Posts Tagged ‘enemy combatants’
This Wednesday will be the tenth anniversary of the US prison camp at Guantánamo Bay. Opened by Bush and, despite all his campaign promises, kept open by Barack Obama, this camp represents the warped state the rule of law has been put into in the US by both these presidents.
The New York Times has an impressive op-ed by Lakhdar Boumediene, one of the most well-known former Guántanamo prisoners, who was held innocent and subjected to enhanced interrogation techniques for seven years before he was released by court order.
Boumediene was head of the Red Crescent’s humanitarian aid for children department in Bosnia-Herzegovina before he was captured off the streets on October 19, 2001 by the US Army, deported to Gitmo, and held incommunicado without recourse to a lawyer, the court system, or Geneva protections. While he was subjected to stress techniques, his two daughters had to grow up for seven years without him. Only when the Supreme Court intervened to stop the Bush administration’s lawless practices, Boumediene was granted access to court, found innocent, and released.
His case represents the entire argument against Guantánamo. No government on Earth should be allowed to indefinitely detain people and treat them like they want without any check by an independent judiciary. That is what we have human rights for. Barack Obama, moreover, is the president who has turned this once controversial policy into bipartisan consensus. Under this president, indefinite detention has even been signed into law.
So to remind everyone of this poignant fact, here’s the op-ed by Boumediene. There’s another one too, by the way, from yet another Guantánamo survivor, Murat Kurnaz.
ON Wednesday, America’s detention camp at Guantánamo Bay will have been open for 10 years. For seven of them, I was held there without explanation or charge. During that time my daughters grew up without me. They were toddlers when I was imprisoned, and were never allowed to visit or speak to me by phone. Most of their letters were returned as “undeliverable,” and the few that I received were so thoroughly and thoughtlessly censored that their messages of love and support were lost.
Some American politicians say that people at Guantánamo are terrorists, but I have never been a terrorist. Had I been brought before a court when I was seized, my children’s lives would not have been torn apart, and my family would not have been thrown into poverty. It was only after the United States Supreme Court ordered the government to defend its actions before a federal judge that I was finally able to clear my name and be with them again.
I left Algeria in 1990 to work abroad. In 1997 my family and I moved to Bosnia and Herzegovina at the request of my employer, the Red Crescent Society of the United Arab Emirates. I served in the Sarajevo office as director of humanitarian aid for children who had lost relatives to violence during the Balkan conflicts. In 1998, I became a Bosnian citizen. We had a good life, but all of that changed after 9/11.
When I arrived at work on the morning of Oct. 19, 2001, an intelligence officer was waiting for me. He asked me to accompany him to answer questions. I did so, voluntarily — but afterward I was told that I could not go home. The United States had demanded that local authorities arrest me and five other men. News reports at the time said the United States believed that I was plotting to blow up its embassy in Sarajevo. I had never — for a second — considered this.
The fact that the United States had made a mistake was clear from the beginning. Bosnia’s highest court investigated the American claim, found that there was no evidence against me and ordered my release. But instead, the moment I was released American agents seized me and the five others. We were tied up like animals and flown to Guantánamo, the American naval base in Cuba. I arrived on Jan. 20, 2002.
I still had faith in American justice. I believed my captors would quickly realize their mistake and let me go. But when I would not give the interrogators the answers they wanted — how could I, when I had done nothing wrong? — they became more and more brutal. I was kept awake for many days straight. I was forced to remain in painful positions for hours at a time. These are things I do not want to write about; I want only to forget.
Unbeknownst to many people, Barack Obama’s ascendency to the presidency has, despite his 2008 campaign promises, done almost nothing to reverse one of the most heinous policies of the Bush-Cheney era: the practice of indefinitely detaining people whom the US state deems “enemy combatants”, or terrorism suspects. Without charges and without recourse to a judge. The mere charge of being a terror suspect can still lead to uncontrollable, unaccountable detention by the American government; this is viewed by both Bush-Cheney and Obama as an inherent, presidential prerogative. No one who is not out of his right mind would not view this as in straightforward contradiction to the rule of law.
