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Liberty & National Security
By Aziz Huq – 12/22/06
*Cross-posted from The Huffington Post
As Cenk Uygur has explained,
Virgil Goode's slur is a naked attempt to link terrorism, immigration,
and Islam in a way that panders to the ugliest kind of nativism. It's
worth stepping back too to look at why Goode is so wholly wrong.
For Goode is far wide
of the mark when he suggests that Muslims in the States are all
immigrants. Indeed, the history of Islam in America, as documented most recently by Genieve Abdo shows how Muslims, have been part of the American story from the very beginning, albeit sometime at the margins.
Muslims have been embroiled in the task of becoming Americans from
the very beginning of the nation. I'm certain that Goode is not alone
in forgetting that many Muslims were living in the United States before
there even was a United States--as slaves. Islam was common in the West
Africa (many Muslims were merchants in the region) when that part of
the world was a hunting ground for slaves. Records from the
Revolutionary era list slave names and reveal many Muslims among those
who made the Middle Passage. And Islam was not snuffed out by the
horrors of slavery. As late as 1837, a slave narrative by one Charles
Ball documents slaves engaged in the five daily prayers that Muslims
do.
A second wave of Muslim immigrants came as part of the effort to
conquer the American West at the end of the nineteenth century. The
first mosque in the United States was built, according to Abdo, in
Ross, North Dakota. A commemorative plaque in Quartzsite, Arizona
celebrates a Syrian immigrant known as "Hi Jolly" (in fact, Hajji Ali),
as "a faithful aid to the U.S. government."
Today, Hajji Ali finds his latter-day counterpart in the FBI agent
Ali Soufan: As Lawrence Wright has movingly recounted, Soufan came
within inches of unraveling the 9/11 plot, failing largely due to the CIA's failure to share its data hoard.
When Goode attacks Muslims as incapable of being Americans, he spits
not only on the grave of men such as Hajji Ali who have (quite
literally) built America, he also tars the dignity and loyalty of proud
government servants such as Soufan.
To say that Muslims or Islam is somehow "alien" to America is thus
at least ironic--and at worst the evidence of an ugly and stupid
prejudice.
Today, an accurate count of Muslims in the U.S. is hard to find.
Estimates ranging from 1.1 million to 7 million. About a third of
American Muslims were born in the United States, and many others are
non-citizens. Large Muslim communities now live in New York, Chicago,
Detroit, and Dallas/Fort Worth-Houston. They include Sunni and Shia;
they encompass the covert, the pious and the lapsed. There are no easy
stereotypes about the manifold ways of being a Muslim American in 2007.
Indeed, Islamic doctrines more broadly are also far more complex
than first appears. As Cenk explained, there is no doubt that there are
some pathological ideologies that claim to be Islamic--and these must
be marginalized and wiped out. But it should not need repeating that
the overwhelming majority of Muslims have no interest in or appetite
for political violence. The sheer number of Muslims in Europe and the
United States, set against the single-digit infrequency of ideological
violence, ought to give the lie to any such claim.
One hundred and fifty years ago, Virgil Goode might have made the
same speech - except where he used "Muslim" today, he would have been
using "Catholic" one hundred and fifty years ago. The now-defunct "Know
Nothing" party panders to fears about Irish and Italian immigration. It
invoked the specter of Northeastern port cities being overrun by the
papist lower classes. Know Nothing politicians accused Catholics of
"ultramontainism," that is owed a first and foremost allegiance to the
Vatican, and thus being incapable of being a loyal American.
Just as the Know-Nothings were proved wrong--and have largely been
left in history's dustbin--so too will Virgil Goode's smear one day
remain only as evidence that America can overcome its darker impulses.
Muslims, like any other community of faith that is rooted here, and
that has links overseas, have been and can be a part of the diverse and
shifting fabric that is today and will be tomorrow America.
Aziz Huq: "Why Virgil Goode is So Wholly Wrong" (pdf)
Tags: Justice, Liberty & National Security, Domestic Counterterrorism
By Jonathan Hafetz – 12/19/06
*Cross-posted from
The Huffington Post
Last week, a district judge in Washington dismissed the case of Guantanamo Bay detainee Salim Hamdan. In June, Hamdan won a landmark Supreme Court decision
striking down President's jerry-rigged system of military trials at
Guantanamo. Now, thanks to a new law stampeded through Congress in
October, Hamdan cannot even get into court. This decision should alarm
all Americans who care about their country's most basic rights and
values.
