Monday, June 8, 2009
Cheney's Revenge: Coming to a Police Station Near You (UPDATED, 6/10)
Ryan S. Smith of Niagara Falls, New York, is a 21-year-old ex-con suspected of taking part in a vicious kidnapping and robbery. He is, quite likely, a fairly nasty specimen of humanity. Whether or not that's the case, he will likely become a pivotal figure in the legal struggle over institutionalizing torture as method of enforcing court orders and conducting police interrogations.
In July 2006, four suspects invaded a home, bound and gagged two small children, and took the mother hostage. While one remained behind, three of the suspects took the mother to another home, where they shot a man while carrying out a robbery. (The victim, fortunately, survived.)
While watching the children, the fourth conspirator -- Smith, according to prosecutors -- helped himself to a soda, apparently unaware that by doing so he would leave behind a potentially critical quantum of DNA evidence.
Smith is also suspected of staging an armed hold-up of a convenience store on the following Christmas Eve. A glove found at the scene of that robbery also contained a DNA sample.
The DNA samples collected from the glove and the soda can were matched by the FBI's Combined DNA System (CODIS) with a sample previously taken from Smith.
In August of last year, Niagara County Court Judge Sara Sheldon Sperrazza issued an order requiring Smith to provide a DNA sample via a painless swab of his inner cheek. Smith didn't object, and the sample was taken without difficulty.
At this point, the story becomes complicated by professional incompetence. The Niagara Falls Police sent the sample to the wrong lab, where it was opened and contaminated.
The investigators went back to Judge Sperrazza for a second order, which -- unlike the first one -- she granted ex parte; this means that Smith's defense counsel was not informed or consulted. That last point is critically important, as we will see anon.
Smith bridled over the second order, refusing to provide a second DNA sample. This prompted the police to consult with the County District Attorney's office to learn how much force they could employ to compel Smith to provide potentially self-incriminating evidence.
Let's stop here to ask what should be an obvious question: In a system that is supposed to favor the rights of the accused over the convenience of the accuser, what sense does it make to have the prosecution decide the extent to which physical duress can be applied to force a defendant to incriminate himself?
The answer, it seems to me, is "none at all" -- unless, of course, the system as it actually exists is rigged to favor the needs of the prosecution, at whatever expense to the rights of the accused. Once this is understood, the next development in the Smith case is hardly surprising, however troubling it should be to people who care at all about due process.
As Detective Lt. William Thomson would later testify, Assistant Niagara County D.A. Doreen M. Hoffmann, who is presiding over the prosecution of Ryan Smith, instructed the police that "we could use the minimum force that was necessary" to force the suspect to submit to a DNA test.
Now, think carefully about that formulation: In principle, it authorizes the use of any amount of force needed to extract the sample, since the critical term is "necessary." As long as the police were reasonably careful in calibrating the duress the applied, they could continue escalating the level of force until it broke the suspect; wherever they end up would obviously be the "minimum" necessary to accomplish their objectives.
Smith was brought in handcuffs to the police station and informed that the investigators had been authorized to use physical force. Although nobody intended to harm him, Smith was told, the sample was going to be surrendered; it was just a question of how much he wanted to endure before it was. Smith still refused to comply.
Confronted with an intransigent suspect who refused to provide critical evidence, the investigators reluctantly strapped the handcuffed Smith to a downward sloping table, covered his face with a towel, and waterboarded him. He broke within seconds, and meekly permitted the DNA sample to be taken.
On the basis of the DNA evidence, Smith was hit with a 24-count criminal indictment. He was also charged with "criminal contempt of court" for forcing his interrogators to torture him.
When Smith's defense counsel filed a motion to suppress the evidence based on Fourth and Fifth Amendment protections, the same Judge who issued the ex parte orders produced a ruling validating the use of waterboarding as means of forcing compliance, as long as it's not done "maliciously" or to "excess."
This account is true and accurate in every detail, save one - the specific torture protocol that was used to compel Smith to surrender a sample of his DNA.