But President Obama’s record has just gotten even worse. After months of threatening to veto a bill put forward by the partly Republican-controlled Congress allowing the U.S. military to indefinitely detain anyone, including American citizens, anywhere in the world, including in the U.S., without charges, he has now said that he will sign it into law.
Thereby Obama, the 2008 darling of liberals and progressives, has become the president who has made extrajudicial indefinite detention at the charge of being an “enemy combatant” official law and policy, rather than an exception. Obama is even worse than Bush-Cheney! This should be clear to anyone who is still an Obama fanboy.
When in the 1950s, the McCarthy era, Congress presented Harry Truman with a similar bill allowing the indefinite detention of Communists and other ‘subversive elements’ without charges, Truman vetoed it. But Obama is not such a person. The right not to be detained forever by the state without a fair trial is a fundamental human right, part of the Western juridical tradition, that has just been violated possibly forever by this president.
This becoming law will also mean two things. First, that the U.S. military can now be involved in domestic policing activities (!). Second, that the battleground of the so-called ‘War on Terror’ has now been extended to American soil too. Can you believe that?
At this point, I would officially hope that Obama gets defeated at the polls next year. If Ron Paul’s ideas on economic policy weren’t so nutty, I would support him – a Republican - if he was the nominee.
In one of the least surprising developments imaginable, President Obama – after spending months threatening to veto the Levin/McCain detention bill – yesterday announced that he would instead sign it into law (this is the same individual, of course, who unequivocally vowed when seeking the Democratic nomination to support a filibuster of “any bill that includes retroactive immunity for telecom[s],” only to turn around – once he had the nomination secure — and not only vote against such a filibuster, but to vote in favor of the underlying bill itself, so this is perfectly consistent with his past conduct). As a result, the final version of the Levin/McCain bill will be enshrined as law this week as part of the the 2012 National Defense Authorization Act (NDAA). I wrote about the primary provisions and implications of this bill last week, and won’t repeat those points here.
The ACLU said last night that the bill contains “harmful provisions that some legislators have said could authorize the U.S. military to pick up and imprison without charge or trial civilians, including American citizens, anywhere in the world” and added: “if President Obama signs this bill, it will damage his legacy.” Human Rights Watch said that Obama’s decision “does enormous damage to the rule of law both in the US and abroad” and that “President Obama will go down in history as the president who enshrined indefinite detention without trial in US law.”
Both groups pointed out that this is the first time indefinite detention has been enshrined in law since the McCarthy era of the 1950s, when — as the ACLU put it — “President Truman had the courage to veto” the Internal Security Act of 1950 on the ground that it “would make a mockery of our Bill of Rights” and then watched Congress override the veto. That Act authorized the imprisonment of Communists and other “subversives” without the necessity of full trials or due process (many of the most egregious provisions of that bill were repealed by the 1971 Non-Detention Act, and are now being rejuvenated by these War on Terror policies of indefinite detention). President Obama, needless to say, is not Harry Truman. He’s not even the Candidate Obama of 2008 who repeatedly insisted that due process and security were not mutually exclusive and who condemned indefinite detention as “black hole” injustice.
Barack Obama has abandoned a commitment to veto a new security law that allows the military to indefinitely detain without trial American terrorism suspects arrested on US soil who could then be shipped to Guantánamo Bay.
Human rights groups accused the president of deserting his principles and disregarding the long-established principle that the military is not used in domestic policing. The legislation has also been strongly criticised by libertarians on the right angered at the stripping of individual rights for the duration of “a war that appears to have no end”.
The law, contained in the defence authorisation bill that funds the US military, effectively extends the battlefield in the “war on terror” to the US and applies the established principle that combatants in any war are subject to military detention.
The legislation’s supporters in Congress say it simply codifies existing practice, such as the indefinite detention of alleged terrorists at Guantánamo Bay. But the law’s critics describe it as a draconian piece of legislation that extends the reach of detention without trial to include US citizens arrested in their own country.
Senator Lindsey Graham said the extraordinary measures were necessary because terrorism suspects were wholly different to regular criminals.
