Banning torture in U.S. courts

There was a court hearing to determine the sanity of Aafia Siddiqui yesterday. At least, that is what the various news sources seemed to be reporting on. Formally, it was a hearing for both the prosecution and defense psychiatrists to present their documents and reasoning on the fitness of Ms. Siddiqui to stand trial for attempting to kill U.S. government agents in Ghazni, Afghanistan. Informally, I think I was left wondering whether the U.S. justice system could deal with the case at all.

No, I'm not getting ready to pitch alternative justice. I'm not a big believer in the Military Commissions Act of 2006, I would like to see it repealed. President Obama's speech advocating a system of indefinite detention chilled me to the bone. And the trial balloon floated by Benjamin Wittes and Colleen Peppard made my blood boil. The U.S. judiciary has handled crises, criminal trials, trials with heavy political overtones, civil rights, human rights, corporate rights, and every other thing that has been thrown at it and remained resilient.

Torture eats at the court

But not this. I am increasingly of the opinion that there is no possible way for a U.S. court, based firmly on the rule of law, deriving its powers from common law, the Constitution, the U.S. code, and all the international laws, treaties, and customary law, a court in which due process is guaranteed to everyone without regard to background, and which strives to mete out justice and observe the innocence of the accused until proven guilty -- a court with such high ideals and aspirations -- no possible way to accuse someone of a crime and try them in this court, while there is an unspoken allegation that the government bringing the accusation has, in fact, tortured the defendant for years while holding them in conditions of enforced disappearance and incommunicado detention. Because the unspoken rule in a U.S. court of law is that the government bringing criminal charges against the accused has, itself, committed no crime against the accused, and certainly not one of the most heinous of crimes, one for which there is no affirmative defense at all. Whether or not the charges against the government are true, there does not seem to be any way to conduct a real trial when the government stands accused variously of incommunicado detention, torture with threats of death, possible killing of a child, nudity, rape, extreme isolation, and druggings.

First, there is the issue of her appearance in court. Ms. Siddiqui was brought into court by force yesterday. But this is the first time this was done. It wasn't important to have her at court for her arraignment, for her bail hearing, or for her hearing remanding her to Carswell for psychiatric observation. The first time it is totally necessary for her to come to court is when she faces a devil's choice: From her point of view, the prosecution seeks to imprison her for life, the defense seeks to drug her and imprison her for life. Whether or not she is sane, she ascribed her talkativeness to the fact that it might be her last opportunity to try to tell her side of her story -- as she put it, "I've seen people on the drugs, they can't talk."

How was she supposed to sound, and what should she have said or not said? If the charge of 'malingering', leveled at her by prosecution psychiatrists is true, it indicates she will say or do anything to avoid what? A conviction that would put her in jail for 30 years to life. The prosecution psychiatrists also say that recordings of her calls from Carswell to her brother Mohammed (did she know she was being surveilled, and does she have a right to?) indicated that she is fully cognizant of the charges and what is happening with the trial. A Ph.D. in neuroscience doesn't need to be told that a finding of 'psychologically unfit to stand trial' means either forced medication to produce fitness for trial, or indefinite incarceration. If she will take that risk to avoid trial, why would she not take any risk to say anything at all that she thought might help her case, once in front of the judge? Why then would her 'outbursts', no matter how 'rambling', be anything other than an attempt at the preferred outcome? How is it that a court can think of her as crazy when she interrupts them, and sane when she says things to psychiatrists?

In earlier court documents, one of the psychiatrists at Brooklyn MDC, had stated that she might be suffering from the effects of torture. There is a standard protocol for examining a victim of torture for psychological scars and effects. There is no record in any of the public information, certainly not in any news coverage, that the two words Istanbul Protocol were ever spoken in Judge Berman's court, that any of the five psychiatrists who testified at her competency hearing yesterday conducted tests according to that protocol, or that there is any intention of anyone connected with the court, not the prosecutors, not the FBI, not the judge, nor the defense counsel, nor any psychiatrists or anyone else, to follow through and determine, in a standard method used to begin investigation of the victim in case of an allegation of torture, whether or not Aafia Siddiqui has, in fact, been incarcerated or tortured.

