A deeper objection to the detentions is that they offend the principle of habeas corpus, a historic principle usually described as deriving from the Magna Carta and a founding principle of U.S. law. Under that principle, the state is not entitled to hold someone without charging him. Guantánamo illustrates precisely the risk from which the founders wanted to protect people —that a government might detain people indefinitely, or preventively, for fear of crimes they had yet to commit. It sounds like a technical and antique protection, but the suspension of habeas corpus is considered one of the gravest actions an American president can attempt, on a par with suspending other fundamental freedoms such as freedom of the press and religion. It means that the president can say who might be a threat, and on his word alone, without evidence, have that person locked up.
The Military Commissions
The second flank on which the United States has opened itself to attack —again, unnecessarily —is in the use of specially devised “military commissions” to try the few whom it does charge. Administration officials argue that these new courts, with their new rules about evidence and procedure, are needed in the “War on Terror.” They claim, for example, that the circumstances of seizing their captives do not allow them to gather evidence of enough rigor to stand up in a conventional court, and that in any case, because of heightened security, they might want to keep evidence secret and not show it to defendants —even though that means the defendants cannot challenge the claims. To that, the obvious retort is that if convictions cannot be secured without these special measures, they should not be secured at all. As a final sting in the process, the administration claims the right to continue holding the captives even if they are acquitted, because it defines them as “belligerents” in the “War on Terror” and will feel obliged to release them only when that war is over.
I spent a week at Guantánamo in April 2006 to see the pretrial hearings for the first ten captives to be charged, the first chance to hear the men speak since they had been captured, although no sensitive intelligence was introduced at that stage. The problem that the United States had created for itself was evident from the moment the proceedings began. It was a military environment down to the last detail: the judge, or “presiding officer,” was a navy captain; the prosecutor was from the air force; the defense lawyer was from the army; all were in dress uniform. As a security precaution, even the metal spiral bindings had been removed from notebooks, just in case of an assault clearly impossible in such guarded circumstances.
Despite the appearance of extreme order, the proceedings were legal chaos. Two of the first three captives began by refusing to deal with their Pentagon-appointed lawyers, saying that they did not recognize the court’s legitimacy. The lawyers then said that as they had, in effect, been fired, they had to respect their “clients’ ” wishes and desist from “defending an empty chair.” The judge, as their senior military officer, ordered them to continue. The defense lawyers replied that they needed to ask the state bar associations to which they were affiliated whether they had to put their obligations as serving members of the armed forces above those as lawyers. As the state bar associations slowly started phoning back their varying answers, other lawyers leapt up from the two rows of audience to offer to defend the defense lawyers. The prisoners, in their first outing from the cells in four years, looked stunned.
Those stop-start uncertainties were just one symptom of the illness that plagued the new system —the need to make up its rules as it went along (almost always to the defendants’ disadvantage, the defense lawyers said). The commissions also failed to meet basic standards of a fair trial, argued Colonel Dwight Sullivan, for years head of the team of Pentagon defense lawyers assigned to the defendants. Until late 2006, prisoners did not have the right to hear classified evidence against them (which might be simply the allegations of another prisoner at the base). Defendants’ rights and ability in practice to challenge that evidence was inadequate, said Sullivan; their right to call witnesses was in doubt, and so was their right to pick lawyers to represent them. Most controversially, the evidence against them might have been obtained through torture, of them or others.
It is worth adding that the Pentagon-appointed defense lawyers don’t claim their clients are necessarily innocent, or that any charges should be dropped — they simply want their clients to face a fair trial, as they would under existing court procedures. “We want the old rules,” said Lieutenant Colonel Bryan Broyles, representing one of the prisoners. Colonel Morris Davis, the colorful chief prosecutor until 2007, once compared prosecuting the Guantánamo captives to “dragging Dracula into the sunlight.” 4 But in early 2008, even he had become a critic of the process. Davis went so far as to offer to testify on behalf of at least one defendant, on the grounds that the commission had “a potential for rigged outcomes” and that he had “significant doubts about whether it would deliver full, fair, and open hearings.” 5
By spring 2008, only one trial had been completed —that of David Hicks, an Australian who pleaded guilty in March 2007 to charges of providing material support for terrorism, as part of a plea bargain after five years at Guantánamo. Under the deal, he returned home to serve a nine-month sentence and was set free in December 2007. This was not a help to the United States’ claim to have collected the world’s most dangerous terrorists.