“We’re facing an enemy, not a common criminal organisation, who will do anything and everything possible to destroy our way of life,” he said. “When you join al-Qaida you haven’t joined the mafia, you haven’t joined a gang. You’ve joined people who are bent on our destruction and who are a military threat.”
Graham added that it was right that Americans should be subject to the detention law as well as foreigners. “It is not unfair to make an American citizen account for the fact that they decided to help Al Qaeda to kill us all and hold them as long as it takes to find intelligence about what may be coming next,” he said. “And when they say, ‘I want my lawyer,’ you tell them, ‘Shut up. You don’t get a lawyer.’”
Other senators supported the new powers on the grounds that al-Qaida was fighting a war inside the US and that its followers should be treated as combatants, not civilians with constitutional protections.
But another conservative senator, Rand Paul, a strong libertarian, has said “detaining citizens without a court trial is not American” and that if the law passes “the terrorists have won”.
“We’re talking about American citizens who can be taken from the United States and sent to a camp at Guantánamo Bay and held indefinitely. It puts every single citizen American at risk,” he said. “Really, what security does this indefinite detention of Americans give us? The first and flawed premise, both here and in the badly named Patriot Act, is that our pre-9/11 police powers were insufficient to stop terrorism. This is simply not borne out by the facts.”
Paul was backed by Senator Dianne Feinstein.
“Congress is essentially authorising the indefinite imprisonment of American citizens, without charge,” she said. “We are not a nation that locks up its citizens without charge.”
So let it be noted that Obama here has followed the line of the most conservative Republicans.
Interesting piece on Salon that once again highlights how the Obama era, in terms of counterterrorism policy, has for the most part been one of continuation and intensification of the Bush-Cheney era, rather than the break it was promised to be.
At Bagram Air Base in Afghanistan, thousands of detainees are being held under conditions defying international law. And while at Guantanamo Bay the number of detainees is relatively stable, the inmate population at Bagram is growing. Because the Obama administration, like the Bush-Cheney administration before it, regards these detainees – people captured during the Afghanistan war or in the “war” on terror – as “illegal enemy combatants” or “unprivileged belligerents” (a legal category made up by the Bush administration that does not exist in international law), they are deprived of basic legal rights. That is, they have no idea what they are charged with, do not have access to proper legal defence, and so can be held indefinitely.
The article’s author Justin Elliott rightly calls this ‘the Gitmo no one talks about’. Hopefully it will after this article and the Human Rights First report it refers to, because it once again highlights how Obama in this respect is nothing different from his predecessors.
President Obama has presided over a threefold increase in the number of detainees being held at the controversial military detention center at Bagram Air Base, the Afghan cousin of the notorious prison at the Guantanamo Bay Naval Base in Cuba. It’s the latest piece of news that almost certainly would be getting more attention — especially from Democrats — if George W. Bush were still president.
There are currently more than 1,700 detainees at Bagram, up from over 600 at the end of the Bush administration.
The situation at Bagram, especially the legal process that determines whether detainees are released, is the subject of a new report by Human Rights First. It finds that the current system of hearings for detainees “falls short of the requirements of international law” because they are not given “an adequate opportunity to defend themselves against charges that they are collaborating with insurgents and present a threat to U.S. forces.” Human Rights First also argues that cases of unjustified imprisonment are damaging the broader war effort by undermining Afghans’ trust in the military.
What legal status do the detainees at Bagram have? Are they prisoners of war?
The U.S. doesn’t call any of the prisoners we keep in the context of the war on terror — including Afghanistan — “prisoners of war.” They’re called “unprivileged belligerents” which means that they don’t have POW status. That’s because we’re at war with organizations like the Taliban or al-Qaida rather than a country or official government. But these detainees are supposedly being held under the rules of armed conflict.
What does this mean in practice about what sort of legal process they face and what rights these detainees have?
It depends who you ask. There are no laws under the rules of war governing how you treat detainees in this kind of armed conflict. So the position of most other civilized nations, most European commissions and human rights bodies is that international human rights laws should apply. The U.S. government says that those laws don’t apply beyond its own borders, and therefore no laws apply.