Because determination of this fact is distinctly not part of the case, the case is allowed to stand in for others, and behaviors get interpreted as they are not. To begin with, although Aafia Siddiqui was for nearly 5 years the only woman on the al Qaeda top ten wanted list, she is not charged with any crime related to terrorism, the "war on terror", al Qaeda, or even the plot for which she was put on that list. She can't be. Any case that did consider the plot, supposedly a plot to cripple the nation's energy infrastructure by blowing up gas stations, would need to consider where that plot came from. But using that plot in court requires a discussion of how the information of the plot came to be known, and that implies dealing with information obtained from Khalid Sheikh Mohammad, which, since February, definitively involves torture and black sites. So the plot is only mentioned in reference -- only in the complaint and not in the actual charges does any reference to terrorist plots occur, and only in a document supplied to the judge by the prosecutor, asking the judge to consider the case as being linked to that of Uzair Paracha is her relationship to the actual plot participants mentioned.

Detailing how the information was obtained would pinpoint when it was that the manhunt for Aafia Siddiqui began, and that would lead to consideration of when she disappeared, March 29, 2003, a few weeks after Khalid Sheikh Mohammad was captured and rendered to a black site for torture. Since the prosecution psychiatrists testified that Ms. Siddiqui told them she was back and forth from Afghanistan to Pakistan during the intervening years, again we are stuck with a choice: We can believe the words of this woman as sane and fit for trial, and believe her statement of whereabouts to the psychiatrist and the FBI, and then we will have to believe that the FBI could not find one of the ten most wanted persons in the world, and the Pakistani ISI and military had no idea of her whereabouts, while she worked at a college in Karachi. Or her ex-husband, who contends the family secretly kept her around Karachi to maintain the fiction that she'd been disappeared. Does he also dispute FBI information that she had re-married? That information was also taken from Khalid Sheikh Mohammad, so maybe he does. Or we can believe what she has consistently, along with her family, told others for at least a year, which is that she was abducted on March 29, 2003 by agents and incarcerated, while she was on the way to the train station in Karachi. Take your choice. And remember, this is someone the FBI contends will say anything to anybody in order to secure her freedom.

Next, we can believe that she was picked up with handwritten notes on July 18, 2008, detailing biological and chemical WMD attacks in the New York area. The defense psychologist has argued that the notes prove she is delusional. They detail all sorts of theories on how to create germ weapons -- crazy theories -- going after only people who eat chicken, creating a germ that only attacks adults and not children. They are crazy because she has an undergraduate degree in biology, and a Ph.D. in neuroscience, and knew more than that about germs. When did she write these notes? Many believe that she was under U.S. control at the beginning of July, 2008. That was when Yvonne Riddley and Moazzam Begg began making noises about Prisoner 650, the Grey Lady of Bagram. Pressure grew when Imran Khan and Amina Masood Janjua joined the chorus, and then British Lord Nazim Ahmed, resulting in identifying Aafia Siddiqui with the Grey Lady, to the denials of the American military, which said there had never been a woman prisoner at Bagram. All of which happened before she was taken into custody on July 18, when a shooting occurred.

For this reason, bringing up the subject of whether or not she was incarcerated will bring up whether or not she was left in Ghazni by American or Afghan authorities to be found or killed. In which case did she write the notes in prison, or on the street corner where she was found? Because the Governor of Ghazni contends she was in pitiful condition when found, he photographed her in the famous shot that has had people contending she looks malnourished and abused. The FBI should remember to ask him if she had a pen, and how old the notes were.

Which brings us up to the circumstances of her arrest. It was convenient for Larry Neumeister to write his pieces in twos after her court hearing yesterday. The first, shorter pieces, went out on the wire, where news agencies the world over were waiting for news of the case, and quickly found their way into print in Pakistan and elsewhere. They mysteriously neglected to mention she'd been shot. That came in the follow ups, the more complete articles, after many papers went to print elsewhere in the world. But that's the case. And the FBI and CIA, and all U.S. officials contend they had no idea where she was until the day they came to interrogate her -- the day she was shot, July 18, 2008. But they also contend she was a "'treasure trove' of information on al Qaeda". She was shot and flown to Bagram hospital, where she underwent surgery, which had her still weak from bleeding and infection on her first court date in early August. During the time she was in the hospital, she was restrained, she was in a brightly lit room, and there was an FBI agent there the entire time. After that, she was on the plane, where the FBI again contends she was coherent and talkative, and then in Brooklyn MDC.