The fate of the
remaining 400 prisoners at Guantanamo - now entering their fifth year
in detention without charge - hinges on how other courts interpret this
new law, known as the Military Commissions Act of 2006
("MCA"). Most significantly, the act purports to eliminate these
prisoners' right to habeas corpus simply because the President has
concluded they are "illegal enemy combatants." If appeals courts agree
with the district judge's decision, these prisoners will face potential
life sentences without a judicial hearing, let alone a trial, to
determine their guilt or innocence.
The MCA's harm threatens to spill beyond Guantanamo. The President
has taken the radical position that he can now deprive non-citizens
living in this country of their right to habeas corpus. In his view,
the military can snatch any of the millions of immigrants off the
streets of the United States at any time and jail them forever without
charge or court review. For the first time in the Nation's history,
those who live and work among us can be vanished, just like in a Latin
American dictatorship.
More though is at stake than the fate of individual detainees.
Habeas corpus embodies America's commitment to justice and fairness,
essential principles endangered by the siren call of "national
security."
Why then does the President want to get rid of habeas corpus?
Because for the past five years habeas has provided the one meaningful
check on his power to detain and interrogate suspected terrorists
outside the law.
Long celebrated as the Great Writ of Liberty, the Framers made habeas corpus "the bulwark" against arbitrary government
in our Constitution. The Great Writ has the power to unmask and reveal
abuses of power not through lawyers' arguments but through the power of
a judge - as the phrase habeas corpus or "you have the body" suggests -
to order a prisoner be produced for a hearing to inquire into the
facts.
Habeas, then, is not a get-out-of-jail free card. Instead, it
protects what most Americans rightly understand as justice: the
opportunity for all prisoners to be judged, fairly and openly, in a
court of law.
To be sure, the President claims that Guantanamo detainees are "the
worst of the worst." But, if that is true, why has the President has
not produced any evidence to sustain these allegations? No person
detained as an "enemy combatant" has ever testified in a federal court,
and the administration has thus far successfully blocked hearings in
the hundreds of habeas cases filed since the Supreme Court ruled in 2004
that federal courts must hear the detainees' petitions. Indeed,
whenever confronted with the prospect of meaningful court review, the
administration has chosen to free prisoners rather than face a judge's
scrutiny of its detention operations.
In place of habeas, the administration says determinations must be
made by a Combatant Status Review Tribunal ("CSRT"). The CSRT, however,
merely rubber-stamps decisions made by the Defense Department,
imprisoning people based on secret evidence and evidence gained by
torture. According to a recent report
by Seton Hall law school, most detainees were found to be "enemy
combatants" based on evidence they never saw or had any chance to
respond to. Instead of an attorney, detainees were given "personal
representatives," military officers who typically meet with them once
for 10 minutes before their hearing. In America, a person gets more due
process when he contests a parking ticket than a Guantanamo detainee
gets to prove his innocence before he is condemned to years, if not
decades, of imprisonment.
Often, it is the graphic image that galvanizes the public's
attention, whether it is the picture of a human pyramid of prisoners at
Abu Ghraib or of Jose Padilla in blacked-out goggles at a South
Carolina navy prison. But, perhaps the worst form of torture
perpetrated since September 11, and the one habeas corpus is designed
to prevent, is indefinite imprisonment without charge. Unlike convicted
criminals, individuals detained as "enemy combatants" at Guantanamo and
elsewhere have not been tried or sentenced. They do not know when, if
ever, might be released or charged with a crime. Instead, they remain
in perpetual limbo in an amorphous and never-ending "war on terrorism,"
without access to the courts and isolated from family and the rest of
the outside world.
Fortunately, there is a rising tide of support for habeas corpus
from across the political spectrum. Conservative legal scholars have
joined liberals in opposing limits on habeas corpus. Former federal prosecutors, including former Attorney General Janet Reno, have also denounced the administration's policy of illegal detentions. Meanwhile, the television program Sleeper Cell
has dramatized the creeping horror of time spent in isolation for
millions of Americans. There is a growing sense, then, that
administration has gone too far, alienating even some of its staunchest
supporters, by imprisoning people without access to the courts.
