You know, I hear people say, Well, civil war this, civil war that. The Iraqi people decided against civil war when they went to the ballot box. And a unity government is working to respond to the will of the people.

— George W. Bush, August 7, 2006

Well, then, good to hear that’s been cleared up.

Maybe next we can all have a vote on the nuclear arms race, or perhaps the Second Coming of Jesus.

(Via Reason November 2006, and Crooks and Liars 2006-08-07.)

(Link via Le Revue Gauche 2006-10-14.)

But remember, it doesn’t really count as torture unless a government lawyer decides that it’s bad enough to count.

In a new court filing on behalf of alleged dirty bomber Jose Padilla, his lawyers allege that government interrogators forced him to take LSD, Gerstein reported.

Additionally, Padilla was given drugs against his will, believed to be some form of lysergic acid diethylamide (LSD) or phencyclidine (PCP), to act as a sort of truth serum during his interrogations, he quotes the filing.

— Justin Rood, TPMmuckraker (2006-10-12): Is U.S. Government Using LSD for Interrogations?

I have no way of knowing how credible Padilla’s specific claims are. But I do know this:

… in 2002, Justice Department lawyers carefully considered the issue and advised the White House that it was okay. In their view, it was acceptable to force detainees to ingest mind-altering substances, as long as it was not intended to cause months-long bouts of serious mental illness.

How do we know that? Because in August 2002, the Justice Department gave then-White House counsel Alberto Gonzales a 50-page document saying so. And a follow-up document in 2004 reaffirmed it.

The now-infamous 2002 Bybee Memo was leaked to the press in 2004, at which time the administration quickly disavowed it. (In December 2004, Justice released a new version of guidance for detainee treatment.)

For nearly two years, the Bybee Memo was the administration’s guiding document for how detainees were to be treated. The document which replaced it does not appear to substantively alter its conclusions on forced drug use by detainees.

In the 2002 Bybee Memo, then-Assistant Attorney General Jay S. Bybee (now a federal appellate judge) concluded that giving detainees mind altering substances (that’s a commonly used synonym for drugs, he noted for the squares in the White House) was legal, as long as doing so did not cause prolonged mental harm by disrupt[ing] profoundly the senses or personality, and was not intended to do so.

Bybee wrote that conditions such as months-long bouts of post-traumatic stress disorder or even chronic depression could be considered prolonged mental harm. As for what constituted a profound disruption of senses or personality that would cause such long-term suffering, he included:

• the inabliity to retain any new information or recall information about things previously of interest to the individual.

• deterioration of language function, e.g., repeating sounds or words over and over again;

• impaired ability to execute simple motor activities, e.g., inability to dress or wave goodbye;

• inability to recognize and identify objects such as chairs or pencils despite normal visual functioning;

• the onset of ‘brief psychotic disorder, in which a detainee suffers psychotic symptoms, including. . . delusions, hallucinations, or even a catatonic state [which] can last for one day or even one month;

and more. (These examples, of course, are in no way intended to be an exhaustive list, Bybee noted.)

Oh — and for this to constitute torture, the government handler who’s forcing drugs into the detainee has to specifically intend to cause prolonged mental harm, according to Bybee.

— Justin Rood, TPMmuckraker (2006-10-13): LSD Mystery: In 2002, Justice Dept. OK’d Dosing Detainees

Please bear in mind that this government has no particular qualms about forcing psychotropic drugs on prisoners against their will, if they find it useful to deliberately destroy the prisoner’s sense of reality in the course of an interrogation, just as long as the psychotic break that they force on you wasn’t specifically intended to be more prolonged than a government lawyer thinks it ought to be.

Welcome to life in Red State America.

Further reading:

• GT 2006-05-11: Free Carol Fischer! State of Ohio puts a political dissident into psychiatric confinement
• GT 2002-08-10: Judge Doumar has made his ruling; now let him enforce it.
• GT 2002-06-11: An Important Update from the War Information Council

If you were listening to Morning Edition on NPR a couple of days ago, you had a remarkable opportunity to hear the Banality of Evil demonstrated concretely for you, within your own earshot. I’m talking about Steve Inskeep’s interview with John Yoo, a former lawyer for the Bush administration. Here are some of his remarks on the recently-passed Star Chamber law. I’ll reprint them, but you really must listen to Yoo to understand it fully–there is no way to convey the sheer blandness of Yoo’s plain-spoken, calm explanation and apologetics for the most despicable sort of Stasi-statism.

Inskeep: Now [if you’re a citizen accused of being an enemy combatant] you can challenge your status in court, but if you lose that, are you entitled to a trial, as a U.S. citizen?

Yoo: No, and that’s something that the Supreme Court made clear two years ago, is that if you are an enemy combatant, there is no constitutional requirement that you get a criminal trial. You can be held until hostilities are over.