So let's talk again about torture. In the small. What was her treatment during those two weeks when she had the only opportunity, according to the FBI timeline, to be a "treasure trove" of information about al Qaeda? And was she then sane during that time? Then why the incoherent, crazy notes at the time of arrest? And what of the arrest? The Ghazni police had contended that she did not grab a gun and fire, that she only approached the Americans, to complain about her treatment in Afghan custody, and they panicked and shot. The Governor of Ghazni did not consider her to be dangerous, his assistant was shown in pictures he took (including the famous one) trying to get her to remove her burqa. He served tea to her and to her son on a couch at his residence. He took a picture of her, which her husband, in some of the same story the psychiatrist relied on to corroborate her whereabouts before 2008, contends was taken after a domestic dispute in Boston. It would seem that her husband's testimony is being relied on only because it makes investigation of the allegation of detention and torture unnecessary, and that Leslie Powers believes it because she can change her testimony to one of malingering from one of 'depressive psychosis'.

Is A Justice System that Systematically Avoids Torture Mentally Competent?

The effort that is being expended to prevent so much as one verdict of torture in the United States is incredible. In this particular case, it is distorting everything about the case. In the related case in Pakistan, the Pakistani government has been ordered to provide for Aafia Siddiqui's defense, negotiate her return to Pakistan with the U.S., and to determine the whereabouts of her children. Oh, yeah, the children. The eldest of those children has spoken in an interview and recalls being moved about, being incarcerated, and being shackled. Perhaps he and his mother, and his family, and Moazzam Begg, Binyam Mohamed, Nazir Ahmed, and others are just collectively hallucinating the incarceration. Perhaps they are all delusional. Except that the number one supposedly delusional person in all this is the very one that the U.S. government contends is sane. Because otherwise they might have to explain how she got that way. So she is 100% sane, but her 'outbursts' in court are delusional. And torture as a word, as a deed that should require investigation, has been banned from all American courts. And extreme isolation, which has a collection of symptoms three of which are exhibited by behavior corroborated both by the characterization of her court appearance and by psychiatrists for both prosecution and defense, is not a candidate for those symptoms no matter what the law of parsimony might say.

Or even if the outbursts from the FBI, the CIA, the President, the court psychiatrists, and everyone else sound delusional and 'rambling. Binyam Mohamed will eventually get his pictures, I have no doubt that the ACLU and Clive Stafford Smith will make sure of that. As for Aafia Siddiqui, the only child whose whereabouts is known is in Pakistan, while her defense and prosecution lawyers decide which kind of incarceration to put her in for the rest of her life. Of course she chose to speak out in court, no matter what she sounded like, no matter what people thought. Anything else would have been a Sophie's choice. And the government and her lawyers should recognize that, and do what they can to re-establish the rule of law in District Court. Until they bring torture into a court room in the United States, perhaps it is the government which is not competent for trial.

Update:

Benjamin Weiser of the New York Times has got a hold of a letter written by Aafia Siddiqui that the court released after the hearing. Since the letter is marked by the author as personal and confidential and not for the public, it is strange that it should be released by the court, even stranger that this is the sole piece of primary material made available to the public by the press and the court from this hearing. Mr. Weiser characterizes it as a rambling screed against the Zionists/Jews. To be frank, the letter is anti-Semitic, blaming the conflict between America and individuals and countries in the Muslim world entirely on Israel and the Jews, and asserting that "history repeats". But why is no mention made of the long paragraphs opposing war, or the part that reads (after blaming most everything on Israel and the Jews),

...of the kind that are kidnapping people from overseas with children and even babies!), torturing them directly and using their little children as a tool of torture -- or -- simply brainwashing simple-minded youth by pretending to be religious scholars and giving anti-American verdicts...all this in an attempt to make them say/do/write something that can be used to foment war between the US and their otherwise allies (such as the people of Pakistan and most other Muslim countries in the middle-east)...This is true! I am a first-hand witness/victim to this horrible game! It is the sheer favor of my and your GOD, and none other, that I am still "around" and able to write this.

Anti-Semitism is not evidence of attempted murder, nor justification for torture. So while it is certainly true that it is offensive, Mr. Weiser does a disservice to the truth to fail to point out that it is the anti-Semitic and conspiracy theory tone of the letter, and only that, which makes it seem at all insane. If that were the case, there are plenty of people on the internet who fit both those criteria. And paranoia and dread of conspiracies are, as well, on Dr. Grassian's list of symptoms of extreme isolation (along with hallucinations, poor impulse control, and oversensitivity to stimuli). And while Ms. Siddiqui's comments are being cherry picked for all that might offend, in the center of the letter is the allegation, still unanswered by either the government or by news organizations like the one Mr. Weiser works for, that Aafia Siddiqui was kidnapped and tortured by threatening or hurting her children.

