purpose of gaining potentially valuable information. The shift to this ‘new paradigm’ includes a growing emphasis on the direct application of torture by American military and C.I.A.personnel, as well as by agents acting on behalf of the U.S. in foreign countries.

There are various aspects to this ‘new paradigm’. The policy of using foreign enforcers to implement practices of interrogation which are illegal in the U.S., called ‘extraordinary rendition’, is one. It involves the transportation of detainees to another country where torture will be used, in order to circumvent the legal requirements of American constitutional law and due process.

The history of American use of ‘extra-legal’ methods for extracting information from people did not just begin on Sept. 11, 2001, although it has expanded greatly since then. Jane Mayer, in a powerful article published recently in the New Yorker, documents the history of this practice which began in the nineteen-nineties. All of the quotes below are taken from her article.

“In 1995, (Michael) Scheuer, (a former C.I.A. counter-terrorism expert who helped establish the practice of ‘rendition’), said, “American agents proposed the rendition program to Egypt, making clear that it had the resources to track, capture, and transport terrorist suspects globally — including access to a small fleet of aircraft. Egypt embraced the idea…” Technically, U.S. law requires the C.I.A. to seek “assurances” from foreign governments that rendered suspects won’t be tortured. Scheuer told me (Jane Mayer) that this was done, but he was “not sure” if any documents confirming the arrangement were signed.”

“A more elaborate operation was staged in Tirana, Albania, in the summer of 1998… Over the next few months, according to the (Wall Street) Journal, Albanian security forces, working with U.S. agents, killed one suspect and captured Attiya and four others. These men were bound, blindfolded, and taken to an abandoned airbase, then flown by jet to Cairo for interrogation.”

“The U.S. began rendering terror suspects to other countries, but the most common destination remained Egypt. The partnership between the American and the Egyptian intelligence services was extraordinarily close.”

The ‘new paradigm’ named by Alberto Gonzales does not just involve the use of torture, however, in relation to suspects having links to terrorism. The ‘war on terrorism’ has justified other practices which also form part of this paradigm, including the illegal detention of persons for unlimited periods of time without due process of law, abandonment of rules of the Geneva Conventions, and other abridgments of international and constitutional law. The mentality of being ‘beyond the law’ has also created a new category of persons called ‘illegal enemy combatants’ — people who are not protected by any legal process or standard while being held indefinitely at U.S. bases. One attorney, formerly in the General Counsel’s office of the C.I.A.says about this:

“As a society, we haven’t figured out what the rough rules are yet… There are hardly any rules for illegal enemy combatants. It’s the law of the jungle. And right now we happen to be the strongest animal.” —John Radsan, Professor of Law at William Mitchell College of Law in St. Paul, Minnesota

Another expression of non-accountability to existing legal standards comes from the Vice-President himself:

“A lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies, if we’re going to be successful. That’s the world these folks operate in. And so it’s going to be vital for us to use any means at our disposal, basically, to achieve our objective.” —Vice-President Dick Cheney on “Meet the Press,” five days after the Sept. 11th attacks on the World Trade Center and Pentagon.

Finally, from Michael Scheuer, former C.I.A. counter-terrorism expert who helped establish the practice of ‘rendition’ and who left the agency in 2004:

“Since September 11th, as the number of renditions has grown, and hundreds of terrorist suspects have been deposited indefinitely in places like Guantánamo Bay, the shortcomings of this approach have become manifest. “Are we going to hold these people forever?” Scheuer asked. “The policymakers hadn’t thought what to do with them, and what would happen when it was found out that we were turning them over to governments that the human-rights world reviled.” Once a detainee’s rights have been violated, he says, “you absolutely can’t” reinstate him into the court system. “You can’t kill him, either,” he added, “All we’ve done is create a nightmare.” —From Jane Mayer’s Outsourcing Torture, The Secret History of America’s “Extraordinary Rendition” Program. (Feb. 8, 2005).

We are moving, as a country, in a dangerous direction that increasing numbers of observers have written about. This direction has been called various things: unilateralism (1), hegemony (2), full spectrum dominance (3), global imperialism (4), a ‘state of exception’ (5) among them. It involves a willingness to exist beyond the law, exempt from both international and constitutional constraints, adhering to no one else’s standards but our own, brought about by the necessities of the moment or by plans for the future. This movement is not complete, nor is it left uncountered by voices and principles that are the touchstones of democracy — principles which still seek checks and balances to run-away power and which still feel keenly the importance of upholding individual rights.

