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Friday, January 12, 2007

happy anniversary, tyranny

Today, January 11, was the fifth anniversary of the first detainees' arrival at Guantánamo. It's worth reminding ourselves why we find the prison there intolerable. In one word: lawlessness.

Many of the detainees have no connection to terrorism at all. Even the Bush administration admits that at least two detainees, Abu Bakker Qassim and A'del Abdu al-Hakim, are there by mistake, but the government refuses to let them go. The BBC reported on their case on April 17, 2006. How many others might be there by mistake?

But let's simplify the problem as much as possible. After all, some people—not I—would argue that locking up the most dangerous offenders is worth punishing a handful of innocent people by mistake. Let's ignore all the reports of torture and bizarre treatment at Guantánamo, like this one. For the sake of argument, let's even pretend, despite the evidence to the contrary, that every single one of the detainees committed violent terrorist acts and deserves to be incarcerated for life. I'm all for punishing the people who want to bring down our institutions and who oppose the very idea of law. But the people doing the most damage to the rule of law are Bush and Cheney, not anyone at Guantánamo.

Unlike the presidents, I believe in the rule of law. I believe that American institutions of law and justice are indeed adequate for punishing terrorists and law-breakers of every stripe. I guess I'm just patriotic that way. Holding people—anyone—without so much as charging them with a crime in a court of law implies that the people doing the holding just don't believe in the power of law. And clearly they don't. I guess they're just not patriotic enough to have faith in our institutions.

Comparisons are often helpful. What do other nations faced with violent terrorist threats do with the suspected terrorists who enter their custody? Do they hold people for five years without so much as even a kangaroo court hearing?

The Senate Judiciary Committee has considered this question, and the answer is instructive. Stephen J. Schulhofer is a law professor at NYU and a founder of the Liberty and National Security Project at the Brennan Center for Justice. Here is what he told the committee on June 15, 2005:
'To put in some perspective the claimed need for extended detention, it is essential to consider the experience of other Western nations. In the face of unremitting terrorist attacks in Northern Ireland, Britain sought to lengthen the period of incommunicado detention beyond its usual norm of 48 hours. The European Court of Human Rights held that because of the emergency conditions, detention prior to judicial review could be permitted for a maximum of five days, and then only subject to the proviso that there be an unconditional right of access to a solicitor after the first 48 hours. Turkey, confronting persistent attacks by separatists who had caused instability and thousands of deaths in its Kurdish region, sought to detain suspected terrorists for exceptional periods without access to judicial review. The European Court held that despite grave emergency conditions, detention incommunicado for up to fourteen days was incompatible with the rule of law. In connection with the second intifada and the Israeli military's extensive combat operations on the West Bank in 2002, the Israel Supreme Court held that incommunicado detention of suspected enemy combatants for up to eighteen days was unacceptably long; the IDF has since limited its periods of detention prior to the first court hearing to a maximum of eight days.'

Let's make sure we understand the implications of these facts. Israel, a country that routinely experiences violent attacks and suicide bombings, does not hold people longer than eight days before legal norms of habeas corpus and the rest kick in, but the U.S. is holding a mix of terrorists and shepherds for five years without charge? Are we that weak?

It's depressing to have an executive branch that doesn't believe our courts work properly. But there's something even more depressing about the attitudes of Bush and Cheney: they don't even pretend. I would feel slightly better if they would charge every detainee at Guantánamo with bogus crimes in a kangaroo court than I do counting the days that people are held without charge. Why would that be better? Because Bush and Cheney's refusal to do even that much shows that not only do they not believe in the substance of law, but they're so brazen and shameless about their lawlessness that they are not even going to pretend to uphold the ritual forms of law.

So, to mark the fifth anniversary of rampant lawlessness, I invite my readers to join me in making a contribution to the ACLU. Go to the ACLU's website and click Donate Now. The best way to fight the lawless is to renew our commitment to the rule of law. You know what they say: freedom is not free. Neither is law.


Anonymous L. Schultz said...

I couldn't agree more with your general sentiments about Guantanamo. This is one of the worst abuses of the power of the United States government since the Mccarthy era. How is the shoving of tubes down the throats of prisoners to make them eat when they are trying to protest their unlawful detention supposed to aid the fight against terrorism?!? Nevertheless, I wouldn't be relieved if these prisoners were condemned in show trials in which the outcome was already predetermined by political interests. It would just be another face of the same system of injustice.

10:52 AM, January 17, 2007

Blogger Jeff Strabone said...

No, show trials would not relieve me either. I was just trying to make the point that Bush and Cheney are so brazen that they don't even bother with the appearance of law. That says something important about their own assessment of their powers.

Incredibly, there are now pro-torture voices in the United States. There is even a U.S. Senator from Oklahoma, James Inhofe, who is anti-anti-torture. When the world was outraged by the visual evidence of torture from Abu Ghraib, he made clear at the Senate Armed Services Committee on July 15, 2005 what outraged him about the affair:
'I got a lot of criticism a little over a year ago when it was Abu Ghraib, the first investigations were taking place. And I looked at the facts that those in those cell blocks were the terrorists, were the murderers, were our enemies. And I was more outraged by the outrage than I was by the treatment of those. This is just one senator speaking. What other country would freely discuss interrogation techniques used against high-value intelligence detainees during a time of war when suicide bombers are killing our fellow citizens? Why would we freely explain the limitations placed on our interrogators, when we know that our enemy trains his terrorists in methods to defeat our interrogations? Today, we're handing them new information on how to train future terrorists. What damage are we doing to our war effort by parading these relatively minor infractions before the press and the world again and again and again while our soldiers risk their lives daily and are given no mercy by the enemy?'

There you have it in his own words: he is more offended by people who oppose torture than by torture itself.

But torture is not criminologically effective. It is not a valuable tool in preventing terrorism or crime. We don't even have to reach the moral questions of to torture or not to torture if we can appreciate that torture produces unreliable intelligence.

How do I know that? Such cases have been widely reported. Here is the most recent one, from the New York Times for September 8, 2006.
September 8, 2006 Friday
Late Edition - Final
Section A; Column 1; Pg. 24
HEADLINE: Questions Raised About Bush's Primary Claims in Defense of Secret Detention System
'One of the men, Ibn al-Shaykh al-Libi, is believed to have given false information about links between Iraq and Al Qaeda after C.I.A. officials transferred him to Egyptian custody in 2002. Mr. al-Libi's statements were used by the Bush administration as the foundation for its claims that Iraq trained Qaeda members to use biological and chemical weapons. It emerged later that Mr. al-Libi had fabricated these stories while in captivity to avoid harsh treatment by his Egyptian captors.'

So the strongest evidence for a link between al-Qa'ida and Saddam Hussein was produced under torture and turned out not to be true. Why am I not surprised?

12:08 PM, January 17, 2007


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