The Torture Temptation

What I find most remarkable about America's debate regarding torture -- beyond the fact that such a debate could even be necessary in America -- is the continual recourse of both proponents and opponents to the question of whether torture works. I can't think of any other illegal behavior -- not murder, not rape, not kidnapping, not assault -- that receives this kind of rhetorical makeover. When a murder has been committed, you don't hear people agonizing over whether killing can never, ever be justified. When someone has been raped, people don't ignore the crime in favor of a discussion of whether a rapist's satisfaction could possibly be proven to outweigh a victim's trauma and horror. If a child is kidnapped, the airwaves aren't polluted with discussion of whether kidnapping might actually be an effective way of acquiring ransom money. And so on.

Torture, apparently, is different. Let's talk about why.

Unlike other crimes, torture has a constituency, in the form of the architects who created America's torture regime. These are the people who feed the public discourse with a steady supply of, "Can you really say that torture never, ever works?" And, "What would you do if your child were kidnapped and the kidnapper refused to reveal the child's location?" And, "How can you compare enhanced interrogation techniquing one terrorist to the 3000 people killed on 9/11?" Etc. The architects, and their media allies, know that as long as the talking heads of television and gatherers by office water coolers, literal and electronic, are discussing the morality and practicality of torture, they won't be talking about the illegality of torture.

But this supply-side explanation is only part of what makes torture different. The supply would have nowhere to go in the absence of demand. And the demand is what we most need to guard against. Purveyors of torture excuses will come and go, but our psyches will never change.

I believe some deep place in the human psyche is attracted to torture. A fundamental aspect of human nature is an abhorrence of powerlessness and a concomitant will to power. And what greater confirmation of power, and banishment of powerlessness, is there than utter control over another human being -- body, mind, and soul?

We also abhor helplessness. It's horrifying to consider that over time we will never be able to entirely prevent terrorist attacks. We prefer to believe 9/11 happened because we failed to do something we could have done, that there's some extreme we can still resort to that will make us safe again, that if we do that thing from now on, we can gain greater mastery over the possibilities that frighten us. Because, for the reasons set forth in the paragraph above, torture is already seductive, we seize on it like a talisman custom-made for our fearful psyches.

So it bears reminding that the reason torture is universally illegal in the civilized world is a consensus that torture is not only evil, but also insidious, and that therefore we must guard against the temptation to torture by enacting and enforcing strict laws against it. These laws provide not just a bulwark against a recrudescence of torture, but act also as a signpost, wisely erected by generations before us, warning us to stand fast against the dark sirens of our worst impulses.

Leave aside the irony that it's self-styled "conservatives" who are so eager to ignore the accreted wisdom of generations past. That the consensus against torture is the work of generations -- the product of generations of mistakes and of continual, improbable appeals not just to morality, but to wisdom, too, to the better angels of our nature -- makes the more debilitating the right's progress in once again coloring torture as something respectable, even desirable.

It is nothing of the sort. Torture is an abomination. It is without exception illegal. Those who have authorized it and those who have carried it out have committed crimes. In the face of clear laws and clear evidence of violation of those laws, a rhetorical resort to theory or morality or practicality isn't just an attempt to obscure the commission of crimes. It's also an implicit debasement of the value of the law itself. Most of all, it's a profoundly unconservative attempt to reingest an evil seed civilization has over time and in the face of dark, conflicting impulses, managed largely to expel.

-- Barry Eisler

Cross-posted at Heart of the Matter. More here:

The Torture Mentality, Part 1

The Torture Mentality, Part 2

The Torture Mentality, Part 3

The Torture Mentality, Part 4

A Call For Action

A brief progress report

June 26th is the International Day Against Torture. It is the anniversary of the entry into force of the U.N. Convention Against Torture and Cruel, Inhuman, and Degrading Treatment. This year, we have a new president in the United States, one who made a commitment to end torture on his second day in office. I have already written about how hard I thought that commitment would be to live up to. We are seeing the difficulties mount with every new facet, just bringing the truth out for the American people to judge on their own is nearly impossible, apparently, as is actually closing down the machinery that has been set up, not to mention bringing perpetrators to justice.