Habeas corpus protects freedom and justice - values that cross party lines. As the Supreme Court explained,
habeas helps maintain the "delicate balance of governance" by "serving
as an important judicial check on the Executive's discretion in the
realm of detentions." With the administration's "war on terrorism" well
into its sixth year, it is essential that the courts and Congress
preserve this proud legal tradition from extinction.
Tags: Justice, Liberty & National Security, Checks & Balances, Detention & Habeas Corpus, Domestic Counterterrorism
By Aziz Huq – 12/06/06
*Cross-posted from The Huffington Post
In a federal court of appeals in Washington, DC today, a case has
been filed that casts troubling light on the apparent willingness of
the United States government to detain innocent men as "enemy
combatants" in order to secure international support for its 2003
invasion of Iraq.
Here, in brief, are the facts described in the filing.
In 1949, Maoist China seized a new far western province known to
many of its inhabitants as East Turkistan. Calling the new province
"Xingjian," the Chinese ruthlessly suppressed political and religious
diversity. Thousands of ethnic Uighers, who are Muslim by affiliation,
fled the province.
Among those who sought new lives free of Communist oppression were
twenty-three Uighers, who ended up in northern Afghanistan--long an
entrepot for Afghans, Turkic, and Chinese peoples. They lived in a
village near the eastern town of Jalalabad, doing odd construction and
manual labor. They never fought with either al Qaeda or the Taliban.
After their village was bombed in the American invasion of October
2001, they fled to Pakistan.
In December 2001, the Uighers were seized by Pakistani forces and
handed over to America for $5000 ransoms. It is a matter of public
record that the Pentagon, on the advice of Justice Department lawyers,
did not screen its detainees to determine if it was properly holding
them: It simply assumed everyone seized was a terrorist.
Grabbed by bounty hunters hungry for money, far from any
battlefield, the Uighers were nevertheless taken to Guantánamo. They
were labeled the worst of the worst and confined in cages. In a foreign
land, they were stranded, cut off from their culture, their homes,
their friends, their families.
After three years' detention without any process whatsoever, the
Uighers were given the first chance to present their case to a
"Combatant Status Review Tribunal," or CSRT. The military explicitly
told detainees that the CSRTs were not "habeas review"--that is, the
traditional judicial text for unlawful detentions. It is telling that
CSRTs were conducted at a rate of 50 per week. The Uighers had no
lawyer. They had no way of getting evidence. They were not permitted to
see the evidence against them.
A CSRT, indeed, is a simple affair. The officer says, "You're in al
Qaeda." The detainee says, " No, I'm not, and if you allow me to
present evidence, I can prove it." The officer refuses, stamps the file
"enemy combatant"--and we're done for the day.
Much of this is known. What was not known until now is why this
decision was made. In August 2002, as Iraq war drums was neared their
zenith, Deputy Secretary of State Richard Armitage traveled to China to
talk about the war that the United States had already decided to launch
in Iraq.
But, for the Chinese, the Uighers were an issue. They demanded that
the United States recognize the Uighers as a terrorists, and designate
Uigher political dissidents as members of a terrorist group. Armitage
complied.
It appears that the August 2002 agreement reached with China was
even more detailed. In September 2002, mere weeks after the Armitage
visit, the filing explains, Chinese interrogators visited Guantánamo to
question the Uighers--and used with American authorization coercive
techniques such as environmental manipulation, stress positions, and
stress deprivations.
Let me reiterate what the Uighers' filing credibly asserts: At a
U.S. military facility, the United States permitted Chinese
intelligence agents to torture detainees as quid pro quo for Chinese
support for the Iraq War.
Of course, by time the war began, Chinese support within the U.N.
was, shall we say, less than imperative. In April 2003, the Uighers
were told, in the words of one interrogator "You are innocent. I am
closing the file on you." The United States began looking for a country
that would take the Uighers (who would be tortured if sent to China).
Three years later, several are still there.
The question today is whether the United States will continue to
keep innocent men in cages for years on end. It is a question of
whether to treat human beings as disposable pawns in a grand game of
diplomatic chess. A question of whether our principled belief in human
dignity must yield before the expediencies of illegal and unwise
warmongering.
Last week, the Justice Department issued an apology to Brandon
Mayfield, an Oregon lawyer who had been wrongly detained as a "material
witness" and criminal suspects in the March 2004 Madrid bombing.
Mayfield, another innocent swept up in reckless and feckless
counter-terrorism operations, could have sued--and would doubtless have
secured a considerable (and embarrassing) judgment.