Nevertheless, this trend, which did not just begin with the Bush administration but has expanded greatly in the last several years, is becoming more deeply embedded within American policy. Some say the trend began with the dismantling of the Soviet Union and our movement into the status of being the only remaining superpower in the world. Others say it began even earlier, after World War II, when our demonstrable strength in being able to kill and destroy, placed us out of range of other nations due to our singular power.

Our present claimed exemption from the law, both international and constitutional, includes, but is not limited to:

  • the use and direct application of torture (See also: Claims of torture in Guantanamo Bay), or its application through third parties as described above
  • rejection of the jurisdiction of the International Criminal Court
  • rejection of the rules of the Geneva Conventions and especially those that relate to the treatment of prisoners of war
  • allowance, as a consequence of the above, of the abuse and illegal detention of detainees at military prisons in Guantanamo and elsewhere,
  • allowance, also as a consequence of the above, of the infringement of rights of civilians in Iraq, most notably the right of protection, glaringly demonstrated in the assault upon Fallujah,
  • justification of what Belgian philosopher Lieven de Cauter has called a permanent ‘state of exception‘ in which the government does not abide by the law but rather creates it as it goes along.

Such a shift toward the use of ‘extra-legal’ means to fight a ‘war on terrorism’ has been supported by all kinds of justifications, especially from those serving in the White House Counsel’s and Attorney General’s office. One of the primary justifications was offered by current Attorney General Alberto Gonzales who, in a now famous memo written while he was still White House Counsel, stated:

“the war against terrorism is a new kind of war” and “this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.” (Jan. 25, 2002)

The memo pushes to make al Qaeda and Taliban detainees exempt from the Geneva Conventions’ provisions on the proper, legal treatment of prisoners.

Historically, we learn from Mayer’s article that the ‘new paradigm’ actually began in discrete and selected areas of counter-terrorist activity during the nineteen-nineties, at a time when ways were being sought to locate persons and groups associated with terrorist attacks, both here and abroad. From 1995 on, through the practice of ‘extraordinary rendition’ described above, the United States became able to extradite suspects to a foreign country in order to gain access to information through means that could not be legally employed within theU.S. The country of choice for extradition at that time was Egypt. In pursuit of known terrorists, individuals suspected of affiliation were transported there to become subject to Egyptian agents and methods of interrogation, which often included torture. Since that time, the implementation of this policy continues to include Egypt, but has expanded to include more situations and additional countries to which detainees have been secretly transported.

Today, it is almost commonplace to see in the news, new facts and stories related to extra-legal detainment of foreign nationals who, after being released from custody, or in certain rare instances as revealed to their attorneys, describe what happened to them. A case in point is that of Mahar Arar, referred to above. Arar is suing the U.S. government for his mistreatment. “They are outsourcing torture because they know it’s illegal,” he said. “Why, if they have suspicions, don’t they question people within the boundary of the law?”

Others, too, have revealed shocking facts concerning the use of illegal practices within American military bases such as Guantanamo, and have described their own experience of secretive extradition to countries whose brutality they have encountered first hand. Many such stories are emerging among news sources today, making it clear that in the name of ‘national security’, the ‘state of exception’ is becoming more widespread.

Nevertheless, despite this increased exposure, these ‘extra-legal’ practices continue to find ongoing justification in the counsel of those who advise the Executive, and especially through loopholes that can be found in existing legislative language.

For example, there is the loophole developed by John Yoo, formerly Assistant Attorney General in charge of the Justice Department’s Office of Legal Counsel, which designates a new class of persons called ‘illegal enemy combatants’ who are different than ‘prisoners of war’. This new classification removed individuals in this group from the protection of the Geneva Conventions, allowing them to be locked up for years without legal counsel, without contact with their families, and without corroborating evidence. Nine such ‘enemy combatants’ — British citizens held at Guantanamo for a period of years — were subsequently released by the White House due to pressure from the British government for their release, and due also to reportage by the detainees themselves of practices of abuse and torture while being held at the military base. Five were released in March, 2004; four in January, 2005. Of the nine released, upon returning to Britain, all were set free without charge, due to insufficient evidence against them.

The designation of this new category of persons not covered by the Geneva Conventions is shocking in its own right since it impinges upon fundamental human rights. It has also generated a large number of people for whom there is now no legal protection and no legal recourse. At present, the U.S. government does not know what to do with them.

Another loophole, written into 1998 legislation, stated that it is “the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial (italics mine) grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States.”

Efforts to circumvent this legislation have occurred along the following lines: As stated by Martin Lederman, a lawyer who left the Justice Department’s Office of Legal Counsel in 2002: “The Convention only applies when you know a suspect is more likely than not to be tortured, but what if you kind of know? That’s not enough. So there are ways to get around it.”