Legal Challenges
The best that can be said in the United States’ defense is that Congress and the Supreme Court have steadily challenged the administration’s views on Guantánamo. Admittedly, that is a slender argument, and to someone waiting more than six years at Guantánamo, one that is grotesquely inadequate. But one of the things worth defending about America is the power of Congress and the courts to challenge the president’s decisions as well as the explicit protections for the individual in the Bill of Rights. In a landmark ruling, the Supreme Court said in 2004 that the United States could not claim that Guantánamo was outside its control, and that prisoners there had the right to challenge their detention in U.S. courts. Two years later, in a complex and far-reaching case brought by a captive named Salim Hamdan, the Supreme Court ruled that enemy combatants were protected by the Geneva Conventions, that President Bush did not have the authority to create new tribunals without Congress’s backing, and that conspiracy was not a war crime under the Uniform Code of Military Justice, the foundation of military law in the United States.6
To address the Court’s point about the illegality of the tribunals, President Bush asked Congress to back new legislation to authorize the military commissions. It did so, and the 2006 Military Commissions Act amends some of the points that were most criticized, qualifying the Court’s right to accept evidence obtained “under duress” and improving the defendant’s right to hear all the evidence against him. But it leaves intact the president’s right simply to define what constitutes torture and to say who is an “enemy combatant,” and asserts the United States’ right to hold such people without charging them and without limit —precisely the power the founders sought to restrict.
Lawyers acting on behalf of those detained at Guantánamo continue to challenge the administration’s contention that habeas corpus does not apply to “enemy combatants.” Two separate congressional bills in 2007 proposed the “restoration of habeas corpus.” For now, though, the uncharged remain in their cells.
Torture
Guantánamo is interlinked with the issue which continues to do extravagant damage to the United States’ reputation: its defense of the use of torture on suspected terrorists, or at least the use of techniques that to most people would be indistinguishable from torture. The United States has not actually come out and said that it embraces torture as a policy, in contravention of its own laws and international laws and treaties. But it has argued either that proposed techniques don’t meet the definition or that the “War on Terror” allows exemptions.
This is an evasion of its own long tradition, stretching back to George Washington. In 1
777, in an order covering prisoners taken in the Battle of Princeton, he wrote: “Treat them with humanity, and let them have no reason to Complain of our Copying the brutal example of the British Army in their treatment of our unfortunate brethren. . . . Provide everything necessary for them on the road.”
Among the United States’ main international commitments to the principle of not using torture (but by no means the only ones) are its ratification in 1955 of the four Geneva Conventions and its ratification in 1994 of the United Nations Convention against Torture (although it appended reservations about the scope of the definition of torture). It passed a federal statute in 1994 against torture and added the War Crimes Act of 1996, while its Uniform Code of Military Justice constrains what its armed forces can do in their treatment of captives.
But the Bush administration has employed an assortment of arguments that these layers of laws should not now constrain what it does in the “War on Terror.” In 2002, in the now notorious “torture memos,” the Department of Justice and the Pentagon drew up arguments limiting the definition of torture to the most extreme mistreatment that might lead to permanent injury or even death. Administration lawyers have also argued that because the “War on Terror” was a war, the president was a wartime commander in chief and so had the authority to set aside U.S. and international law. They also tried to maintain —until the Supreme Court disagreed in 2006 —that “enemy combatants” were not covered by the ban on torture in the Geneva Conventions.
This came to a head in September 2006, when the administration transferred fourteen “high-value prisoners” to Guantánamo from secret CIA “black prisons” in other countries, the first time it had acknowledged the existence of those sites. Among the transferred captives was Khalid Sheikh Mohammed, whom the United States accused of being the architect of the September 11 attacks and formally charged with killing the 2,996 victims.7
But the trials posed a problem because the CIA had used extremely harsh interrogation techniques with Mohammed. It acknowledged that he and two others had been “waterboarded” —a notorious practice which simulates the feeling of drowning.8 Many, including some of President Bush’s close allies, considered waterboarding to be torture.
The controversy erupted again in February 2008 when the Pentagon said it would seek the death penalty against six suspects it claimed were directly involved in the September 11 attacks. To try to preempt a legal challenge, the administration ordered a repeat of the CIA interviews by a “clean team” from the FBI. The new teams used time-tested bonding techniques, U.S. officials said, including giving the suspects Starbucks coffee.9 But the revelation that the CIA had destroyed hours of tapes recording its interrogations opened the way to a further flood of legal challenges from Guantánamo defendants —exactly what the CIA had presumably wanted to forestall.
More generally, the White House stuck to its position that the United States should be allowed to use harsh treatment. On March 8, 2008, President Bush vetoed an intelligence bill which would have prevented the CIA from using waterboarding and other harsh interrogation techniques, and which would have limited the agency to the nineteen techniques in the army field manual. “I cannot sign into law a bill that would prevent me, and future presidents, from authorizing the CIA to . . . [take] all lawful actions necessary to protect Americans from attack,” Bush said.10
However, even some of his former officials disagreed with him. Richard Armitage, the deputy secretary of state from 2001 to 2005, has argued openly, “Whether it’s sleep deprivation or waterboarding, it is torture. It is a horrible blot on our national values and conscience.” 11
Where Should They Go?
American officials, particularly diplomats abroad, have developed a fluent line presenting Guantánamo as a practical problem, not an ethical dilemma. If there were only a home for these people, they declare, then America would shut the camp immediately. In London, the American ambassador and his deputy have devoted a good portion of their working hours to arguing this point. “Why don’t you take them?” they have said to other governments.
In fact, Britain did just that, taking back nine British citizens in 2004 and 2005; it released them immediately, and some have gone on to become minor celebrities on what you might call the human-rights circuit. Britain also agreed to take back five more who had the status of legal residents but were not citizens.