Early on at Bagram, there were terrible abuses. There were reports of people being killed in custody and tortured. We believe that is not happening anymore. There is still something called the black jail at Bagram, what the government calls a “screening facility.” It’s called the black jail because there are no windows and no natural light, and no one knows what time of day it is. The conditions there are much worse than at the main prison. People who have been at the black jail complain of being strip-searched in humiliating ways, being subjected to extreme cold temperatures, lights on 24 hours a day, and not having a mattress. But still nothing as bad as the kind of torture that was reported early on.
You went to Afghanistan and attended some of the hearings for Bagram detainees. How does this all work and what did you find?
They are supposed to get a hearing on their detention after 60 days and then at six months and every six months after. The hearings sound good on paper but then when you actually attend them — I hate to use the cliché — it’s Kafkaesque. They’re not allowed to see much of the evidence against them because it’s classified. So a military person will stand up and read the charges — say that the detainee was found to be an IED maker. And the accused will say, “Well what is the evidence against me?” And the military won’t produce it because it’s classified. The accused does not get a lawyer; they get what’s called a personal representative. That’s a field-grade soldier who is assigned to represent a detainee — but they have no legal training beyond a 35-hour course. Many former detainees told me they did not trust their representatives, who are uniformed soldiers. And at least in the public sessions, we did not see the representatives ever challenge evidence. There are also classified sessions, where we of course don’t know what happens.
Yesterday, I expressed the hope that with the demise of Osama bin Laden, America could return to being the constitutional democracy with the rule of law that it was before 9/11.
Luckily (and of course), I’m not the only one who sees this as possibly the most important aspect of yesterday’s operation. Here’s probably the best commentary that I’ve read so far in the wake of Bin Laden’s death, by Peter Beinart of The Daily Beast. Beinart argues that now the figurehead of the 9/11 attacks is gone, it’s time to call an end to the so-called ‘war’ on terror. This doesn’t mean that counterterrorism policies should come to a halt! On the contrary, in the coming time period they should probably be increased to prevent retaliation. But it does mean that the ‘war’ on terrorism should cease to be the primary paradigm through which US (and Western) foreign policy operates.
Because let’s face it: the threat of radical islamist terrorism is not the biggest policy problem the West faces. It isn’t now, and it wasn’t after 9/11. If I’d to point at anything, I’d had to choose between the rise of China or the long-term budgetary and financial problems the US and the West are facing. But certainly not the threat of a bunch of medieval rag tag terrorists who, admittedly, can do short-term symbolic (and personal) damage, but do not pose any fundamental threat to the existence of our society in this form.
The terrorist incidents of 9/11 and those after that can, however, present long-term problems when executive powers choose to overreact, and thereby aim to fundamentally transform the structures of constitutional democracy and the rule of law. This is what happened in America under Bush-Cheney, where an emergency became the pretext for a global, unending, infinite ‘war’ on terror in which anything was allowed. That’s when you got ‘enemy combatants’, indefinite detention, torture and a Gulag archipel of ’black sites’ and Guantánamo Bay. By and large, this ‘legal architecture’ for combating terrorism – with the exception of torture – has been retained by Obama, who added drone attacks and the targeting of American citizens abroad of his own.
When a state of emergency ceases to be the exception and starts to be the norm, then you have a problem. Either it expands (and turns on citizens), or it becomes the baseline on which to build yet other ‘emergency’ measures. So let’s say the state of emergency started on 9/11 (I don’t agree, but let’s say it did); can we then now say that with the demise of Osama bin Laden, who apparently was so important that streets are filled with chanting people, the state of emergency has ended? Can we please do away with renditions, indefinite detention, Guantánamo Bay, illegal wiretapping, and so forth?
The authors below plead yes.
[We] have more to be grateful for than this one villain’s demise. We must give thanks for something broader: The war on terror is over. I don’t mean that there is no threat of further jihadist attack. In the short term, the threat may even rise. I don’t mean that we should abandon all efforts at tracking terrorist cells. Of course not. But the war on terror was a way of seeing the world, explicitly modeled on World War II and the Cold War. It suggested that the struggle against “radical Islam” or “Islamofascism” or “Islamic terrorism” should be the overarching goal of American foreign policy, the prism through which we see the world.