The Uighers, however, cannot invoke the shadow of money damages:
Recent legislation cuts off all money damages claims based on abuse and
mistreatment in global money damages claims. Unlike Mayfield, they must
ask the United States to do the right thing for its own sake.
Apparently, that's not enough for this Administration.
Indeed, the Uighers must cling to sanity and life against dire odds.
Their presence in U.S. hands is a continuing shame. A persistent scar
on America's reputation for honesty and decency.
In September, Congress passed the Military Commission Act, which
purports to limit the ability of federal courts to scrutinize the facts
surrounding certain detention decisions. The case of the Uighers shows
why the government wants to limit scrutiny.
When the Democrats took control of the House and Senate, they
promised accountability. For many Americans and for many citizens of
other nations, it is too late. But for some of the victims of
collateral damage from the Iraq war, the clock has not struck twelve.
We still can do some modicum of justice, save some cinder of face.
We should do so without delay.
Aziz Huq: "Disposable Pawns in a Game of Diplomatic Chess" (pdf)
Tags: Justice, Liberty & National Security, Detention & Habeas Corpus
By Aziz Huq – 11/25/06
*Cross-posted from The Huffington Post
Tomorrow, a German
man arrives at John F. Kennedy international airport. This seemingly
unremarkable event is in fact a moment of personal bravery that ought
to spur national contrition.
Khaled E-Masri, the
arriving German national, tried to come to the United States once
before. When he arrived, he was hauled aside, imprisoned, and then
promptly deported back to his home in Germany.
His crime? Being a danger to the United States? On one of the
federal government famous (and multitudinous) watch lists? Hardly.
Khaled El-Masri was declined entry because he had been mistakenly
kidnapped by the United States in 2003, taken to a U.S. base in
Afghanistan, brutally interrogated, and detained long after the
government--at its highest levels--knew him to be wholly innocent of
any wrongdoing, or even tangential connection to terrorism. Khaled
El-Masri was refused entry because he was an embarrassment: A public
symbol, renowned across the world outside American borders, of the
wretched consequences of America's "extraordinary rendition" policy.
Despite Secretary of State Condoleezza Rice's promise that
intelligence errors would be addressed, and when necessary remedied
through the federal courts, Mr. El-Masri has been denied any meaningful
acknowledgment of his ordeal. While declining to comment on the
El-Masri case in particular, the American ambassador to Germany has
offered regrets for any mistakes that "may have been made." And the
German government reports that American officials tried to buy Mr.
El-Masri's silence, rather than acknowledging their terrible
incompetence.
The Bush Administration's approach to national security is one of
"take no prisoners, have no regrets." Claims of unfettered executive
power, after all, fit ill with the mounting evidence of incompetence
and sloppiness that the El-Masri case too acutely illustrates.
And since acknowledging its error would undermine its recklessly
unilateral vision of national-security policy-making, the
Administration is twisting other branches of government to hide its
sins.
If Mr. El-Masri is allowed to enter the United States he will have the chance to see his case argued in court. Lawyers from the ACLU
who represent Mr. El-Masri will argue on Tuesday before the United
States Court of Appeals for the Fourth Circuit that Mr. El-Masri is
entitled to a remedy for his nightmare. (Full disclosure: in my
capacity at the Brennan Center, I am counsel for a group of retired
American diplomats who have filed an amicus brief arguing that the
denial of a judicial forum to Mr. El-Masri causes grievous harm to
American standing in the world).
The ACLU lawyers in question are superlative--but they face an
uphill slog. The District Court denied Mr. El-Masri's case on national
security grounds before any discovery had began, and the Government
will argue that it was right to do so.
Before the (notoriously conservative) Fourth Circuit, government
lawyers will contend that any confirmation or denial by the United
States or its officials of the facts in Mr. El-Masri's case will harm
the nation's security.
This is despite the fact that Mr. El-Masri has told his tale to the
world's press without rebuttal from the United States. It is despite a
plethora of physical evidence--including chemicals found in Mr.
El-Masri's hair that prove he was taken to Afghanistan and flight logs
that confirm his tale. Despite the fact that another prisoner held in
Afghanistan has confirmed Mr. El-Masri's story. Despite the fact that
several other governments and the intergovernmental Council of Europe
are conducting active inquiries into his case. Despite all this, the
Government insists that to say one word about this most shameful of
public tales would undercut our collective well-being by violating
"state secrets."
