FIGHTING THE "WAR ON TERROR": WHAT HAS HAPPENED TO THE RULE OF LAW?
The Bush Administration says it is conducting its "war on terror" in a lawful manner and that the "military commissions" established by executive order in November 2001 meet fair legal standards. It says it does not use or condone torture, nor does it kidnap people and fly them to other countries to be tortured in a process known as "extraordinary rendition."
Its critics say its practices in the "war on terror" have put it beyond the rule of law. The US Supreme Court in three separate decisions has ruled that Guantanamo detainees should have habeas corpus and due process rights, that the military commissions are illegal and a violation of the Geneva Conventions, and that the President does not have the "inherent authority" to pursue the "war on terror" as he saw fit.
In spite of these rulings, by the middle of 2006, there was little substantial change in government policy.
So how is the government pursuing the "war on terror"? Below are the facts.
A. International and Domestic Law
1. International humanitarian law is spelled out by the four Geneva Conventions that govern the treatment of civilians and prisoners in wartime. A January 25, 2002 memo to the president by then White House Counsel Alberto Gonzales (who is now the attorney general) states that the new kind of war we are engaged in renders "obsolete Geneva's strict limitation on questioning of enemy prisoners and renders some of its provisions quaint."
According to Article 15 of the Third Geneva Convention, every prisoner must be given a hearing by a "competent tribunal" to decide his or her status. The tribunal would decide whether he or she should be considered either a prisoner of war subject to the Third Geneva Convention, or a detained civilian, who must be accorded the protections of the Fourth Geneva Convention. Under both the Third and the Fourth Geneva Conventions, prisoners or detainees must be humanly treated and not subjected to any "physical or mental coercion."
Rather than hold Article 15 hearings, the Administration made up its own classification for its captives they were "unlawful enemy combatants" and as such, it said, were not subject to the Geneva Conventions.
The Administration also made up a new kind of legal process for the "enemy combatants". On November 21, 2001 the Administration issued a Military Order establishing a system of military commissions that violated international treaties and its own Uniform Code of Military Justice. The commissions were immediately denounced by conservative columnist William Safire as "kangaroo courts" (New York Times, November 26, 2001).
Under these commissions, the accused are deprived of trial by jury. Evidence against them can be heard in secret, and hearsay evidence can be presented. They can be convicted by a two-thirds vote of commissioners present at the time, and their civilian defense lawyers can have their conversations with defendants monitored by the government. The only appeal is to a military panel and ultimately, the president who is the same person who initially provided for their indefinite detention as "enemy combatants".
2. Human rights law (which applies in war and peacetime) forbids torture and "cruel, inhuman or degrading treatment or punishment." The US has ratified such key components of human rights law as the International Covenant on Civil and Political Rights and the Convention against Torture, the latter with some reservations.
3. US domestic law forbids torture. The ban on torture and cruel and inhuman treatment is part of the Uniform Code of Military Justice. It is also part of the War Crimes Act of 1996 and the federal anti-torture statute of 1994, which states that a US national outside the US can be prosecuted for committing or attempting to commit torture. This law defines torture as "an act...specifically intended to inflict severe physical or mental pain or suffering (other than the pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control." A guilty finding can lead to 20 years in prison or the death penalty if the torture leads to someone's death.
4. The US Constitution forbids practices that are part of the government's war on terror. The Constitution ensures habeas corpus and due process (which the Administration has denied to foreigners and citizens alike that the government has labeled "enemy combatants"). The Constitution also prohibits cruel and unusual punishment.
B. The Treatment of Detainees
1. Evidence abounds that the U.S. has indeed practiced torture, violating U.S. and international law and human rights conventions. The media has featured graphic photos of torture, humiliation and physical abuse leading to the death of an inmate at Abu Ghraib prison in Iraq.
The American Civil Liberties Union (ACLU) as part of a Freedom of Information Act lawsuit has received over 100,000 government documents about the treatment of detainees at Abu Ghraib, Bagram (in Afghanistan) and Guantanamo (in Cuba). The documents reveal that detainees have been subjected to the use of a water pit, sensory deprivation, food and sleep deprivation, electric shock, strobe lights, being chained to the floor in stress positions for more than 24 hours, beatings ending in injury and even death, sexual abuse and humiliation, the use of menacing dogs, mock executions and deliberate burnings. The documents are posted at http://www.aclu.org/torturefoia/
On March 1, 2005 the ACLU and Human Rights First filed a lawsuit against Secretary of Defense Donald Rumsfeld and other senior military officers, seeking to hold them responsible for torture. International human rights agencies including Amnesty International and Human Rights Watch have compiled a wealth of evidence about torture in US-run detention facilities.
On February 16, 2006, the United Nations Human Rights Commission issued a report that accused the US of using detention and interrogation practices at its Guantanamo detention facility in Cuba that amounted to torture, and urged the prison to be shut down.
2. How the government views torture: An infamous memo on torture drafted for the Bush Administration by attorney Jay Bybee (now a federal judge), for White House counsel Alberto Gonzales (now Attorney General) defines torture as pain like that accompanying "death, organ failure or the permanent impairment of a significant body function." Anything short of this was not to be considered torture, and was therefore acceptable practice. Once it became public, the memo was repudiated by the Administration.
