The evil of indefinite detention and those wanting to de-prioritize it
BY GLENN GREENWALD SUNDAY, JAN 8, 2012 5:18 AM CST salon.com
(updated below – Update II – Update III [Mon.])
This Wednesday will mark the ten-year anniversary of the opening of the Guantanamo prison camp. In The New York Times, one of the camp’s former prisoners, Lakhdar Boumediene, has an incredibly powerful Op-Ed recounting the gross injustice of his due-process-free detention, which lasted seven years. It was clear from the start that the accusations against this Bosnian citizen — who at the time of the 9/11 attack was the Red Crescent Society’s director of humanitarian aid for Bosnian children — were false; indeed, a high court in Bosnia investigated and cleared him of American charges of Terrorism. But U.S. forces nonetheless abducted him, tied him up, shipped him to Guantanamo, and kept him there for seven years with no trial.
In September, 2006, the U.S. Congress passed the Military Commissions Act (MCA) which, among other things, not only authorized the detention of accused Terrorist suspects without a trial, but even explicitly denied all Guantanamo detainees the right of habeas corpus: the Constitutionally mandated procedure to allow prisoners at least one opportunity to convince a court that they are being wrongfully held. Habeas hearings are a much lower form of protection than a full trial: the government need not convince a jury beyond a reasonable doubt that someone is guilty, but rather merely present some credible evidence to justify the imprisonment. But the MCA denied even habeas rights to detainees.
Only once the U.S. Supreme Court, in a 2008 decision bearing Boumediene’s name, ruled that this habeas-denying provision of the MCA was unconstitutional, and that Guantanamo detainees were entitled to habeas corpus review, was the U.S. government finally required to show its evidence against Boumediene in an actual court. A Bush-43 appointed federal judge then ruled that there was no credible evidence to support the accusations against him, and he was finally released in May, 2009. Please first go read Boumediene’s short though gripping account of what this indefinite detention did to his life, and then consider the following points:
(1) Since the Supreme Court’s Boumediene decision, dozens of Guantanamo detainees like Boumediene were finally able to have a federal court review whether there was any credible evidence against them, and the vast majority have won their cases on the ground that there was no such evidence (at one point, 75% of Guantanamo detainees prevailed, though the percentage is now somewhat lower). Had the Military Commissions Act been upheld as constitutional, Boumediene — and dozens of other innocent, now-released Guantanamo detainees — would undoubtedly still be indefinitely imprisoned.
Put another way, if those who voted for the MCA had their way — and that includes all GOP Senators except Lincoln Chafee along with 12 Democrats, including Jay Rockefeller, Debbie Stabenow, Robert Menendez, Frank Lautenberg, and current Interior Secretary Ken Salazar — then Boumediene and dozens of other innocent detainees would still be wrongly imprisoned. Moreover, the Democrats had 46 Senators at the time and could have filibustered but did not; indeed, even many Democrats who voted against the bill anointed John McCain as their negotiator and were prepared to vote for the MCA until the very last weekend when some unrelated changes were made without their input and they were offended on that procedural ground. As Boumediene’s Op-Ed reflects, acting to empower the President to imprison people indefinitely with no charges is one of the most pernicious and dangerous steps a government can take, and yet the U.S. Congress in 2006 did exactly that.
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(2) The Boumediene Supreme Court decision was a 5-4 vote; thus, four Justices of the U.S. Supreme Court voted to uphold the constitutionality of imprisoning human beings indefinitely, possibly for life, without even the minimal protections of a habeas hearing. Had Anthony Kennedy voted with his conservative colleagues, not only would Boumediene and dozens of others still be wrongly imprisoned, but the power which the U.S. has long taught its citizens is the defining hallmark of tyranny — the power to imprison without due process — would have been fully enshrined under American law.
(3) Post-Boumediene, indefinite detention remains a staple of Obama policy. The Obama DOJ has repeatedly argued that the Boumediene ruling should not apply to Bagram, where — the Obama administration insists — it has the power to imprison people with no due process, not even a habeas hearing; the Obama DOJ has succeeded in having that power enshrined. Obama has proposed a law to vest him with powers of “prolonged detention” to allow Terrorist suspects to be imprisoned with no trials. His plan for closing Guantanamo entailed the mere re-location of its indefinite detention system to U.S. soil, where dozens of detainees, at least, would continue to be imprisoned with no trial. And, of course, the President just signed into law the NDAA which contains — as the ACLU put it — “a sweeping worldwide indefinite detention provision,” meaning — as Human Rights Watch put it — that “President Obama will go down in history as the president who enshrined indefinite detention without trial in US law.” Those held at Guantanamo will continue to receive at least a habeas hearing, but those held in other American War on Terror prisons will not. Read Boumediene’s Op-Ed to see why this is so odious.