Over the months we have seen the Obama administration uphold state secrecy in court, move against habeas rights for those held in Afghanistan, as if where you are held determines how much of a human being you are, ask for a continuation of the infamous military commissions, and most recently, fight tooth and nail to keep photographic evidence secret that the ACLU says proves the high level involvement in the types of supposedly "unauthorized" tortures we saw at Abu Ghraib. The President delivered a speech calling for indefinite preventive detention of some people, for a period characterized by the chairwoman of the Senate Select Committee on Intelligence as "until the end of this conflict, which means terrorism, against the United States, against her allies, and in the world abates." The prisoners at Guantanamo are not deaf. I personally don't think it's an accident that shortly there after, Muhammed Ahmad Abdallah Salih decided that indefinite was too long.

Over the same months we have seen the media, and the proponents of torture, narrow the debate to only the consideration of waterboarding applied to three men, and whittled down to a discussion over whether the current Speaker of the House was informed and when she was informed. An ongoing push is still in progress -- not to deny, any longer, that torture occurred -- but to argue that it was effective, and worth it, and stopping its practice will endanger national security.

Time to stop and take a look around

But this is not what has happened, it is not the proper list of facts, it is not the proper perspective of what has happened to this country. The torture has been widespread. It makes no difference whether those photographs show rape of children, as some assert, or merely show pictures of a prison door, like the picture shown in Torturing Democracy, that proves, beyond a reasonable doubt, that the treatment the prisoner inside was receiving was a matter of following very strict, and very detailed orders. Yes, getting it all out will show that many horrible things have gone on. There has been detention of children, there has been abuse of children. There has been detention of women, there has been abuse of women. There has been mass torture, and mass inhumanity. There have been all these things.

But if, in the American mind, it is necessary to have graphic brutality, to have blood spurting across the screen, and heads crunched against walls, to have intense and explicit physical pain and the scars to prove it, then we will never end torture in this country, and never again serve as a beacon for human rights in the world. Rightly or wrongly, we did once. Moazzam Begg makes one so very heartrending comment in the film Torturing Democracy. He says, "If the Americans are doing this, then what hope is there?"

The image of Saber Lahmar, dying on his mat in Guantanamo in solitary confinement springs to mind. Nothing is being done to him in that image. Nothing but loud mechanical noises from some equipment near his cell. Nothing but lights all day and all night all week and all year. Nothing but no contact with the world, no chance to see daylight, no chance to converse with other prisoners.

There is no photograph to shock the conscience in that treatment. There is no blood, no scars, nothing but a man slowly losing the feeling and movement of his limbs, his eyes, the windows to the soul, slowly clouding over, and with them the fog descends on his mind and destroys that soul. And none of the debates in Washington, none of the restraints that will make the detentions "better", none of the improvements to the military commissions, no debate over whether or not information was obtained, no declarations that we must move forward with the Muslim world, no speeches, no hearings, no photographs, will deal with the fact that one of the most deleterious tortures practiced in this whole sordid episode -- has been absolutely nothing. Lots and lots of absolutely nothing. Absolutely nothing by the day, by the year, punishment for not providing the intelligence someone wanted to hear, or absolutely nothing for no reason at all.

When the United States comes to terms with how much torture has occurred, and why, it will have to come to terms with the tortures the American people would still not notice and not recognize. All the reversals of the present administration, all the debates, and all the forces that keep our country from looking at its own deeds, will have to be expanded. From three people who faced the waterboard, we must demand accounting for those who were stripped naked and shackled. From those stripped and shackled, we must demand accounting for those denied any sleep. From those denied sleep, we must demand accounting for those who faced the insanity of deprivation. And from those who faced deprivation, we musd demand accounting for those just disappeared and locked away, with no hope of being released, solely because someday whatever was in their minds might have once been thought useful.

A time for action

So torture hasn't stopped, and the fight to expose it hasn't stopped. And it goes without saying that those who ordered or committed it have not been brought to justice. And so another June is upon us. We must use this anniversary as a time to demand accounting and to bear witness.

I have updated the list of activities for this year, and will continue to update them. I appreciate any comments left here with more events, leave a link, I will check that the link works and add them to the list.

We would like if in addition to the usual orange ribbons, people would wear black, an armband or clothing, in a symbol launched in Pakistan for the rule of law. There's something about a black armband -- people ask you why you are wearing it. It's an opportunity to tell them why the rule of law is so important. It's an opportunity to ask for support for accountability on torture.