I remember how seductive that vision was in the aftermath of 9/11. It imposed order on the world and gave purpose to American power. But it was a mistake from the start. Even the Cold War was a dangerously overblown vision, which blinded American policymakers to the fact that much of what happened in, say, Vietnam or Angola, had little to do with Moscow or communism. But the war on terror was worse. It made East Asia an afterthought during a critical period in China’s rise; it allowed all manner of dictators to sell their repression in Washington, just as they had during the Cold War; it facilitated America’s descent into torture; it wildly exaggerated the ideological appeal of a jihadist-Salafist movement whose vision of society most Muslims find revolting.
Even before the U.S. killed bin Laden, the Arab Spring had already rendered him irrelevant. President Obama now has his best chance since taking office to acknowledge some simple, long-overdue truths. Terrorism does not represent the greatest threat to American security; debt does, and our anti-terror efforts are exacerbating the problem. We do not face, as we did in the 1930s, a totalitarian foe with global ideological appeal. We face competitors who, in varying ways, have imported aspects of our democratic capitalist ideology, and are beating us at our own game.
Dahlia Lithwick at Slate:
So now what? Legally speaking, there are two broad lessons to derive from the Obama administration’s latest salvo in the war on terror. One is that it shows the need to continue operating outside legal norms indefinitely. The other is that it allows us to declare a symbolic victory over terrorism and return once more to the pre-9/11 regime in which the rule of law is inviolate.
About all we can say with certainty is this: We tortured. We live in a world in which we must contend with information obtained by torture. We now need to decide whether we want to continue to live that way. Writers from ideological backgrounds as diverse as Matt Yglesias and Ross Douthat argue that it is time to return to the paradigm abandoned after 9/11. Let’s put the 9/11 attacks and the existential threat it created behind us. With Bin Laden’s death, let’s simply agree that the objectives of the Bush administration’s massive anti-terror campaign have finally been achieved, and that the time for extra-legal, extra-judicial government programs—from torture, to illegal surveillance, to indefinite detention, to secret trials, to nontrials, to the prison camp at Guantanamo Bay—has now passed. There will be no better marker for the end of this era. There will be no better time to inform the world that our flirtation with a system of shadow-laws was merely situational and that the situation now is over.
But for those who would argue for a continuation of the lawlessness of the post-9/11 legal era, the question is now this: When does it end? If the death of Bin Laden doesn’t signal the end of the 9/11 legal regime, what does? Do we continue to avail ourselves of these illegal methods until every last enemy of America is dead? If torture produced information about the men hiding Bin Laden, does that give America license to torture anyone, anywhere? If the prison camp at Guantanamo is the only reason we were able to obtain intelligence about Bin Laden’s protectors, shouldn’t Guantanamo be expanded and kept open forever? Shouldn’t we start shipping Americans there?
The “war on terror” language was always metaphorical, I realize, but it unloosed a very real Pandora’s box of injustice on a nation that prides itself on its notions of fairness. That makes the highly symbolic death of Bin Laden an apt time—perhaps the last apt time—to ask whether this state of affairs is to be temporary or permanent. If President Obama truly believes, as he said last night, that justice has finally been done, he should use this opportunity to restore the central role of the rule of law in achieving justice in the future.
The policy of indefinitely detaining terrorism suspects – brought together under the made-up ‘legal’ category of ‘illegal enemy combatants’ – in a satellite area of the United States, the prison camp at Guántanamo Bay, was a hallmark of the Bush-Cheney administration’s ‘war’ on terrorism. It has been kept in place by President Obama.
Now, after 9 years of detention in a cage, a prisoner, Awal Gul, has died of heart malfunction at age 48. He was one of 173 still in detention at Gitmo, and of 50 not considered for a trial or release. The Supreme Court in the 2008 Boumediene v. Bush case confirmed the right of detainees to a habeas corpus hearing in a federal court. Gul filed his habeas petition in March 2010, 11 months ago, but the judge, for some reason, never got to reviewing it. Now the guy’s dead.