Of course, the rules for imprisoning enemy soldiers were developed in a context where hostilities meant wars between two or more particular States, which had declared beginnings and definite endings. How long will it take for these hostilities, which are part of an undeclared global war waged against a vaguely-specified enemy with no identifiable central authority, and pursued with no defined conditions for victory, for surrender, or for truce, to count as over? But we’d best hurry along. Now that you are being held, quite possibly until you die in prison….

Inskeep: Now what if you’re a non-citizen, what happens then? Same scenario. The government has some suspicions about you, they think you’ve done something, they arrest you, they say you’re an enemy combatant, you disagree. What can you do?

Yoo: Well, first, according to the law passed by Congress last week, I’d have the right to go to what’s called a combatant status review tribunal, which is set up by the Defense Department, where I’d have a hearing, where I could challenge the evidence against me, that I’m an enemy combatant.

Oh, well then. That sounds reasonable enough.

Inskeep: –Wait, let me stop you for a second. When you go to that hearing, do you get a lawyer?

Yoo: I believe you don’t get a lawyer. You have representation from an officer, but not necessarily one who’s a military lawyer.

Oh.

Inskeep: And when you say that you could challenge your detention, how would you gather evidence to show that you’re not an enemy combatant?

Yoo: Well, first you can tell your own story, and also I think you would have the abliity to see unclassified evidence against you, and to challenge it.

Um.

Inskeep: You said unclassified evidence. So classified evidence, that the government says, We have evidence against you and we can’t share it with you, that’s the end of the story?

Yoo: I believe so. I believe that classified evidence is not provided to the defendant. It’s not even provided under the military commissions, or often in civilian trials, even, for terrorism or spying.

Well.

Inskeep: If you’re an enemy combatant, who decides if you ever get a full-blown trial–a military commission trial as it’s been called?

Yoo: That’s ultimately up to the President. I think it’s still up to the President and the Secretary of Defense who’s going to be tried by a military commission.

Inskeep: The government will decide that when it’s in the government’s best interest, a trial will be held, and when it’s not, the person will be held without a trial?

Yoo: That’s right.

Full stop.

Then Inskeep asks the next question.

Inskeep: Do you think it’s inevitable that some people who are innocent are going to end up in this system, spending years and years at Guantanmo Bay?

Yoo: There’s no perfect system. I agree, Steve, there’s always the chance that there will be people who are detained who are not enemy combatants. The same is true of our criminal justice system. There’s no doubt that we have people in the criminal justice system who are innocent. That’s why we have all these processes, that’s why we have all these appeals levels, is to try to correct any mistakes that were made, and prevent errors.

Inskeep: You said there’s always the chance. I mean, isn’t a certainty, especially given that some cases have already been found, to be almost indisputably cases of people who were innocent being held at Guantanamo for a long time, or held elsewhere.

Yoo: I would say, look, in wartime, there’s always going to be people who might be picked up. It’s also the case in wartime that you have mistaken targets attacked and people killed by accident. But my only point is that you also have that in the criminal justice system. No system is going to be perfect.

Inskeep: Do you, as a lawyer who’s worked in the Bush administration, and obviously thought about these isues, think that this law does everything possible to prevent error?

Yoo: Well, I think we could probably do a lot more, but it would be a lot more expensive. I think what we have here is something that’s very close to the civilian system.

Inskeep: Are you saying it would be too expensive to give habeas corpus protection to non-citizens?

Yoo: Yeah, I think that’s what Congress decided when it passed this law last week, is that, you could have the possibility of hundreds and hundreds of habeas corpus proceedings, and they do impose a cost. They impose a cost on our judicial system. They impose a cost on our government, on our military. Think about… you’d have to pull in witnesses in from abroad, you’d have the cost of potentially releasing classified information… all this process does have a cost on our system. It’s not free.

Inskeep: John Yoo is author of War by Other Means, which is out this week.

Good night, and good luck.

Chris Clarke’s post on yesterday’s political developments is very good and very important. Something I hope to have something intelligent to say about later. For right now, though, I wanted to thank Chris for leading me to something I’ve been hoping to find for for a while now. Specifically, an online recording of Mario Savio‘s speech on the steps of Sproul Hall, during his time in the Berkeley Free Speech Movement. After the speech, Savio joined about 800 people from the assembled crowd to face arrest in a nonviolent sit-in against the arbitrary arrest of their fellow student Jack Weinberg:

We were told the following. If President Kerr actually tried to get something more liberal out of the Regents in his telephone conversation, why didn’t he make some public statement to that effect. And the answer we received–from a well-meaning liberal–was the following. He said: would you ever imagine the manager of a firm making a statement publicly in opposition his Board of Directors? That’s the answer. Well I ask you to consider: if this is a firm and if the Board of Regents are the Board of Directors, and if President Kerr is in fact the manager, then I’ll tell you something: the faculty are a bunch fo employees, and we’re the raw materials! But we’re a bunch of raw materials who don’t mean to have any process upon us, don’t mean to be made into any product. don’t mean to end up being bought by some clients of the University–be they government–be they industry–be they organized labor–be they anyone. We’re human beings!