On December 30, 2005, as President Bush signed into law the defense spending bill that included the McCain amendment against torture, he added the following "signing statement" giving his interpretation of the law: "The executive branch shall construe [the law] relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch" with the objective of "protecting the American people from further terrorist attacks." According to New York University law professor David Golove, the signing statement means that Bush thinks he can still authorize harsh interrogation tactics when he sees fit (Boston Globe, January 4, 2006).
C. Extraordinary Rendition
1. The US insists it does not kidnap people and send them to other countries to be tortured. But the ordeal of 34-year-old Maher Arar, a Syrian-born Canadian citizen who had lived in Massachusetts, suggests otherwise. His experience was described at length in the February 13, 2005 New Yorker in a piece by Jane Mayer called "Outsourcing Torture: The Secret History of America's 'Extraordinary Rendition' Program." He had been arrested on September 26, 2002 at John F. Kennedy Airport in New York and was eventually sent to Syria where he was tortured and held in a windowless underground cell for a year. He was released without charges, after the Canadian government got involved in his case.
In January 2004 Arar brought a lawsuit against John Ashcroft and other US officials. On February 16, 2006 the lawsuit was dismissed by Brooklyn District Court Judge David Trager who said he could not second guess the Administration on foreign policy matters and could not allow a case to proceed that could result in the disclosure of state secrets.
A similar lawsuit, El-Masri v. Tenet, was brought against former CIA director George Tenet and other CIA officials on behalf of a German citizen, Khaled El-Masri. El-Masri was abducted while on holiday in Macedonia. He was detained incommunicado, beaten, drugged, and transported to a secret CIA prison in Afghanistan where he was subjected to coercive interrogation. After several months of harsh confinement, he was abandoned on a hill in Albania with no explanation, never having been charged with a crime. His was admitted to be a case of "mistaken identity." This case was also thrown out of a US federal district court on "state secrets" grounds.
2. There was a growing furor in Europe in late 2005 over reports that there were secret CIA-run "black sites" (prisons for "war on terror" detainees) on European soil.
3. Italian prosecutors charged 22 American CIA operatives with kidnapping Hassan Mustafa Osama Nasr in Milan in 2003. Other European countries, including Spain and Austria, have said they were conducting investigations into CIA-rendition flights to or over their territory.
D. The Lawless Zone of Guantanamo
The Administration claims that holding prisoners indefinitely at the US naval base at Guantanamo Bay, Cuba and in other secret prisons around the world is a "necessary part of protecting the American people" (George Bush, January 13, 2006).
Who are the detainees at Guantanamo whom the Administration has termed "the worst of the worst"?
• According to Defense Department documents made public through an Associated Press Freedom of Information Act request, only 8% of Guantanamo detainees have links to Al Qaeda. Only 45 percent of the detainees had committed some kind of hostile act against the US or its allies. Many of the detainees were "kidnapped" by militia in Afghanistan and Pakistan and exchanged to the US military for large cash bounties.
• There were also at least six children between the ages of 13 and 15 at Guantanamo Bay (Boston Globe, April 12, 2003). There were also men in their 80s or older (New York Times, October 29, 2002).
• As long ago as December 22, 2002, the Boston Globe reported that there is "often no terror link at Guantanamo Bay" and that at least 59 of the prisoners at Guantanamo had been sent there over the objections of intelligence officers in Afghanistan who had recommended them for release.
• According to US Army Sgt. Erik Saar, "It didn't make any sense that we were still holding some of these men...there they sat, growing more and more despondent, more and more of them giving up hope and trying to kill themselves...We did have some bad guys, and some talkers, but from what I saw, there weren't many more than a few dozen such characters at Guantanamo." ("Inside the Wire: A Military Intelligence Soldier's Eyewitness Account of Life at Guantanamo")
• Even when US authorities admitted that detainees were completely innocent (like the dozen or so Uighurs from China), they still blocked their release for long periods of time.
• Not a single one of the detainees released from Guantanamo has to date been charged and put on trial in their home countries.
• British intelligence officers have provided evidence proving that three of the British Guantanamo detainees were in fact in the UK during the time they were supposed to have been in al Qaeda training camps.
Far from being "a necessary part of protecting the American people," Guantanamo has become a lightening rod for growing anti-Americanism. In the eyes of the world, it symbolizes our country's departure from the basic principles of justice, freedom and human rights that it claims to uphold. Critics say that imprisoning people without any hope of a fair trial or meaningful due process has damaged American's reputation as a champion of the rule of law, has undermined international respect for human rights conventions, and has served as a recruiting tool for terrorists.
In October 2006, Guantanamo detainees were stripped of the historic right of habeas corpus when the US Congress passed the Military Commissions Act of 2006. Section 6 of the Military Commissions Act strips any non-citizen, declared an "enemy combatant" by the president, of the right to be heard in court to establish his or her innocence, regardless of how long he or she is held without charge.
1. Do you think the US government should adhere to international and its own domestic law in the "war on terror" or should the government be able to fight the war as it sees fit?
2. Do you think torture should be used in certain circumstances or should it be banned? Do you think it can be effective?
3. Deputy associate attorney general Brian Boyle told a federal court on December 2, 2004 that President Bush could imprison in Guantanamo a "little old lady from Switzerland" if she donated to a charity not knowing her money would eventually be used to finance the activity of terrorists. He said the definition of an enemy combatant "is not limited to someone who carries a weapon." It would then be up to her to convince authorities that she is not an enemy combatant.
What are the implications of this approach? Do you think it makes sense?