So much for the rule of law under Barack Obama.
While the U.S. claims he was a Taliban commander, Gul has long insisted that he quit the Taliban a year before the 9/11 attack because, as his lawyer put it, “he was disgusted by the Taliban’s growing penchant for corruption and abuse.”
This episode illustrates that the U.S. Government’s detention policy — still — amounts to imposing life sentences on people without bothering to prove they did anything wrong.
This episode also demonstrates the absurdity of those who claim that President Obama has been oh-so-eagerly trying to close Guantanamo only to be thwarted by a recalcitrant Congress. The Obama administration has sought to “close” the camp only in the most meaningless sense of that word: by moving its defining injustice — indefinite, due-process-free detention — a few thousand miles north onto U.S. soil. But the crux of the Guantanamo travesty — indefinite detention — is something the Obama administration has long planned to preserve, and that has nothing to do with what Congress has or has not done. Indeed, Gul was one of the 50 detainees designated by Obama for that repressive measure. Thus, had Gul survived, the Obama administration would have sought to keep him imprisoned indefinitely without any pretense of charging him with a crime – neither in a military commission nor a real court. Instead, they would have simply continued the Bush/Cheney policy of imprisoning him indefinitely without any charges.
Gul had filed a habeas petition and it was fully argued before a federal court back in March — 11 months ago. The federal judge never got around to issuing a ruling.
Gul’s death — and what turned out to be his due-process-free life sentence — is an important reminder of the heinous detention policies of the U.S.: not as a matter of the Bush/Cheney past, but very much the current U.S. posture as well. The only difference is that there is no more partisan gain to be squeezed from the controversy, so it has blissfully disappeared into the harmonious dead zone of bipartisan consensus.
In another high mark of the presidency of Barack H. Obama, today the first trial of a child soldier in modern U.S. history will commence at Guantánamo Bay. Well done, President Obama, thank you very much! The suspect, the Canadian Omar Khadr, was captured in Afghanistan in 2002 when he was 15 years old. He is suspected of killing an American soldier with a grenade.
What’s more, he will be tried in a military commission: a remnant of the Bush administration’s attempt to try terrorist suspects in quasi-legal military courts with lower standards than the normal federal civilian courts, that has been kept by Obama. So, Khadr also has the honor of being the first detainee to be tried in a military commission under the presidency of Barack Obama.
The Huffington Post has a harrowing, eye-opening story about the details of this case. First of all, Khadr was taken to Afghanistan by his father, an alleged Al Qaeda financier, when he was only 9 years old; according to a report by a Canadian intelligence agency, based on interrogations, he viewed Al Qaeda “through the eyes of a child”. Secondly, Khadr has, according to testimony by former interrogators at the pretrial hearings, been molested and tortured (yelled at, things thrown at, kept awake, threatened with gang rape and death) by U.S. interrogators in Bagram and Guantánamo to extract a confession; before that, by the way, when he was captured, he was already shot twice in the back, blinded in one eye and damaged in his face due to shrapnel. Thirdly, military commission judge Col. Pat Parrish has ruled that his confessions, despite being obtained by molestation, can actually serve as evidence in his trial.
Then there’s another thing. Even if Khadr had killed the soldier, that would have been a normal act of war had he been a soldier himself. Because he’s a civilian, however, it constitutes a criminal act that can be prosecuted in a normal court (like more than 400 terror suspects have been in the past eight years). Yet currently he’s being prosecuted for “war crimes”, because he belongs to a special category of persons made up by the Bush administration and retained by the Obama administration (without the name): the “enemy combatant“, who can be indefinitely detained and must be tried by a specially created quasi-legal military tribunal.
So I think it’s appropriate here to cite the closing lines of the HuffPost article:
It will also create a lasting legacy for the Obama administration. “Forever the Obama administration will be remembered as starting the military commissions with a case of a child soldier,” Jackson said.
Somehow that doesn’t seem like the sort of legacy Obama had in mind when he vowed to close the Gitmo prison down on his first day in office.
Read the whole article at the Huffington Post (and here’s the New York Times).