Abel (2018a, p. 682) writes in Law’s Wars that in responding to America’s “War on Terror,” “defenders of the rule of law achieved only partial victories …. A few foot soldiers were punished for the abuses at Abu Ghraib but not their superiors, and certainly not those whose orders encouraged the abuses.” This summation is consistent with our own assessment, both in Iraq (Hagan and Hanson 2016) and beyond. But as Abel documents, there is more to this story, and it suggests that the interplay of social activism and international law can sometimes bring unexpected victories that are more consequential than commonly realized, and that should be of considerable interest to criminologists.
Our example involves an unexpected conjuncture in 2005 between the well-known torture of mostly Sunni detainees by American soldiers at Abu Ghraib prison and an ongoing investigation of police torture led by Chicago detective Jon Burge of more than a hundred African-American men on the hyper-segregated south side of this city.
The back story of this racially targeted torture unfolded in Chicago during Richard M. Daley’s years as state’s attorney and mayor. Two important writers, John Conroy and Flint Taylor, have written about the Burge case, resulting in two landmark books: Conroy’s (2000) Unspeakable Acts, Ordinary People and Taylor’s (2019) The Torture Machine. Both traced the beginning of this torture to the 1970s and located its peak in the mid-1980s (see also Baer 2020; Ralph 2020); as well, both agreed that Chicago’s second Mayor Daley bore personal responsibility for covering up and protecting Detective Burge from criminal prosecution. Burge was finally fired in 1993 by the Chicago Police Department, but he still had not faced criminal charges for this torture in 2005, when the events at Abu Ghraib Prison in Iraq exploded into public view (Taguba 2004).
By this time, social activists in Chicago had been pushing for the criminal prosecution of Jon Burge for several decades (Baer 2020). The journalist Conroy, and the lawyer Taylor, had been working with south side activists throughout this period to pressure state prosecutors to charge and prosecute Burge. In 2002, they succeeded in getting a special state prosecutor appointed to investigate the case, but the investigation had languished for several more years without producing a report of its results. Finally, in 2005, the parallel between the torture at Iraq’s Abu Ghraib prison and Chicago’s Police Area 2 caught the attention of human rights advocacy groups and lawyers. This presented an important opportunity to bring international criminal law to bear in a unique way.
The African American Chicago lawyer, Standish E. Willis, was among the first to draw attention to the significance of the legal connection between the torture of American soldiers at Abu Ghraib and Chicago. Willis had grown up on the west side of Chicago and was a gang leader during his youth. His life took a turn when he joined the Air Force and subsequently earned a law degree. During this period, Willis organized the African American Defense Committee against Police Violence. While at home one day in 2005 with the flu, Willis heard a television news report about a Committee against Torture [CAT] hearing being held about Abu Ghraib at the U.N. High Commission on Human Rights [UNHCHR] in Geneva.
Willis put his organizational skills to work by enlisting the support of Illinois Congressman Danny Davis and the National Conference of Black Lawyers. He focused on gaining compensation for victims of Chicago police torture and eliciting a report from the long delayed special prosecutor investigation of the Jon Burge torture case. Willis succeeded in getting a hearing scheduled about the Chicago case in Geneva but was unable to attend. In his place, two Chicago legal activists—Joe Magoies and Susan Gzessch—travelled in May of 2006 to appear before the Committee Against Torture [CAT] at the United Nations High Commission on Human Rights [OHCHR].
With the cooperation of UN High Commissioner Louise Arbour, the CAT was continuing its review of torture by American soldiers. Arbour had already made history by indicting the first sitting head of state, Slobodan Milosovic, at the Tribunal for the Former Yugoslavia. Under the authority of the Human Rights Council, and with the support of Arbour at the OHCHR, the CAT scheduled reviews of torture by American soldiers in Iraq and police officers in Chicago. The logic was not only that the United States had used torture in both locations, but also that in both places the victims were specifically targeted racial/ethnic groups.
In Iraq, the torture was mostly of Sunni civilians, while in Chicago it was almost entirely African-American detainees. Using a process called Universal Periodic Review, the Committee asked the United States as a UN member state to account for its use of torture in Iraq and to complete its four-year torture investigation by the special prosecutor in Chicago. The CAT instructed that the United States “should promptly, thoroughly and impartially investigate all allegations of acts of torture by law enforcement personnel and bring perpetrators to justice” (Committee Against Torture, 36th Session, 1–19 May 2006).