The "state secrets" argument that the Government makes in the
El-Masri case has recently been rejected by three district courts in
litigation concerning the NSA wiretapping. In these case, judges
pointed out that Government cannot take a fact that is squarely in the
public domain and simply recharacterize it as "secret." The same logic
should allow Mr. El-Masri his day in court.
Indeed, the "state secrets" privilege has from its inception been
more about covering up government malfeasance and incompetence than it
has been about protecting national security. Historian Louis Fisher
has recently shown that the 1953 Supreme Court case in which the
government first successfully pressed the "state secrets" privilege
involved no real national security issue: Rather, the privilege was
used to conceal government incompetence that would have been the basis
of tort liability.
More recently, the Government invoked the state secrets privilege
last month in the case of Guantánamo detainee Majid Khan, arguing that
Khan not be allowed to talk to his lawyer because he might reveal the techniques used to interrogate him. State secrets, in other words, is a nice euphemism for "how we torture."
Imagine what it takes for Mr. El-Masri to get on a plane to the
United States--to the country that tore a months-long hole in his life,
that treated him as less than a human being, but something disposable,
something close to a nullity. He deserves better than this. He deserves
better than a "state secrets" argument that adds insult to the injuries
already inflicted, an argument that wrongly discards the human
entitlements of Mr. El-Masri, but also treats the American people, and
the broader world public, as fools and an irrelevance.
Aziz Huq: "A Symbol of 'Extraordinary Rendition' Returns to the U.S." (pdf)
Tags: Justice, Liberty & National Security, Detention & Habeas Corpus
By Aziz Huq – 11/14/06
*Cross-posted from The Huffington Post
Oversight is the rallying cry of the new Democrat Class of '06. But
there's a danger that the policy area most obviously in need of real
accountability - our domestic national security agenda - will get short
shrift in the rush to address the Iraq debacle.
Legislators moved quickly on Iraq. Legislation to revive the Special Inspector General for Iraq Reconstruction has already been flagged
for the lame-duck Congress. Inquiry into the myriad iniquities that
make out America's Iraq policy is a no-brainer for the new Congress.
And Rumsfeld's "resignation" is a sure sign that the Administration is
battoning down the hatches in preparation for some heavy weather.
While Iraq is of unquestionable importance, there's also a pressing
need for oversight on domestic security issues: How are our
intelligence agencies and military behaving closer to home? So far, too
little attention has been paid to this question.
For at least the past three years, the American public has been
hearing stories of torture, the "extraordinary rendition" of suspects
to torture, disappearance, detention, and warrantless surveillance. But
to date, Congress has conducted no substantial inquiry into the full
facts around any of these policy areas. In consequence, the executive
branch has been able to control the narrative.
For example, with respect to torture, a plethora of internal
executive branch investigations have produced fragmentary, and likely
misleading, reports on the connection between political appointees in
Washington, who developed legal justifications for torture, and
interrogators out in the field, who put those justifications into
practice. There is a need for sustained oversight that goes beyond the
current quagmire in Iraq. We need to know not only how we have gone
wrong - and violated core individual rights - of innocent men and women
over the past five years, but also how we can avoid those same mistakes
in the future.
This oversight is especially important because the policies at issue
- torture, "extraordinary rendition," wiretapping - were fashioned
without congressional input or oversight: So they will likely continue
unabated, with the attendant harms this causes, until Congress steps in.
At a minimum, we need serious and substantial inquiries soon into the following topics:
- The activities of all military intelligence
gathering agencies in the United States. It's not just the NSA we need
to worry about. Several months ago, Walter Pincus of the Washington
Post wrote a series of superlative articles about a military agency
called CIFA, or the "Counter-Intelligence Field Activities." This
agency had been collecting reams of data on civilians in the United
States, including anti-war protesters. There has never been a full
accounting of CIFA's role or responsibilities - let alone the kind of
synoptic overview of what military intelligence is doing in the United
States, which the American public are long overdue.
- The actual interrogation policies of the CIA, and any
military intelligence agencies that are engaged in detention and
interrogation policies. Startling, the White House continues to resist
disclosure of even the most generic documents on this matter, documents
whose disclosure poses no risk of compromising national security. For
example, there is an August 2002 Justice Department memo, a sibling to
the infamous "torture memo" of the Office of Legal Counsel, which
analysis a series of specific interrogation tactics (Waterboarding?