He wasn't subjected to water torture; instead, he was given a brief taste of electroshock torture by way of a Taser that was used to inflict a "drive stun." This involves placing the prongs of the device directly on the body of the victim for a brief, painful, paralyzing charge.
While Smith was spared the much-discussed horrors of controlled drowning, there was no practical reason waterboarding could not have been used, if his interrogators had chosen that method of "pain compliance," either at the beginning of their interrogation or after trying other modes that had failed. Remember, "minimum" force is left entirely to the discretion of the interrogators, and it's defined as whatever succeeds in extracting what is wanted from the suspect.
I don't presume to be a prophet, but I feel serenely confident in predicting this: If the tactics used in this case survive judicial scrutiny, the use of electro-shock and other torture protocols -- including waterboarding -- in suspect interrogation and enforcement of court orders will become not only acceptable, but routine.
In fact, electro-shock torture is already commonplace, albeit as a means of forcing unruly people -- not dangerous, not threatening, but merely uncooperative -- to submit to police orders.
The original rationale for the use of the Taser is that it provides a safe, non-lethal alternative to firearms for use in dealing with violent criminal suspects.
However, the much more common use of the Taser is as an instrument of "pain compliance" when police confront peaceful but uncooperative citizens. "Pain compliance" is a legitimate means of subduing a violent suspect without placing the lives of others in jeopardy.
As a means of forcing non-violent citizens ("subjects" is actually the proper word) to submit to police in which there is no legitimate suspicion of a criminal act, "pain compliance" is nothing other than a species of torture: Submit, helot -- instantaneously and without back-talk -- or Officer Pavlov with get out the sizzle-stick and make you do the electron dance.
With police regularly using Tasers to administer summary punishment to non-compliant civilians, it's not surprising that their use has now been authorized as a means of extracting self-incriminating evidence from criminal suspects.
We shouldn't delude ourselves into thinking that the domestic use of "enhanced interrogation" will be confined to enforcing court orders, as mortifying as that application is in and of itself; the welcome mat is now out for a return of the Third Degree, albeit in subtle, incremental steps.
What is striking about the case of Ryan Smith is the utter lack of exigent circumstances behind this ratification of official torture.
There was no "ticking bomb," no concealed nuclear weapon, no secret plan to spike municipal water supplies with chemical weapons. Just a recalcitrant criminal suspect who was making things a little difficult for the police.
The crime itself took place three years ago. DNA evidence collected from the crime scene is as secure as can be expected, given the proven incompetence of the investigators. Smith's DNA is not mutable.
As New York criminal defense attorney Scott Greenfield points out, "Normally, the refusal to comply with a court order would compel the police to let the prosecutor know, who would then move to have the defendant held in contempt for failure to obey the court order."
Judge Sperrazza is "the first judge in western civilization to say you can use a Taser to enforce a court order," complained Patrick Balkin, Smith's defense counsel. He also pointed out that the precedent could inspire other practical applications of electro-shock "pain compliance": “They have now given the Niagara Falls police discretion to Taser anybody anytime they think it’s reasonable. [Sperrazza's] decision says you can enforce a court order by force. If you extrapolate that, we no longer have to have child support hearings; you can just Taser the parent.”
In a lawsuit filed against the City of Niagara Falls, Smith alleges that he was "tortured into unconsciousness" by repeated Taser charges. The police investigators insist that they were much gentler in the application of electro-shock trauma, but their testimony regarding the number and duration of shocks is mutually self-contradictory (as well as inconsistent with the record kept by the Taser unit itself).
There are a number of other troubling aspects to the case. Smith's defense attorney contends Smith was never shown a copy of the court order demanding the first DNA sample; the police insist that the paperwork was shown to Smith, but the affidavit attesting to service "cannot be located," as Judge Sperrazza acknowledged in her ruling (.pdf). No matter: She was willing to take the police at their word. Of course.