More recently, there has also been an attempt to redefine torture so that it does not focus on the experience of extreme pain or distress caused to the recipient or the motive of the abuser, but rather measures whether the harm done was “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” (See: Bybee Memo, 2002).

This loophole eliminated from the definition of torture, many practices that were both humiliating and emotionally devastating, while not likely to produce organ failure or death. Its assumptions guided the Bush administration for twenty-two months until public disclosures and outcry following the Abu Ghraib scandal caused rejection of its premises. Subsequent repudiation of this memo by the Justice Department took place in stages throughout 2004, and became official in December, 2004, when a new legal opinion was issued that superseded the August 2002 Memorandum entirely.

Danger in Our Midst

Within the cradle of democracy, we are in noticeable danger today, from something that sleeps fitfully within our midst. This something is the mentality of being ‘beyond the law’. It is an attitude that lies like a sleeping giant in fairy tales of old, that has begun to stir from its somnolent state and threatens grave consequences when it fully awakens. There are many hazards implied by this mentality. A central one is that this same orientation can, given sufficient circumstances that seem to warrant it, be turned against American citizens themselves, justified by the everpresent ‘war on terrorism’. Many feel that this movement has already begun, supported by the new permissions that are part of Patriot Act I and even more so of Patriot II. Both of these Acts have begun to disturb the sensibilities of numerous civil liberties advocates, who see in them grave consequences for the rights of individuals and the fundamentals of democracy.

All it would take in order for the giant to awaken would be fear of sufficient measure — fear of terrorists within our midst — to create the circumstances through which American citizens as a whole, could become suspect of terrorist activity and have their rights denied, as are the rights, currently, of many foreign nationals and often even of foreign-born American citizens. Such increased fear could turn the ‘beyond the law’ mentality of the present Administrative structure against its own citizens, in the name of ‘national security’.

Such an outcome would, indeed, require an event of great magnitude to take place to justify it — one such as a second terrorist attack which involved even greater loss of life than the first. If such an attack were to occur, it could then activate strict countermeasures on the part of the Administration — measures which are already in place — that would follow and expand upon the practices and policies described above. These measures, however, would no longer apply to just foreign-born suspects, but rather to American suspects and to people of every walk of life, who might be thought to have some affiliation with terrorist groups.

There is little doubt that the personnel and statutes are already in place which would allow the present Administration to respond in such a manner to a second, large-scale al Qaeda attack. In the wake of such an event, the power of the Executive would come into play and would give full authority to both the military and to the Dept. of Homeland Security during a state of ‘national emergency’, to initiate a full-scale response in order to cope with the situation. This ‘emergency status’ would be real, and efforts to create order would also be real and necessary. The problem with this scenario is that the mentality of being ‘beyond the law’ would allow those in power, especially at a time of crisis, to go well beyond the issue of national safety toward the justification of widespread abandonment of individual rights in the name of security, unrestricted by constitutional provisions or current law.

As witnesses to the current trend in policy regarding the conduct of the ‘war on terrorism’, it seems imperative for each of us to consider where we are in relation to the extra-legal measures that have already been taken by our government, and specifically in relation to the policy of ‘rendition’ and the practice of torture. Here are some questions to ask ourselves that may help articulate the beliefs and emotions we hold. Granted, that since we are dealing with them in the abstract, our actual responses to these questions might not be what we would feel in the moment in which these issues became personally relevant. Nevertheless, they are worth contemplating, however abstractly:

  • What would it take for me to condone torture? Do I reject it in all instances or only in some?
  • What if my child, brother, wife, or mother were abducted and were going to be executed, and someone currently held within federal custody was presumed to know where they were being held and when they would be executed, but refused to tell. Would I condone it under these circumstances?
  • What if my entire family were killed by a group of terrorists who had deliberately plotted to randomly kill people as a symbol of hate and of power. Would I condone it for one of this group, in order to gain access to the names of the other perpetrators?
  • What if a group of al Qaeda operatives placed a bomb in the center of the city that I live in, and tens of thousands of people who lived and worked in this city died. Would I be willing to allow torture of those who might know of the perpetrators, in order to find the ones who had committed this mass murder?

Answering these questions, even tentatively, allows us to view not only possible future behavior of government, but also present circumstances that we can choose to be aware of, out of which future behavior evolves. These present circumstances have been amply described, and as a way of learning to hold the light more strongly within ourselves, it is important to know with what truth, with what confidence, and with what trust we are ready to meet the ‘state of exception’ that is already with us.


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