Cold cell? "long time standing"? Is this where the Vice President gets
his impression that waterboarding is just dandy--and legal?). Did the
Justice Department find these tactics all legal? Ethical? Did it even
ask the ethical question? We don't know until we see the memo and see
how it was operationalized.
- Our relations with foreign intelligence
agencies: The Who's, the What's, and the How's. It is by now clear that
the United States maintains standing relationships with the world's
most brutal and anti-democratic intelligence agencies, including
Syria's, Egypt's, and Jordan's. There has been virtually no disclosure
- and scant public debate - about what we are doing supporting the
least democratic elements in countries we are supposed to be supporting
democracy in.
These are the tips of the proverbial iceberg. Finding out how deep
the iceberg runs is the task of oversight. It's about time we started
getting some answers.
Aziz Huq: "Who Watches the Home Front?" (pdf)
Tags: Justice, Liberty & National Security, Checks & Balances, Detention & Habeas Corpus, Domestic Counterterrorism
By Aziz Huq – 10/06/06
*Cross-posted from The Huffington Post
Two weeks ago, the White House led a chorus baying for the blood of
anyone who stood in the way of the President's Military Commission Act
stood in the way of defending America. After five years' inaction on
detainees and interrogation issues, the White House discovered a need
for speedy action. But a week after the House and Senate voted on the
bill, the enrolled bill is still sitting on President Bush's desk... No
law has changed--yet. As thousands hit the streets to protest
Congress's endorsement of cruel and inhumane interrogation techniques,
and detention without end, it's worth asking: Why the delay? What does
it tell us about the legislation, or the upcoming election campaign?
First and foremost,
the delay illustrates a simple fact: There was no pressing need to act.
The only pressing need driving enactment of the Military Commissions
Act--with its frontal assault on rules against torture, indefinite
detention, and fair trials--was the prospect of November elections.
The Administration pointed to two pressing needs in its campaign for
the legislation: First, it wanted President Bush's "program" of
coercive interrogations in secret CIA prisons around the world to go
forward. Second, it wanted trials by new military commissions for those
held at the Guantánamo Bay to begin again.
But were either of these needs in fact pressing? The Administration's own behavior suggests not.
A senior intelligence official quoted in the Washington Post
explained that "there is no one in CIA custody today" who could be
subject to the coercive techniques allowed by the Act. Setting aside
the question whether torture works as a means of securing accurate
intelligence--it doesn't--it thus appears that the CIA is not now
holding anyone who might have information to prevent an incipient
attack. Like many previous announcement about incipient terrorist
threats, the timing of the White House's warnings had more to do with
politics than threat predication.
The idea that there's a pressing need to begin military commissions
is even more transparently false. According to Defense Department
spokesman Bryan Whitman, no trials are imminent. It will take at least
until next year to rewrite rules, assign judges, and make the necessary arrangements for trials.
This legislation, in other words, had nothing to do with an
immediate need. Instead, we now have repeated confirmation that the
Administration, when confronted by real evidence of threats to American
civilians, has simply failed to act. From the aching minutes that
President Bush first took to register and respond to the news of the
9/11 attacks to the painful and disastrously inadequate response to
Katrina, this Administration's record speaks for itself.
Recent revelations confirm this. Bob Woodward's new book State of
Denial thus exposed the fact that CIA chief George Tenet and Cofer
Black (who faced off against bin Laden in Sudan) warned Condoleezza
Rice in the starkest terms of the looming assault--in a meeting the
Secretary of State cannot even recall.
Woodward's revelation echoes Ron Suskind's account in The One-Percent
Solution of the CIA's desperate effort to warn President Bush in August
2001 of the impending crisis--only to be completely blown off by the
vacationing Chief Executive.
Repeatedly, we learn that our leaders failed to respond to the
threats. Repeatedly, these same leaders are all too ready to conjure
those same threats for narrow, partisan purposes untethered from the
true security needs of the nation.
This year's election season will bring a slew of claims and
counter-claims about who is "toughest" on national security. But
there's little point in hanging tough if you are facing the wrong way.
The Military Commissions Act that sits on President Bush's desk is the
worst sort of political showmanship: For reasons I have explained earlier,
it will do little to keep us safer in the face of any imminent threat.
It is rather a naked attempt to distract us from the gamut of real
problems that today go unaddressed by haphazard, heavy-handed, and
ineffectual executive branch approaches to national security.
