Isn’t it time to purge the taint of Guantanamo – even if it comes at a price?
Posted on 28 June 2009
Opinion/Editorial
For a president who taught Constitutional Law, who worked at Miner, Barnhill and Gall a Chicago civil rights firm, who ran on a platform of restoring the reputation of America in the world community as a nation of laws and as guardians of human and civil rights, somethings don’t seem to fit. These days the political movements of the Administration are, occasionally a little like those puzzles in children’s magazines, the ones where the goal is to figure out what’s wrong with the picture by detecting the subtle inconsistency.
The latest out of place move was first reported by ProPublica an investigative group late Friday and subsequently reported by AP at about 8am on a Saturday morning, where it may well disappear from sight before the Sunday news morning or the Monday news cycle buried in a mound of Farah Fawcett and Michael Jackson tributes and now Billy Mays (yes the OxyClean man). The report states:
“The White House is considering whether to issue an executive order to indefinitely imprison a small number of Guantanamo Bay detainees, concerned that Congress might otherwise stymie its plans to quickly close the naval prison in Cuba.” The report continues:
“The administration is also considering asking Congress to pass new laws that would allow the indefinite detentions, the official said.”
Indefinite detention is the process of arresting an individual and never setting a trial date based on policy considerations of public safety through preventative detention. The detainee could be held for the remainder of his or her natural life or until there is some determination they no longer pose a threat to the public. As a government imposition is dances very close to the line between democracy and tyranny. In Washington State we have something similar, the process of civil commitment for sex offenders who reach the end of their criminal sentences and are then tried civilly to be held indefinitely until they are somehow demonstrably no longer a threat to the public. An example is Kevin Coe. Other countries, Austrailia since 1994, Malaysia in 2001 (for hacking), on the other hand none of the EU states are likely to try it because in the British fervor over terrorism post 9/11 it’s version of indefinite detention was ruled by the country’s highest court to violate the Human Rights Act and the European Convention on Human Rights (ECHR)
As a nation are we really so afraid of any one, or any dozen of these “small number” of detainees? Are they truely that dangerous, are we truly unable to make a case against them using lawful means that reflect our values and national morality? I cannot see the reasons for it – and while I am not privy to the information President Obama is, I still find it hard to stretch my mind around the concept of somebody being so dangerous that we would trade our national values and integrity for the appearance of safety incarcerating them for ever would provide. One thing we should have learned by now is that terrorists are a little like dandylions in the lawn, pick one and there will be 5 more the next day – so how does keeping one forever help us with the five that appear in his place?
The argument that echoes most when there are calls to try these men in US Criminal Courtsall relate to “National Security”; the government claims that prosecuting the government’s claims sucessfully will require disclosure of sensitive intelligence information. I don’t see that as a real issue – we are able to vet FBI, CIA,, DIA, Secret Service and other government agents to ensure national security secrets are safe in their presence, can’t we find a few federal judges we can trust to hear these cases? The obvious remedy is to utilize the same procesure employed to establish the Foreign Intelligence Surveillance Court - we have already created a mechanism for sheding impartial judicial light on decisions which involve both individual civil rights and liberties and national security intelligence.
The other argument that arises is that we wouldn’t be able to obtain convictions because the evidence against them was a product of coercion or torture and is therefore tainted. That has an obvious remedy, we can acknowledge that our behavior not theirs created a
situation in which conviction impossible, we can accept responsibility for it and as justice requires let them go. Just as the exclusionary rule decades has caused police to be more careful to protect the rights of suspects in the course of their work, the image of a detainee who’s rights were violated walking away, is a powerful motivator for law enforcemen officers, or in this case military intelligence officers to follow the law.
In February Attorney General Holder in his confirmation hearings declared “we are at war” with terrorists, that type of language seemed to drive the legal shortcuts and derogation of civil liberties which, embodied in Guantanamo, have caused the world’s image of America as a nation of laws to plummet. Here is an excerpt of Attorney General Holder’s questioning by Senator Lindsay Graham R-SC,
Graham: Where is the battlefield in this war?…
Holder: The battlefield—there are physical battlefields, certainly, in Afghanistan. But there are battlefields, potentially, you know, in our nation. There are cyber battlefields…where we’re going to have to engage. But there’s also—and this sounds a little trite, but I think it’s real—there’s a battlefield, if you want to call it that, with regard to the hearts and minds of the people in the Islamic world….
Graham: Now, when you talk about the physical battlefield, if our intelligence agencies should capture someone in the Philippines that is suspected of financing Al Qaeda worldwide, would you consider that person part of the battlefield, even though we’re in the Philippines, if they were involved in an Al Qaeda activity?
Holder: Yes, I would.