There’s a time when the operation of the machine becomes so odious, makes you so sick at heart, that you can’t take part–you can’t even passively take part. And you’ve got to put your bodies upon the gears and upon the wheels, upon the levers, upon all the apparatus, and you’ve got to make it stop. And you’ve got to indicate to the people who run it and the people who own it that unless you are free, the machine will be prevented from working at all.

— Mario Savio (December 2, 1964), on the steps of Sproul Hall, at the University of California at Berkeley

No, this hasn’t anything in particular to do with anniversaries.

The Court of Star Chamber was a court of law which evolved from meetings of the king’s royal council. Although its roots go back to the medieval period, the court only became powerful as a separate entity during the reign of Henry VII. In 1487 the court became a judicial body separate from the king’s council, with a mandate to hear petitions of redress.

In a sense the court was a supervisory body; its members oversaw the operations of lower courts. As well, its members could hear cases by direct appeal. Members of the court were either privy councillors or judges drawn from the courts of common law.

The mandate of the court expanded under the Tudors to include instances of public disorder. Judges would receive petitions involving property rights, public corruption, trade and government administration, and disputes arising from land enclosures. Under the leadership of Thomas Wolsey and Archbishop Cranmer, the Court of Star Chamber became a political weapon for bringing actions against opponents to the policies of Henry VIII, his ministers and his Parliament. Although the court was initially a court of appeal, Henry VIII and his councillors WoIsey and Cranmer encouraged plaintiffs to bring their cases directly to the Star Chamber, bypassing the lower courts entirely.

Although the court could order torture, prison, and fines, it did not have the power to impose the death sentence. Under the Tudors Star Chamber sessions were public.

The power of the court of Star Chamber grew considerably under the Stuarts, and by the time of Charles I it had become a byword for misuse and abuse of power by the king and his circle. James I and his son Charles used the court to examine cases of sedition, which, in practice, meant that the court could be used to suppress opposition to royal policies. It became used to try nobles too powerful to be brought to trial in the lower courts. Court sessions were held in secret, with no right of appeal, and punishment was swift and severe to any enemy of the crown.

… Finally, in 1641 the Long Parliament abolished the hated Star Chamber, though its name survives still to designate arbitrary, secretive proceedings in opposition to personal rights and liberty.

— Tudor Place: The Court of Star Chamber (1487-1641)

Although the Court of Star Chamber did not itself have the power to order torture for gathering evidence, other commissions under the power of the Crown did, and testimony extracted under torture was often used against prisoners brought before the Court. The power of imprisonment included the power to throw convicts into prison at the King’s pleasure, to remain incarcerated indefinitely as long as the King wanted.

Mr. Hallam, who wrote most authoritatively of the English Constitution said that the course of proceeding in the Star Chamber seems to have nearly resembled that of the chancery. … The Star Chamber was established to secure good government. … The Star Chamber’s powers were directed towards preventing riots and unlawful assemblies. … In the Star Chamber there was no indictment. … In the Star Chamber there were no witnesses, and the evidence was produced in writing and read to the council. … In the Star Chamber there was no trial by jury. … In the Star Chamber the council could inflict any punishment short of death, and frequently sentenced objects of its wrath to the pillory, to whipping and to the cutting off of ears. … With each embarrassment to arbitrary power the Star Chamber became emboldened to undertake further usurpation. … The Star Chamber finally summoned juries before it for verdicts disagreeable to the government, and fined and imprisoned them. It spread terrorism among those who were called to do constitutional acts. It imposed ruinous fines. It became the chief defense of Charles against assaults upon those usurpations which cost him his life. From the beginning it defied Magna Charta in denying jury-trial, in forcing men to incriminate themselves, or what is scarcely less repugnant to reason, to manifest their innocence. … At last with the inhuman punishment administered by it to Prynn, Burton and Bastwick, the people long cultivated by the constitutional lawyers of England procured its abolition. Can the chancery courts of this country expect to escape appropriate discipline when the time shall arrive that the eyes of the people shall see that these courts have habitually over-ridden the laws of the land?

…

… For nothing relaxes objection and silences criticism upon usurpation so much as the creation of a condition which strengthens the Must-do-something policy. Nothing has helped the employer so much in the plainly lawless and forbidden use of the writ of injunction as that condition of violence which he so loudly deplores. …

— Edgar Lee Masters (1904): The New Star Chamber

The past is never dead. It’s not even past.

— William Faulkner, Requiem for a Nun