We would ask that people leave comments wherever you leave comments, asking for support for activities that will call attention to torture and demand action. Writing is good, dates and times are good.

We would ask that if there are local events in your area, that you support them and attend them. There are teach-ins this month, they are easy to set up, and many sites contain instructions. There are vigils and marches for those who like to speak with their feet. And if there aren't, well, there's always starting your own. Some movie houses may be amenable to a one time showing of their films if you are not charging money, and these provide a wonderful springboard for teach-ins. Call them. You may be surprised (If they are amenable to having their terms posted publicly, write me a comment and I will post them).

Over the month, I will try to be more attentive to posting again. And I shall have help. We will try to have some guest blogging on this site, and will begin within a few days with the comments of Barry Eisler. We will try to get more.

Please help. Torture isn't something that just goes away. And it's always been wrong.

Worst Constitutional Crisis Since...

Yesterday, the new government, the one we had hoped would repudiate torture in all its forms, invoked the State Secrets provision in court in San Francisco, in a case in which the only threat to national security still left seems to be the threat of a court decision that the United States government tortured and rendered prisoners into torture.

Washington is having a rough time with torture. The international community is having a rough time with torture. In his book, Torture and Democracy, Darius Rejali recounts what happened in France in the late 1950's, when torture became an instrument of the state during the Battle of Algiers (pp.47-48):

What is important here is that democratic institutions were unwilling or unable to stop the turn to torture. One after the other, the judicial system, the legislature, the opposition parties, and the press failed. The police and military soon operated outside the law. In effect, they formed a closed state within the state. The military used its privileged position to establish covert torture, delay investigations, shape information, recruit political allies, and mobilize the public opinion for the war. The consequences for France were severe. In 1958, the army threatened to intervene in national politics for the first time since Napoleon's coup of eighteenth Brumaire, leading to the collapse of the Fourth Republic. In 1961, the army finally did organize a putsch and failed.

To be specific, above all, the judicial system faltered. Lacking information, prosecutors in Algiers depended on the press to identify the victims. The victims did not always have marks, so how could one bring charges against the police in these cases?...

At first, the government disputed press reports and suppressed publications about torture. La Question, the prison account of the well-known editor Henri Alleg, became the first book suppressed since the French Revolution....

Eventually, the government was compelled to investigate the allegations. It recruited investigators who were sympathetic to the police and military....

The old leftist parties and the press also failed. The internationally minded Communist party, for example, had its own torture skeletons in the closet, notably Stalin's victims....The press at first described "torture victims" in proper inverted commas. Even as the left-wing press became more vociferous, there were notable lapses....

Some military and police commanders broke ranks, resigned and denounced the torture, but there were just as many officers who wrote vociferously in favor of torture and threatened meddlesome amateurs. "You will be made to pay, all you academics. You will pay for lecturing us." Prowar journalists lionized the torturers in popular novels, asking the public: If you knew this terrorist had planted a bomb, would you not torture him too? The secret service recruited an author to write a book of counterpropaganda. The archbishop of Paris was reminded that certain funds might be cut if he was too publicly outspoken.

Okay, it differs in some details, doesn't it? But haven't we seen precisely these actions in our national anguish over torture and rendition? What does it mean, the new administration campaigns on the rule of law and both parties claim on the stump that torture is wrong, but then the same invocation of the State Secrets privilege, not 3 weeks into the new regime and the new Democratic majority?

Washington, in particular, and the nation at large, acts like a social brain, ruminating on what to do to avert the looming crisis. Like any functioning intelligence, it desperately sorts through its memories of the past, looking for an antecedent, some solid bedrock of experience on which to base its actions, in hopes of reducing the fear of the unknown and improving its chances of a good outcome. Most clearly, we see this right now on the financial crisis. Though the behavior is to lurch from solution to solution, or to get distracted in minutiae of exactly how and when to implement some fix, there is always a solid knowledge of things past, a daily reading of what happened before, even as the chorus of opinions on what should be done now cause settled history to change and mutate and take on different tones depending on the mood of the moment. But always, there is the antecedent. This is the worst financial crisis since 2001. This is the worst financial crisis since Japan in the 1990's. Since Argentina. Since the Great Depression. But the invocation of a crisis we have never seen before by President Obama, leads to a tone of genuine fear as reporters query the new president with real trepidation about the unknown:

[Jennifer Loven of AP]: Thank you, Mr. President. Earlier today in Indiana you said something striking. You said that this nation could end up in a crisis, without action, that we would be unable to reverse. Can you talk about what you know or what you're hearing that would lead you to say that our recession might be permanent when others in our history have not? And do you think that you risk losing some credibility or even talking down the economy by using dire language like that?