(4) As we head into Election Year, there is an increasingly common, bizarre and self-evidently repellent tactic being employed by some Democratic partisans against those of us who insist that issues like indefinite detention (along with ongoing killing of civilians in the Muslim world) merit high priority. The argument is that to place emphasis on such issues is to harm President Obama (because he’s responsible for indefinite detention, substantial civilian deaths, and war-risking aggression) while helping competing candidates (such as Gary Johnson or Ron Paul) who vehemently oppose such policies. Thus, so goes this reasoning, to demand that issues like indefinite detention and civilian deaths be prioritized in assessing the presidential race is to subordinate the importance of other issues such as abortion, gay equality, and domestic civil rights enforcement on which Obama and the Democrats are better. Many of these commentators strongly imply, or now even outright state, that only white males are willing to argue for such a prioritization scheme because the de-prioritized issues do not affect them. See here (Megan Carpentier), here (Katha Pollitt) and here (Dylan Matthews) as three of many examples of this grotesque accusatory innuendo.
There are numerous glaring flaws with this divisive tactic. For one, it relies on a full-scale, deliberate distortion of the argument being made; demanding that issues like indefinite detention, civilian deaths and aggressive war be given high priority in the presidential race does not remotely advocatethe de-prioritization of any other issues. For another, many women and ethnic and racial minorities – as well as gay Americans — are making similar arguments about the need for these issues to receive substantial attention in the election.
More important, it’s irrational in the extreme to argue that self-interest or “privilege” would cause someone to want to prioritize issues like indefinite detention and civilian causalities given that the civil liberties and anti-war advocates being so accused are extremely unlikely themselves to be affected by the abuses they protest. For the most part, it isn’t white males being indefinitely detained, rendered, and having their houses and cars exploded with drones — the victims of those policies are people like Boumediene, or Gulet Mohamed, or Jose Padilla, or Awal Gul, or Sami al-Haj, or Binyam Mohamed, or Afghan villagers, or Pakistani families, or Yemeni teenagers.
Put another way, when you spend the vast bulk of your time working against the injustices imposed almost exclusively on minorities and the marginalized — as anyone who works on these war and civil liberties issues by definition does — it’s reprehensible for someone to deploy these sorts of accusatory tactics, all in service of the shallow goal of partisan loyalty enforcement. Those who were actually driven primarily by privileged self-interest would want to de-prioritize these issues in a presidential campaign, not insist on their vital importance.
And that is this real point here: what’s so warped about those who employ this tactic for partisan ends is how easily it could be used against them, rather than by them. All of the authors of the three accusatory examples linked above (Carpentier, Pollitt, and Matthews) — as well as most of those Democrats who have now sunk to explicitly arguingthat such matters are unimportant — are white and non-Muslim. To apply their degraded rhetoric to them, one could easily say:
Of course they don’t consider indefinite detention, invasions and occupations, and civilian slaughter to be disqualifying in a President or even meriting substantial attention in the presidential election — of course they will demand that everyone faithfully support a President who continues to do these things aggressively — because, as non-Muslims, they’re not the ones who will be imprisoned for years with no trial or have their children blown to bits by a U.S. drone or air strike, so what do they care?
I don’t employ or endorse that wretched reasoning, but those who do — such as the authors of the above-linked accusations — should have it applied to them and their own political priorities; they deserve to reap what they are sowing.
Indeed, The Washington Post today has an excellent article on the millions of civilian deaths which the U.S. has caused over the last several decades and how steadfastly those civilian deaths are ignored in U.S. political and media discourse. The article is by John Tirman, the executive director and principal research scientist at the MIT Center for International Studies who just released a book on that topic. One primary reason that these deaths receive such low priority is because Americans are unaffected by these casaulties and can thus easily de-prioritize them as aberrational:
This explains much of our response to the violence in Korea, Vietnam, Iraq and Afghanistan. When the wars went badly and violence escalated, Americans tended to ignore or even blame the victims. The public dismissed the civilians because their high mortality rates, displacement and demolished cities were discordant with our understandings of the missions and the U.S. role in the world.
These attitudes have consequences. Perhaps the most important one — apart from the tensions created with the host governments, which have been quite vocal in protesting civilian casualties — is that indifference provides permission to our military and political leaders to pursue more interventions.