But the United States has found it harder to get rid of others. In 2006, it persuaded Albania to take five Uighurs, a group of Muslims who feel persecuted within China. It still had seventeen left at Guantánamo, part of a group living in Afghanistan at the time of the invasion. Yet although the United States acknowledged that it was not going to try the men and did not regard them as a threat, it could not send them back to China for fear they would be persecuted there, and could not find other governments to take them for fear of offending Beijing.
This plaintive plea —presenting Guantánamo as a mere matter of resettling unwanted and now embarrassing dependents —sidesteps the issue of why the United States picked up the men in the first place, and its inadequate procedures for separating those it could plausibly suspect of terrorism from bystanders.
International Reaction
Britain has been the sharpest of the United States’ close allies in criticizing Guantánamo, the procedures for trial, and the flirting with torture. Given Britain’s stand in supporting America in Iraq and Afghanistan, this criticism has been particularly high-profile and has become a point of difference between the two countries. “The historic tradition of the United States as a beacon of freedom, liberty and of justice deserves the removal of this symbol,” said Lord Goldsmith, attorney general, on May 10, 2006.12
Since Tony Blair stepped down as prime minister, and since Britain began to pull out of Iraq, politicians have been even more sensitive to the political damage that association with Britain’s closest and more controversial ally can bring. In early 2008, David Miliband, foreign secretary, had to apologize to Parliament that the United States had only just told Britain that the CIA had used the British overseas territory of Diego Garcia for two secret “rendition” flights of prisoners to Guantánamo and Morocco. His predecessor Jack Straw and Tony Blair had previously assured the House of Commons, based, they said, on assurances from Washington, that no such flights had taken place.
Other than Britain, European countries have been more muted in direct criticism of Guantánamo, although wanting to distance themselves from practices of rendition and torture. But they, too, have seized on the base as evidence of America’s apparent inhumanity and indifference to legality in the pursuit of its “War on Terror.”
Many Americans argue that their response to 9/11 is their business alone. As one Times online reader in Ohio put it: “Please tell me why I should give a damn about what the world thinks when 3000 AMERICANS (let me repeat: AMERICANS) died on 9/11. Had 3000 Euros died, then maybe you could have a say.” 13
The most trivial response to this sentiment is to note that a sixth of those who died on 9/11 were not American. Another point worth mentioning is that the United States is relying on other countries’ help in the war in Afghanistan and generally, in pursuing terrorism. But the strongest argument is that if America shows no interest in international constraints on such behavior —even the laws and conventions it has drawn up itself —others need not either.
Britain and Terror Laws
That charge of treating such principles too lightly might be directed at Britain as well —and unlike America, it cannot argue that it has a Constitution that might correct the tendency. Although Britain has taken a stand of high principle on Guantánamo itself, the governments of Tony Blair and Gordon Brown have pursued a murkier approach to the protection of civil liberties in the pursuit of terrorism. In the Prevention of Terrorism Act 2005, the government brought in “control orders” which impose an unlimited range of restrictions on a person it suspects of terrorism, including bans on speaking to other named people, on leaving
the house, and on where the person can go. As Liberty, a British civil liberties advocacy group, has argued, these rules “undermine the presumption of innocence —allowing ministers to punish someone without requiring them to prove that they have committed any crime.” The government has also extended the period during which terrorism suspects can be locked up from fourteen days to twenty-eight days, the longest among Western democracies, and it may try for a further extension.
As Britain lacks a unified written Constitution, its protection for individual rights is drawn from historic laws and principles. Legal challenges and a few stubborn judges have upheld the principles in some cases, but the protections are fragile compared to those laid down in the U.S. Constitution. That remains America’s best answer to the abuses of Guantánamo.
The “War on Terror” Does Not Demand Extreme Remedies
The common retort to everything I have argued here is that the “War on Terror” demands new measures —that faced with terrorists who are prepared to lose their lives, we cannot afford the luxury of civil liberties. Tony Blair has used this justification, and Gordon Brown, as well as George W. Bush. But the claim that current threats require novel measures is always made by democratic governments seeking a justification for spying on their citizens, for censorship, or for moving briskly against those they think might be their enemies without the irritating constraints of law. It was invoked during the Second World War, when America interned about 120,000 people of Japanese descent, nearly two-thirds of them American citizens.
Yet that is to set aside what makes Western democracies civilized and humane. As The Economist put it: “To eschew such tools is to fight terrorism with one hand tied behind your back. But that —with one hand tied behind their back —is precisely how democracies ought to fight terrorism.”14
If the “War on Terror” were truly a war, it would have a definable end, as well as a definable enemy. It would then be easier —although still not trivial —to make a case for the temporary removal of some liberties. The West did not, by and large, define the Cold War as that kind of war, demanding special intrusions into civil liberties (the ugly spasm of McCarthyism and its residues being an exception). You might argue that this played some part in its “victory” in that contest, making Western countries more successful, and more attractive by comparison with the Soviet bloc.
In Defense of America Page 11