It rather extends the definition of enemy from the man pointing a gun to anyone that may be perceived as giving aid to the enemy. We have already seen criminal convictions of operators of US charities who funded money to Hamas, to support orphans in the Palestinian lands – in the US because Hamas has been named a terrorist organization since 1997 – we often fail to realize that Hamas is involved in the electoral system in Palestine. In addition to it’s military wing, the Izz al-Din al-Qassam Brigade, Hamas devotes much of its estimated $70-million annual budget to an extensive social services network. Indeed, the extensive social and political work done by Hamas – and its reputation among Palestinians as averse to corruption – partly explain its defeat of the Fatah old guard in the 2006 legislative vote. Hamas funds schools, orphanages, mosques, healthcare clinics, soup kitchens, and sports leagues. “Approximately 90 percent of its work is in social, welfare, cultural, and educational activities,” writes the Israeli scholar Reuven Paz. The Palestinian Authority often fails to provide such services, and Hamas’s efforts in this area—as well as a reputation for honesty, in contrast to the many Fatah officials accused of corruption—help to explain the broad popularity it summoned to defeat Fatah in the PA’s recent elections. See here for an excellent overview of Hamas by Council on Foreign Relations.
Given Holder’s invocation of cyber and mental battlefields, the enemy could even be someone accused of fomenting terrorism through incendiary online criticism of the U.S. government. The implication is that any of these people could be held in military custody without trial until the cessation of hostilities, i.e., indefinitely. Should I lock my doors and get my affairs in order after I hit the “Publish” button on this comment? When the United States Attorney General makes statements such as this – the answer becomes more unclear than it should ever be in the United States of America.
At her confirmation hearing last week, Elena Kagan, President Obama’s nominee for solicitor general, agreed the Al Qaeda financier captured in the Philippines in the previous hypothetical could be subject to indefinite military detention. She also agreed with Lindsey Graham R-SC, that
“America needs to get ready for this proposition that some people are going to be detained as enemy combatants, not criminals, and there will be a to determine whether or not they should be let go based on the view that we’re at war, and it would be foolish to release somebody from captivity that’s a committed warrior to our nation’s destruction. While the status of someone captured in an ordinary war can be based on “a battlefield determination by a single officer,” Lindsey added, such a classification in “a war without end” requires “more due process.” He said that process must be “transparent” and include “an independent judiciary involved in making that decision beyond the executive branch.”
Kagan again concurred. I find that refreshing at least, because a transparent process including an independent judiciary beyond the executive branch actually goes a long way to satisfying much of what civil libertarians are complaining bout, and yet it is still indefinite detention – something which doesn’t seem to belong in a free society.
It should be acknowledged that what Lindsey and Kagan seem to have in mind is an improvement over the Bush administration’s original detention policy, major aspects of which have been rejected by the courts. Bush asserted that he had the unilateral authority to lock up anyone he accused of links to terrorism, including citizens and legal residents, whether captured on or off a battlefield, inside or outside of the United States. Bush’s lawyers maintained that such a prisoner had no right to counsel or judicial review of any sort. In practice, such powers would make every American’s freedom completely subject to the president’s whim.
Obama is not asserting that kind of authority. But he does seem to be preparing the groundwork for a military detention system that will hold the sort of suspects who could be (and have been) successfully tried in ordinary criminal courts for participating in or abetting terrorism. Such suspects need not even be tried by military tribunals; they could simply be identified as “unlawful enemy combatants” through a process that is yet to be determined but that will certainly be much less rigorous than a full-blown trial. What will be the basis for deciding which suspects get full due process and which get something far less, which receive determinate prison sentences and which are held indefinitely? History tells us that whever an easier option exists it will be taken, it will always be tempting to take the easier route, which could mean that every case related to terrorism will be militarized. Then anyone accused of aiding terrorism can forget about justice as it is usually understood and look toward a more Iranian flavored concept of justice.
Perhaps we should not go down this path at all?
Related posts:
- The March toward a System of Indefinite Detention continues.
- Judge Jay Bybee, Professor John Yoo, heads up!
- 45 years of progress and still a long way to go.
6 responses to Isn’t it time to purge the taint of Guantanamo – even if it comes at a price?
I really don’t understand what the big deal is with these detainees. From what I’ve read many of them were picked up because the US was offering cash rewards for any “foreign nationals” in Pakistan and Afghanistan earlier in the war.
I personally believe that many of them are completely innocent and yet have been subject to some of the worst forms of torture – now perfected by doctors and psychologists.
Create a secure court, try every last one of the detainees, release and compensate those that are acquitted, incarcerate those that are convicted, and those that cannot be prosecuted because the evidence against them is so tainted by our methods – well just let them go, like you say, if we do the intelligence community will learn an unforgetable lesson.
Gunnar, I think you may be right that a number of detainees still in Guantanamo are likely guilty of nothing. Thank you for your comment.
Greatings, Amazing! Not clear for me, how offen you updating your darylrodrigues.com.
I try to publish a couple of times a week, sometimes several times a day (I guess I had lots of things that interested me today). Thanks for stopping by.
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