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.