I will try to say this in the starkest of terms:

Torture is the worst Constitutional crisis we have faced since slavery.

The worst since slavery. Since the crisis which, once it could no longer be avoided, plunged the nation into the deepest of crises, literally ripping the new nation apart, and causing a war that still tops the list of all American wars, in numbers of American dead. And that, the fact that there is no nicer antecedent, is why the nation will do anything to avoid facing the crisis, even as it is dragged inexorably towards creating its own judgment day. There are three horsemen of the very real jus cogens apocalypse, and they are slavery, genocide, and torture. And when a country does not avoid them, and cannot live with itself if it bargains with them, then it faces judgment.

It's our fault, us the civil libertarians, the humanitarians, the human rights advocates and activists, just as it was the abolitionists fault the last time. Or was it the next to last time. We had a crisis with genocide. We sanctioned it, postponing civil and human rights, suppressing a frank appraisal and a forswearing. Our government sanctioned massacres and deportations, breached treaties and looked the other way from suffering. The industrial revolution was happening at the same time, and the mood of the nation not to look too hard at itself in the mirror, tolerated that injustice, and many more, power grabs by corporations, loss of voting rights and registrations, laws that would have to be repealed and actions that would beget apology and remorse, generations later. Gangs surrounding the Civil War generals, never asked to stand down, marauded the Great Plains in private criminal wars against the Cheyenne Nation. Arguably, we did not emerge stronger from a battle not fought. Arguably we stalled the gains of facing down slavery by a hundred years. Arguably, the strength of We the People in this democracy was permanently reduced. Arguably, you cannot make peace with the unthinkable and not lose something of yourself.

But this time, we move towards the crisis. We may try compromise. Our denial is no longer viable, our anger is evident, we begin to bargain to forestall the inevitable. As the facts seep out, so do proposals for Truth and Reconciliation commissions, proposals to investigate but not prosecute, proposals to acknowledge the great guilt of those at the top and be lenient on those who carry out orders. Yes, the State Secrets got invoked yesterday. But things are changing: It provokes editorial vehemence now, before the fact. Where most major news outlets did not cover the news of torture meetings in the Situation Room in the White House when it first broke, news outlets could not help but cover yesterday's court surprise. Where angry letters to senators and congressmen once provoked a tired, patterned response, now senators rush to sign on to some kind of investigation. Where one or two "fringe" representatives once called for a full accounting and prosecution, now eyes are watching as the House Judiciary Committee moves forward.

The bargaining and depression in Washington are part of the process. There will be an investigation of torture by the United States during the years following September 11, 2001. There will be an understanding that we may have lost our best chance for bringing all the perpetrators of that act to justice because we tortured and rendered. There will be prosecutions. They are unavoidable. The world will not sanction what we have done, even if we would like to. And just as our economic woes are calling into question a generation's assumptions about a healthy economy, our crisis over torture will call into question several generations acceptance of the "closed state within a state" where, in our case, the military and the intelligence agencies "operated outside the law". Most of us have never lived in a democracy not protected by a state secrets. And now the state secrets have threatened our democracy.

The sooner we accept that the battle between the privilege of keeping state secrets and the inevitability of judgment for breaking a law that upholds our humanity is a battle that must be fought, that cannot be avoided, and that will bring pain and pit friend against friend and sibling against sibling, the sooner we can begin to talk realistically about how to avoid the worst of all possible consequences. Because we know we should not solve this with violence. Powerful forces are allied with those who tortured, and powerful emotions, exhibited only in the tiniest fraction during the election cycle, could really and truly tear the country apart. Torture stands as the personification of all the secret government that some believe is necessary for our very existence. They will not relinquish it willingly. But we know that torture cannot continue to tear at our fabric any more than slavery could. The worst moral and Constitutional crisis. Not since Clinton, not since Nixon. Since Abraham Lincoln. I hear Barack Obama is a fan. People need to make sure he understands: The economy is not the only unique crisis we face.