In justifying the use of a court order for a DNA test -- a painless but invasive procedure -- Sperrazza relied on a New York State precedent dealing with a court-ordered blood sample. "As the application seeks an intrusion in the suspect's body," Sperrazza wrote, "it may not be ex parte but must beupon notice and give the suspect an opportunity to oppose the request."
Once again: The second court order demanding a DNA sample, the one Smith refused, was issued ex parte. Sperrazza glides over that complication by insisting that Smith had consented to the first order without raising objections, an argument that is a pretty decent specimen of the ignoratio elenchi fallacy.
Sperrazza takes note of Smith's argument that the use of the Taser was "in the nature of torture and cannot be condoned." This prompts the following judicial shoulder-shrug: "[T]he Court does not find that the infliction of pain in a reasonable manner, to induce compliance, is necessarily unconstitutional. "
This is to say that torture (Sperrazza did not reject the description) via Taser can be entirely "constitutional" and "reasonable" as a means of breaking the resistance of a suspect.
Judge Sperazza's ruling -- which is almost certain to be appealed -- is the domestic offspring of the sophistries begotten by Jay Bybee and John Yoo during their time as apparatchiks in the Bush Regime's Office of Legal Counsel.
When the Dear Leader (and his dead-eyed GrandVizier, Cheney the Malignant) demanded a legal rationale for torture, Bybee -- a pious Mormon Sunday School teacher with the mien of Ned Flanders -- provided the general outline and let Yoo run wild as a detail worker.
That's how we ended up with a standard of CIA interrogation in which duress could be applied in any way that didn't involve "organ failure, impairment of bodily function, or death." That's how Yoo could go on to suggest that the President could order the sexual torture of children as a means of forcing the parents to cooperate. It would be interesting to see how Bybee, who now sits on the Ninth Circuit Court of Appeals, would react to a case involving the "enhanced interrogation" of a criminal suspect.
"Criminal means, once tolerated, are soon preferred," warned Edmund Burke. Don't be surprised if, ere long, the interrogation rooms in American police departments mutate into CIA-style "black sites" of the sort now familiar to more than a few traumatized innocent foreigners.
UPDATE, June 10: The Met and Water Torture
A major "anti-corruption" probe of London's Metropolitan Police includes allegations that police officers used water torture -- colloquially known as "waterboarding" -- against suspects in narcotics investigations, according to Sean O'Neill of the Times of London. The probe is also investigating claims that police fabricated evidence and stole property from suspects -- forms of official corruption quite common in the American version of the murderous fraud called the "war on drugs."
Although the allegations of corruption and torture are being probed by Scotland Yard with the "utmost seriousness," one official close to the inquiry insists that the method of water torture used was less sophisticated than the CIA's preferred approach: It was less a matter of strapping someone to a table and using calibrated amounts of controlled drowning than "shoving their heads in a bowl of water."
I've said it before: Sometimes it's a pity that only one ocean separates the UK from the U.S. The relative ease of correspondence between the United State and its Mother Regime allows for pernicious cross-pollination of all kinds of dangerous and stupid ideas. We tend to be perhaps six to eight months behind Great Britain in our descent into the Total State. And here we see how bad ideas tend to travel east from Washington to London, as well as the reverse.
(My thanks to the anonymous commenter who brought the London water torture scandal to my attention.)
Something to watch for ...
I don't know when, or if, anything will materialize in print, but on Monday I spent more than an hour on the phone with Dan Barry, a columnist for the New York Times. He was interested in getting my views about some matters involving the organization that once employed me. In the event something comes of this, I'll be sure to let you know.
A reminder ...
Monday at 6:00 PM Central time will see the debut of Pro Libertate Radio on the Liberty News Radio Network. LNRN is a small, young start-up with only a handful of stations so far, but the programs are accessible via the Net, both as simulcasts and in the on-line archive. The toll-free call-in number is 1-866-986-6397 (866-986-NEWS). I hope to hear from you!
An utterly gratuitous video extra ...
... it's just that every time I hear "Niagara Falls," it tears me apart:
On sale now.
Dum spiro, pugno!