Aziz Huq: "Hurry Up and Wait: The Torture Legislation and the November Elections" (pdf)
Tags: Justice, Liberty & National Security, Detention & Habeas Corpus
By Jonathan Hafetz – 10/04/06
*Cross-posted from Balkinization
One of the most significant aspects of the
Military Commissions Act of 2006 (“MCA”) is its repeal of habeas corpus
jurisdiction. Section 7 of the MCA eliminates habeas for an “alien
detained by the United States who has been determined by the United
States to have been properly detained as an enemy combatant or is
awaiting such determination.” Does this provision violate the
Constitution’s Suspension Clause?
Tags: Justice, Liberty & National Security, Detention & Habeas Corpus
By Aziz Huq – 09/28/06
*Cross-posted from The Huffington Post
"Checks and balances" has a nice ring. But it's a currency that doesn't go a long way in Washington today.
The Military
Commissions Act of 2006, of MCA, passed by the House and Senate and
likely to be signed by the President tomorrow is a wholesale assault on
the idea of a limited government under law. It will be taken by the
Bush Administration as a blank check to torture, to detain indefinitely
without just cause, and to trample the values that win America respect
in the world. From tomorrow, counter-terrorism is the "land of do as
you please" for the President and the wise men of the Defense
Department--those savants who brought you Iraq, the gift that keeps on
giving (at least if you're a jihadist).
The MCA comprehensively assaults two ideas: The idea of checking executive power by laws. And the idea of a separate branch of government ensuring
those limits are respected. These are the basic tools of
accountability. The MCA frontally attacks both of these--although only
time will tell whether it succeeds.
How does the Military Commissions Act assail checks and balances? Consider the key issues of detention and torture.
The MCA says nothing explicit about the detention power. Indeed, I
would argue that nothing in the legislation ought to be read to imply
a detention power. Of course, that's not what David Addington and his
colleague Alberto Gonzales will tell us. Rather, they will
contend--publicly or not, it's hard to predict--that the MCA allows the
executive branch power to detain literally anyone it wants provided it
complies with a token gesture at procedure.
Here's how the Addington play for detention power will work. The
opening definition of the Act describes elaborately what an "unlawful
enemy combatant" is. Why? The term is a neologism. The laws of war do
not use or define this term. Indeed, it is a mutation of a phrase used
in a subordinate clause of a 1942 Supreme Court opinion. Nothing else
in the Act directly turns on this definition--although only an "alien
unlawful enemy combatant" can be subject to trial by military
commission. So why bother with the elaborate definition? And why extend
the definition to U.S. citizens as well as non-citizens?
Back in 2004, the Supreme Court, in the now well-known Hamdi v. Rumsfeld decision,
stated that an "enemy combatant" captured in hostilities could be held
for the duration of those hostilities. The Court made very clear it was
talking about only the limited context of the ground war in
Afghanistan, not some amorphous and unending "war on terror." But
Addington et al. will, however, take Hamdi's sanction of detention--and extend it far, far beyond Hamdi. It will be a detention power that applies anywhere and anytime.
There are two ways in which you--citizen or non-citizen, resident of
Topeka or Timbuktu--can become an "unlawful enemy combatant."
The first way is if you engage "in hostilities" or "purposefully and
materially support" hostilities. This sounds reasonable enough until
you realize that no-one has the slightest clue what it means to "purposefully and materially support" hostilities. Do you need to intend to aid the hostilities? Or is it enough to intend to give the support?
Would purposely giving to a charity that then gave money to Hamas
count, even if you knew nothing about the Hamas? What about writing an
editorial that gave "aid and comfort" to the enemy--say, by criticizing
the Administration's Iraq policy?
The second way is--if it's even possible--more dangerous: You are
designated an enemy combatant by a Combatant Status Review
Tribunal--the Potemkin proceedings jerry-rigged at Guantánamo--or you
are designated by "another competent tribunal" created by the Defense
Secretary.
It's the latter that catches in the throat, because the MCA does not
define what Rumsfeld's "competent tribunal" must look like. Rummy
himself with the always-fair-and-impartial Addington? Five Syrian
torturers (like the ones to whom the U.S. sent the hapless Canadian Maher Arar)?
A bunch of guys who flip coins for your liberty? Sure, why not? The MCA
doesn't stop the executive from using any of these, provided Rumsfeld
gave them power and hence made them "competent."