Following the Geneva Hearing, public attention was intensified in Chicago when John Conroy and Flint Taylor, along with David Bates, a victim of Chicago police torture, discussed the hearing about the Burge case in Geneva on Amy Goodman’s (2006) nationally televised news show Democracy Now! The episode focused on the special prosecutor’s long delayed report. Goodman began by noting the provocative connection between torture in Iraq and the South Side of Chicago:
Abu Ghraib. Guantanamo Bay. Practices and places that have become synonymous with the abuse of detainees in US custody.… But there is one name … few people in this country will have heard about … It’s called Area 2. … The epicenter of systematic torture of dozens of African-American males by Chicago police officers.
Conroy and Taylor agreed that Goodman had her facts straight, but as they spoke, a difference in their own respective viewpoints became apparent.
Goodman asked why the Area 2 story was not more widely known and had not been addressed. To answer, Conroy drew from a chapter in his book titled “The Public is not Aroused”:
… the reason why it’s dragged on—I differ with the estimable Mr. Taylor here on this—is that there is no community outrage. People don’t care. … It’s African American men, most of them with criminal records. And they’re just beyond the pale of our compassion. We just don’t care.
Conroy’s logic was that just as the ruling Shia in Iraq didn’t care about torture of the Sunni, most white Chicagoans didn’t care about the torture of African-Americans.
Taylor’s perspective, like the work of Abel (2018a, b), was more optimistic. He suggested the litigation of Chicago civil suits combined with the anticipated special prosecutors’ report and the intervention by the CAT—could produce the needed public outrage. Taylor explained, “John [Conroy] and I disagree … The public outrage reaches certain proportions at different times. We’re at one those key points again today.”
Conroy acknowledged the present moment seemed promising, yet he also urged caution:
How significant … remains to be seen …. [T]o see [Chicago] … being mentioned in a phrase with Abu Ghraib and Guantanamo is quite thrilling. But whether this will just be one of those media … comes in for a day or two and then leaves remains to be seen.
In his concluding book chapter titled “Bystanders,” Conroy (2000, p. 256) observed, “It seems a very small leap to argue that torture is the perfect crime … in the vast majority of cases, only the victim pays.”
While Conroy is correct that it is the victims of torture who most often pay, and pay dearly, nonetheless, there is in Taylor’s more optimistic perspective, as in Abel’s work, an interesting suggestion of why this is so and how international law could still be used to deter torture. Anticipating that the report of the special prosecutors would likely be disappointing, and to a large degree a product of loyalists to the Daley political machine, Taylor (2019:338–40) shifted his hopes from the state to the federal courts and U.S. Attorney Patrick Fitzgerald.
There are continuing criminal violations here, and if the special prosecutor won’t do anything about them, then Fitzgerald, who is the U.S. Attorney … has to open his investigation into federal RICO or racketeering charges, as well as the obstruction of justice and perjury charges.
Flint insisted that to have Chicago grouped through international criminal law with Abu Ghraib should “wake up the U.S. Attorney’s Office.” Whether this wakeup call would be sufficient to stimulate RICO and racketeering charges would prove a different matter.
A few days later, a Chicago judge held hearings about the undisclosed special prosecutor’s report, and within the week, urged on by local activists, he ordered that the report be made public. Even though the report was a disappointment, having the case in public view and linked through the CAT and international criminal law to war and torture in Iraq was consequential. The torture scandal was now squarely in U.S. Attorney Fitzgerald’s hands and it was impossible to ignore.
Flint’s allusion to RICO and the possibility of making the Chicago torture scandal into a racketeering and corruption case implied going after high-level figures; but, Fitzgerald ultimately chose instead to prosecute only Jon Burge, and not for racist torture, but for perjury and obstruction of justice. Fitzgerald had the challenging task of being the first prosecutor after the several decades of cover-up to take on this issue. He succeeded in getting Jon Burge convicted for perjury and obstruction, and Burge was sentenced to four and a half years in prison.
Yet Daley was never charged, much less convicted, of covering up Burge’s torture. He had knowingly allowed this torturer to go free, even after the Police Department fired Burge for leading the torture. This outcome is consistent with Abel’s conclusion that defenders of the rule of law rarely achieve more than partial victories and that this is “all that is ever possible.” However, it is also consistent with Abel’s (2018a, p. 653) further insistence that “law matters” and that this was not the end of the Chicago story.