Did the U.S. Department of Justice Just Lie to the U.N.?

Janet Phelan
Activist Post

For Americans, confidence in government is at a low. Growing numbers of people now question nearly any declaration made by the US government, particularly when its assertions are either

1. addressing terrorism or
2. addressing domestic policies.

Recent statements by David Bitkower, Deputy Assistant Attorney General, Criminal Division, United States Department of Justice to the United Nations Convention Against Torture, statements made during the review by that body of the US and its torture policies during the past five years, could be considered as subsumed under both of the above two categories. And sadly, Bitkower misrepresented actions taken by the US DOJ.

The statements in question were made this past November when UNCAT convened to review the torture record of the US and were subsequently included in the official UNCAT report without substantiating documents and indeed, without questions being raised as to the veracity of Mr. Bitkower’s assertions.

At a time when torture has increasingly become a concern, one might expect the US to put some spit shine on its face to the world. Bitkower was certainly in the polishing mode, as his presentation of the DOJ’s “Critical Role in Upholding US Obligations under Convention Against Torture” was rife with self congratulatory references to the attention that the US government is giving to its torture record, both internationally and domestically.

However, Bitkower went too far. While expounding on domestic prosecutions for police abuse, a subject which is always of concern when one discusses torture, Bitkower made a pronouncement that was so far from reality that one wonders how the UN could have swallowed a whopper of this magnitude without gagging.

Declared Bitkower,

The vast majority of law enforcement officers in the United States perform their jobs with integrity and respect for the communities they serve. But when systemic problems emerge, and officers abuse their power, the Justice Department uses its authority to implement meaningful reform and hold officers accountable under the law.

In the civil context, the Department’s Civil Rights Division has opened over 20 investigations into allegations of systemic police department violations over the past five years. 

And then came the whopper. Said Bitkower, “In the criminal realm, we have prosecuted over 330 police officers for misconduct in the last five years.”

Before delving into the magnitude and implications of this patently false statement, let’s fill in some blanks here. We are going to focus here initially on people killed by police, as a worst case scenario of potential police abuse.

The numbers of people killed by police officers in the US is admittedly a cloudy figure. According to estimates, the numbers run somewhere between a thousand and two thousand a year. While the FBI is supposed to maintain a database on these killings, a recent article in the Wall Street Journal revealed the inadequacy of this database.

According to the WSJ article, local police agencies are not fulfilling their mandate to report these killings.

A non-government website, Killedbypolice.net, is tracking these killings through media reports. The first seventeen days of January saw 53 people killed by police throughout the US, according to this website. The website tracked 1103 such deaths in 2014.

In an interview this past week, Franklin Zimring, William G. Simon Professor of Law at UC Berkeley Law School, expanded upon the difficulty of obtaining an accurate headcount. In an interview last week, Professor Zimring pointed out that all the deaths at hands of the police may not get news coverage; indeed, some may not be reported at all.

So with these thoughts in mind, and understanding that the numbers reported either by the FBI or by independent calculations may be low, one might figure that the “330 prosecutions for police abuse” cited by Bitkower might be realistic.

However, as it turns out, Bitkower was blowing a huge plume of smoke up the collective behinds of the international community when he made this statement to the United Nations. According to Professor Zimring, this figure is “very suspicious. I would doubt there were as many criminal prosecutions as the fingers on one hand.”

A review of the website for the US DOJ, Civil Rights Criminal Division produced four cases in which the US DOJ successfully prosecuted police for misconduct in the past five years.

There was no mention of any unsuccessful prosecutions.

In fact, a spokesperson for the DOJ was unable to come up with a single prosecution by the DOJ for police abuse in the relevant five year time period. In response to a request for the documentation of these criminal prosecutions, George Horneado of the DOJ press office replied with a document listing the consent decrees created by the DOJ in recent years.

Consent decrees are not prosecutions. In this context, Consent decrees are arrangements between the DOJ and a local police agency wherein the policies and actions of the police agency are subject to review and modification by the DOJ—without criminal prosecution. Quoting from the document provided from Horneado:

In the past five fiscal years, the Department of Justice’s Civil Rights Division has opened over 20 investigations into police departments, more than twice as many investigations than were opened in the previous five fiscal years.

The department has entered into 15 agreements with law enforcement agencies, including nine consent decrees.

When it was pointed out to Horneado that a consent decree is not a criminal prosecution and that the request was for information on criminal prosecutions, Horneado declined to tender any information concerning these cases.

The police in the US seem to have tacit permission to murder US citizens. The recent uproar in both Ferguson and in New York over the separate failure to prosecute police for the murder of two unarmed black men are only the most recent incidents highlighting the latitude given police.

When the ACLU of Southern Oregon was recently approached with evidence that a local Internal Affairs department was covering for abusive police officers, the head of their legal department asserted, “The climate is not right now to address police abuse.”

If that is so, then Bitkower’s false assertions as to the record of the DOJ in criminally prosecuting police officers assumes a different dimension. If indeed abusive and murderous police are being given a pass for actions that deserve prosecution, then Bitkower’s whopper may be seen as a studied attempt to convince us otherwise.

As David Bitkower stated so earnestly to the United Nations in November:

My colleagues from the State Department have discussed ways in which the United States has not always lived up to its values. The Department of Justice has been part of the broad, long-lasting, and comprehensive effort to examine those failures and ensure they do not happen again. 

But the failure-to-protect inherent in allowing police to abuse without culpability is happening again. And again. David Bitkower, given the nature of his position in the US government, would be fully aware of underground policies which may be de facto promoting police abuse by giving police free rein to abuse and/or murder US citizens, without culpability. His efforts to portray the situation in an entirely different light could therefore be seen as an act of deliberate – and somewhat alarming – propaganda.

Janet C. Phelan, investigative journalist and human rights defender that has traveled pretty extensively over the Asian region, an author of a tell-all book EXILE, exclusively for the online magazine “New Eastern Outlook”, where this first appeared.