At least for non-citizens, moreover, that would be that: For the
first time in U.S. history, an Act of Congress singles out a group of
persons--non-citizens--and deprives them of any right to challenge
their detention wherever they are picked up. No non-citizen would, the
MCA seems to say, be able to challenge this detention. And while
citizens are certainly entitled to a hearing, the Government will fight
tooth and nail to make sure this hearing doesn't allow any effective
inquiry into the facts on which a detention is based. So no judicial
review--and no accountability.
The same dynamic is at play in the anti-torture rules. The MCA alters a
criminal statute called the War Crimes Act, which imposed criminal
sanctions for certain violations of the laws of war.
Until recently, the United States could proudly point to a long
history of supporting a universal ban on torture, and to a strong
record in ensuring that those who in fact tortured did not escape
accountability. No longer. Now a gamut of horrendous kinds of treatment
will be non-criminal--and, the Bush Administration will argue, within
the discretion of the President.
Start with the substantive anti-torture rules themselves (which
cover both torture and the lesser "cruel and inhuman" treatment). The
MCA contains an incredibly complex and convoluted set of definitions.
Despite all the cant about clarity, the rules no longer in plain
English--as they were in Common Article 3 of the Geneva Conventions --and they are so full of holes they might have been tortured themselves.
Here are three examples of the duplicitous ambiguity of the MCA when it comes to torture and abuse.
First, "cruel and inhuman" treatment is defined as acts that cause
"severe or serious" pain. We know "severe" is worse than "serious"
because "severe" is used to define torture (yes, we'll get there in a moment). But then "serious pain" is defined as "bodily injury" that causes "extreme
physical pain." So "serious" pain is only "extreme" pain? Isn't extreme
worse than serious? It would seem so--but the MCA is deliberately
confusing and circular.
And why the reference to bodily injury? Does that mean that
hypothermia and long-time standing and those other wretched "enhanced"
techniques more fitting for Stalin's gulags than American facilities
are not criminal? Well, yes, I reckon it does.
Second, in another convoluted section, "serious mental pain" is
defined in terms of "non-transitory" harms. Thus, if a CIA agent
threatens to kill a detainee, or to rape his spouse and his
children--all long-recognized as forms of torture--that's not torture;
it's not even the lesser "cruel and inhuman" treatment.
Finally, the torture statute itself. Almost unnoticed, the Bush
Administration has gutted the no-torture rule. It has added the
requirement that a person "specifically" intend to cause the
pain that amounts to torture. This technical change--foreshadowed in
the August 2002 OLC memo--has tremendous implications. It means that
any government agent who says his goal was to get information, and not
to cause pain, hasn't tortured no matter how bad the things he does. If the person water-boards or knee-caps a person, or buries them alive, if it's to get information--well, that's just dandy.
Once again, it's not just the substantive rules that have been
assailed: It's also the mechanisms to ensure the rules are followed.
Under the MCA, there is no accountability for torture. The MCA cuts off
courts' power to hear claims of torture by aliens held as "unlawful
enemy combatants." And it vests the President with power to interpret
the relevant laws of war. So if he says that "cold cell" and sexual
abuse are not "cruel and inhumane," that's the end of the matter.
There are two reasons for hope. First, any reading of the Act that
reaches an untrammeled detention power may be unconstitutional. The
Supreme Court in the 2004 case of Rasul v. Bush--in
what one day will be called "famous footnote 15"--strongly hinted that
even non-citizens captured overseas have Due Process rights. Combined
with another clause of the Constitution called the Suspension Clause,
this means the unchecked detention power and the jurisdiction-strip are
likely unconstitutional.
Second, even if the War Crimes Act has been amended, the Due Process
Clause also ought still to protect detainees held overseas: Torture is
un-American. It's also unconstitutional--and that doesn't change
depending on where it's done. Moreover, the law of war, embodied in the
Geneva Conventions, is clear: There is no "specific intent" requirement
for torture. Countries--whether it's the United States or North
Korea--cannot unilaterally define down the rules against torture.
"Unchecked and unbalanced" government--I argue at length in a forthcoming book--is
antithetical to American government. The MCA is also anathema to our
best traditions. We must hope it is our traditions that win, and not
the selfish partisan posturing that animated this week's votes.
Aziz Huq: "Junking Checks and Balances?" (pdf)
Tags: Justice, Liberty & National Security, Checks & Balances
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