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high-profile arrest, or a mere handful of them, to chill dissent quickly in America.
We will see later how the Espionage Act, and political accusations of "espionage" and "treason," mean that we have
to consider the worst-case scenarios, so we can act in time to make them impossible.
If we don't act, we are one step away from leaving the company of free democracies nations such as the United
Kingdom, France, and Sweden and joining the ranks of such nations as Egypt, Morocco, and Pakistan.
Military Tribunals
Military tribunals are the enablers of a fascist shift.
Lenin responded to an assassination attempt by setting up secret military tribunals that bypassed the established
court system.69 Mussolini set up military tribunals to dispense summary justice. Stalin used a revived system of
secretive military tribunals that also bypassed the judiciary.
The Nazis also set up a tribunal system, "People's Courts," that bypassed the formal legal system. These courts had
originally been established as "an emergency body set up to dispense summary justice on looters and murderers" in
1918. These "courts" were able to sentence those charged with "treason" and were characterized by "the absence of
any right of appeal against their verdicts." The "will of the people" took the place of the rule of law."!
When the Nazis first came to power, not only was there still an independent judiciary in Germany there were still
judges outraged at SA and SS abuses of prisoners, and human rights lawyers who shared their outrage. Earlier, one of
these independent lawyers had actually sought to prosecute the SS for prisoner abuse. It was at that point that the
"People's Courts" went after the lawyers, the military tribunals were strengthened, and Hitler sought legislation that
retroactively protected the SS from prosecution for acts of torture.71 (The Bush administration seeks to shield
interrogators from prosecution for war crimes.)
This too opened the door for what followed.
To push an open society closer to a closed one, leaders establish state-sanctioned torturers. In a democratic society,
citizens can sue their torturers: Abner Louima, a Haitian immigrant to New York City, won nearly $9 million from the
Giuliani administration and the Patrolmen's Benevolent Association after members of the police department had
sodomized him with a broomstick while he was under arrest.72 The leadership was held accountable for torture.
But in a dictatorship, the torturers and those who defend torture are placed in charge of the law. At the request of the
CIA, then-legal counsel to the president Alberto Gonzales solicited the "torture memo" from the Justice Department.
After the Abu Ghraib scandal, Bush did not fire Gonzales, or turn him over to authorities to face criminal charges;
instead, he appointed Gonzales Attorney General of the United States of America.
The torturer was now in charge of the law.
Why torture?
It is hard to think of another policy goal that this administration has pursued with such single-minded focus as it has
legalized torture. Draft memos, a Supreme Court challenge, dozens of secret meetings, and finally a full-court press to
Congress: This team is trying very hard to establish a place beyond the rule of law where people can be tortured, and
has effectively succeeded.
You must ask yourself: Why? Why work so hard at this?
The administration gives several explanations: Bush claims that "harsh interrogation" helps investigators gather
intelligence. Law professor Alan M. Dershowitz supports the use of torture by raising the specter of a hypothetical
terrorist with information about a "ticking bomb."73 But the studies of the history of torture show that this is a
practically impossible scenario. Torture makes it less likely, as military leaders and FBI interrogators confirm, that
decent intelligence will come out of a prisoner's mouth. Torture is effective only at stacking up false confessions:
When Chinese interrogators in the 1940s tortured U.S. prisoners of war, the Americans' "confessions" were phrased in
Communist cliches.74 As Ratner puts it, "The 'intelligence' about terrorism and terrorists that is coming out of the
Guantanamo interrogations is . . . basically garbage." Many of the prisoners confessed to whatever their U.S.
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